[Federal Register Volume 74, Number 61 (Wednesday, April 1, 2009)]
[Rules and Regulations]
[Pages 14731-14734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7296]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2008-0509; FRL-8788-8]


Approval and Promulgation of Implementation Plans; New Mexico; 
Albuquerque/Bernalillo County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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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:
    <bullet> http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
    <bullet> E-mail: Mr. Guy Donaldson at <a href="/cdn-cgi/l/email-protection#93f7fcfdf2fff7e0fcfdbdf4e6ead3f6e3f2bdf4fce5"><span class="__cf_email__" data-cfemail="06626968676a627569682861737f4663766728616970">[email protected]</span></a>. Please 
also send a copy by email to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
    <bullet> Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
    <bullet> Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
    <bullet> 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

[[Page 14732]]

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 (214) 665-7186; fax number 
214-665-7263; e-mail address <a href="/cdn-cgi/l/email-protection#573c3825332d3e793d38321732273679303821"><span class="__cf_email__" data-cfemail="6d06021f091704430702082d081d0c430a021b">[email protected]</span></a>.

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:
    <bullet> 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.
    <bullet> The stabilization of new and existing unpaved roadways and 
unpaved lots in Bernalillo County to abate fugitive dust.
    <bullet> A requirement that permits be obtained for surface 
disturbing activities involving \3/4\ acre or more.
    <bullet> Control of greenwaste (e.g., grass clippings or leaves) 
from being deposited on publicly owned properties, where it can become 
airborne.
    <bullet> Provisions for programmatic permits for routine 
maintenance, routine surface disturbance activities, or routine ongoing 
active operations.
    <bullet> Provisions for construction permits.
    <bullet> Re-seeding specifications for native plants.
    <bullet> Provisions for public outreach and training on fugitive 
dust for those involved in earthwork activities.
    <bullet> Guidelines for responding to complaints, especially where 
damage to private property by fugitive dust is alleged.
    <bullet> 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

[[Page 14733]]

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:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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.


0
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. 7402 et seq.

Subpart GG--New Mexico

0
2. In Sec.  52.1620(c), the second table entitled ``EPA Approved 
Albuquerque/Bernalillo County, NN Regulations,'' is amended as follows:
0
a. Under the centered heading ``Albuquerque/Bernalillo County, Air 
Quality Control Regulations,'' by removing the entry for ``Regulation 
No. 8, Airborne Particulate Matter;'' and
0
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:


Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

[[Page 14734]]



                           EPA Approved Albuquerque/Bernalillo County, NN Regulations
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                                                       State approval/
         State citation              Title/subject        effective     EPA approval date        Explanation
                                                            date
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----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
   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             3/17/2008  April 1, 2009
                                   Control.                             [Insert FR page
                                                                        where document
                                                                        begins].
 
                                                  * * * * * * *
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[FR Doc. E9-7296 Filed 3-31-09; 8:45 am]
BILLING CODE 6560-50-P


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