Proposed Rule2022-12608
Air Plan Approval; Albuquerque-Bernalillo County, New Mexico; Excess Emissions
Primary source
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Published
June 13, 2022
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Federal Clean Air Act (CAA, the Act), the Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision from the New Mexico Environment Department (NMED) submitted on October 17, 2016, on behalf of the Albuquerque-Bernalillo County Air Quality Control Board (Air Board). The October 17, 2016 submittal is in response to the EPA's national SIP call on June 12, 2015, concerning excess emissions during periods of Startup, Shutdown, and Malfunction (SSM). The submittal requests the removal of the provisions identified in the 2015 SIP call from the New Mexico SIP. EPA is proposing to determine that the withdrawal of the substantially inadequate provisions from the SIP corrects the deficiency identified in the June 12, 2015 SIP call.
Full Text
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<title>Federal Register, Volume 87 Issue 113 (Monday, June 13, 2022)</title>
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[Federal Register Volume 87, Number 113 (Monday, June 13, 2022)]
[Proposed Rules]
[Pages 35701-35705]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-12608]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2016-0673; FRL-9878-01-R6]
Air Plan Approval; Albuquerque-Bernalillo County, New Mexico;
Excess Emissions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA, the Act), the
Environmental Protection Agency (EPA) is proposing to approve a State
Implementation Plan (SIP) revision from the New Mexico Environment
Department (NMED) submitted on October 17, 2016, on behalf of the
[[Page 35702]]
Albuquerque-Bernalillo County Air Quality Control Board (Air Board).
The October 17, 2016 submittal is in response to the EPA's national SIP
call on June 12, 2015, concerning excess emissions during periods of
Startup, Shutdown, and Malfunction (SSM). The submittal requests the
removal of the provisions identified in the 2015 SIP call from the New
Mexico SIP. EPA is proposing to determine that the withdrawal of the
substantially inadequate provisions from the SIP corrects the
deficiency identified in the June 12, 2015 SIP call.
DATES: Comments must be received on or before July 13, 2022.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2016-0673 at <a href="https://www.regulations.gov">https://www.regulations.gov</a> or via email to
<a href="/cdn-cgi/l/email-protection#dc8fb4bdaef2bdb0bdb29cb9acbdf2bbb3aa"><span class="__cf_email__" data-cfemail="22714a43500c434e434c624752430c454d54">[email protected]</span></a>. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://Regulations.gov">Regulations.gov</a>. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e. on the web, cloud, or other file sharing system). For
additional submission methods, please contact Mr. Alan Shar, (214) 665-
6691, <a href="/cdn-cgi/l/email-protection#88dbe0e9faa6e9e4e9e6c8edf8e9a6efe7fe"><span class="__cf_email__" data-cfemail="d88bb0b9aaf6b9b4b9b698bda8b9f6bfb7ae">[email protected]</span></a>. For the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
Docket: The index to the docket for this action is available
electronically at <a href="http://www.regulations.gov">www.regulations.gov</a> and in hard copy at the EPA
Region 6 Office, 1201 Elm Street, Suite 500, Dallas, Texas 75270. While
all documents in the docket are listed in the index, some information
may be publicly available only at the hard copy location (e.g.,
copyrighted material), and some may not be publicly available at either
location (e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Regional Haze and
SO<INF>2</INF> Section, EPA Region 6 Office, 1201 Elm Street, Suite
500, Dallas, Texas 75270, (214) 665-6691, <a href="/cdn-cgi/l/email-protection#cf9ca7aebde1aea3aea18faabfaee1a8a0b9"><span class="__cf_email__" data-cfemail="ce9da6afbce0afa2afa08eabbeafe0a9a1b8">[email protected]</span></a>. Out of an
abundance of caution for members of the public and our staff, the EPA
Region 6 office may be closed to the public to reduce the risk of
transmitting COVID-19. We encourage the public to submit comments via
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, as there will be a delay in processing
mail and no courier or hand deliveries will be accepted. Please call or
email the contact listed above if you need alternative access to
material indexed but not provided in the docket.
SUPPLEMENTARY INFORMATION:
Throughout this document ``we,'' ``us,'' and ``our'' means the EPA.
Table of Contents
I. Background
A. EPA's 2015 SSM SIP Action
B. New Mexico's Part 49 Provisions on Excess Emissions
II. Analysis of SIP Submission
III. Proposed Action
IV. Environmental Justice Considerations
V. Incorporation by Reference
VI. Statutory and Executive Orders Review
I. Background
A. EPA's 2015 SSM SIP Action
On February 22, 2013, EPA issued a Federal Register proposed
rulemaking action outlining EPA's policy at the time with respect to
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP
provisions and explained how each one either did or did not comply with
the CAA with regard to excess emission events.\1\ For each SIP
provision that the EPA determined to be inconsistent with the CAA, the
EPA proposed to find that the existing SIP provision was substantially
inadequate to meet CAA requirements and thus proposed to issue a SIP
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a
document supplementing and revising what the Agency had previously
proposed on February 22, 2013, in light of a D.C. Circuit decision that
determined the CAA precludes authority of the EPA to create affirmative
defense provisions.\2\ EPA outlined its updated policy that affirmative
defense SIP provisions are not consistent with CAA requirements. EPA
proposed in the supplemental proposal document to apply its revised
interpretation of the Act to specific affirmative defense SIP
provisions and proposed SIP calls for those provisions where
appropriate (79 FR 55920, September 17, 2014).
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\1\ State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, (78 FR 12460) Feb. 22, 2013.
\2\ The term affirmative defense means, in the context of an
enforcement proceeding, a response or defense put forward by a
defendant, regarding which the defendant has the burden of proof,
and the merits of which are independently and objectively evaluated
in a judicial or administrative proceeding.
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On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings
of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying
to Excess Emissions During Periods of Startup, Shutdown and
Malfunction,'' (80 FR 33839, June 12, 2015), hereafter referred to as
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified,
restated, and updated EPA's interpretation that SSM exemption and
affirmative defense SIP provisions are inconsistent with CAA
requirements. The 2015 SSM SIP Action found that certain SIP provisions
in 36 states were substantially inadequate to meet CAA requirements and
issued a SIP call to those states to submit SIP revisions to address
the inadequacies. EPA established an 18-month deadline by which the
affected states had to submit such SIP revisions. States were required
to submit corrective revisions to their SIPs in response to the SIP
calls by November 22, 2016. Included was a SIP call to Albuquerque-
Bernalillo County, New Mexico, and the detailed rationale for the
issuance of that SIP call can be found in the 2015 SSM SIP Action and
the preceding proposed actions. The EPA is not reopening the 2015 SSM
SIP Action here.
EPA issued a Memorandum in October 2020 (2020 Memorandum), which
stated that certain provisions governing SSM periods in SIPs could be
viewed as consistent with CAA requirements.\3\ Importantly, the 2020
Memorandum stated that it ``did not alter in any way the determinations
made in the 2015 SSM SIP Action that identified specific state SIP
provisions that were substantially inadequate to meet the requirements
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on
the SIP call issued to Albuquerque-Bernalillo County, New Mexico in
2015. The 2020 Memorandum did, however, indicate the EPA's intent at
the time to review SIP calls that were issued in the 2015 SSM SIP
Action to determine whether the EPA should maintain, modify, or
[[Page 35703]]
withdraw particular SIP calls through future agency actions.
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\3\ October 9, 2020, Memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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On September 30, 2021, EPA's Deputy Administrator withdrew the 2020
Memorandum and announced the EPA's return to the policy articulated in
the 2015 SSM SIP Action (2021 Memorandum).\4\ As articulated in the
2021 Memorandum, SIP provisions that contain exemptions or affirmative
defense provisions are not consistent with CAA requirements and,
therefore, generally are not approvable if contained in a SIP
submission. This policy approach is intended to ensure that all
communities and populations, including minority, low-income and
indigenous populations overburdened by air pollution, receive the full
health and environmental protections provided by the CAA.\5\ The 2021
Memorandum also retracted the prior statement from the 2020 Memorandum
of EPA's plans to review and potentially modify or withdraw particular
SIP calls. That statement no longer reflects EPA's intent. EPA intends
to implement the principles laid out in the 2015 SSM SIP Action as the
agency takes action on SIP submissions, including this SIP submittal
provided in response to the 2015 SIP call.
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\4\ September 30, 2021, Memorandum ``Withdrawal of the October
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions
in State Implementation Plans and Implementation of the Prior
Policy,'' from Janet McCabe, Deputy Administrator.
\5\ Section J, June 12, 2015 (80 FR 33985).
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B. New Mexico's Part 49 Provisions on Excess Emissions
New Mexico Administrative Code (NMAC), Title 20 Environmental
Protection, Chapter 11 Albuquerque-Bernalillo County Air Quality Board,
Part 49 Excess Emissions (20.11.49 NMAC) (hereinafter ``Part 49'') was
approved by the EPA into the New Mexico SIP on February 4, 2010, and
became federally effective on April 5, 2010.
As a part of the EPA's 2015 SSM SIP Action, the EPA made a finding
that certain provisions in Part 49--namely, 20.11.49.16.A NMAC,
20.11.49.16.B NMAC, and 20.11.49.16.C NMAC of the New Mexico SIP--are
substantially inadequate to meet CAA requirements, and thus issued a
SIP call with respect to these provisions because these provisions
provide for an affirmative defense.\6\ Although not part of the finding
in the 2015 SIP call, the EPA noted that removal of 20.11.49.16.A NMAC,
20.11.49.16.B NMAC and 20.11.49.16.C NMAC from the New Mexico SIP would
render other sections of 20.11.49 NMAC of the New Mexico SIP
superfluous and no longer operative.\7\
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\6\ See Affected States in EPA Region VI, section IX.G.4, June
12, 2015 (80 FR 33968).
\7\ More specifically, EPA stated that ``removal of
20.11.49.16.A NMAC, 20.11.49.16.B NMAC and 20.11.49.16.C NMAC from
the SIP will render 20.11.49.16.D NMAC, 20.11.49.16.E, 20.11.49.15.B
(15) (concerning reporting by a source of intent to assert an
affirmative defense for a violation), a portion of 20.11.49.6 NMAC
(concerning the objective of establishing affirmative defense
provisions) and 20.11.49.18 NMAC (concerning actions where a
determination has been made under 20.11.49.16.E NMAC) superfluous
and no longer operative, and the EPA thus recommends that these
provisions be removed as well.'' (80 FR 33968, June 12, 2015).
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II. Analysis of SIP Submission
In response to the EPA's June 12, 2015 SIP call, NMED (on behalf of
the Air Board) requested by letter dated October 17, 2016, that the EPA
approve the removal of 20.11.49 NMAC in its entirety from the New
Mexico SIP, including the three provisions found by EPA's June 12, 2015
SIP call to be substantially inadequate to meet CAA requirements.\8\
The removal of 20.11.49 NMAC from the New Mexico SIP eliminates the
provisions related to excess emissions, including the affirmative
defense provisions identified in the June 12, 2015 SIP call. EPA
believes that removal of 20.11.49 NMAC from the New Mexico SIP will not
affect the adequacy of the remaining portions of the New Mexico SIP.
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\8\ October 17, 2016, submittal letter from NMED Cabinet
Secretary to EPA Region 6 Regional Administrator.
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Although not part of the SIP submittal at issue in this proposed
rulemaking, the Air Board amended Part 49 on September 14, 2016, to
replace the affirmative defense provisions with ``state-only''
enforcement discretion provisions. EPA has reviewed the language of
20.11.49 NMAC, as amended, and notes that the enforcement discretion
criteria apply only to the State's own enforcement personnel and not to
the EPA or others.\9\ Therefore, if finalized as proposed, the New
Mexico SIP applicable to sources located in Albuquerque-Bernalillo
County will not include specific provisions relating to excess
emissions during SSM periods; however, Part 49, as amended, does
provide ``state-only'' enforcement discretion provisions applicable to
excess emissions by such sources and how violations related to excess
emissions will be handled by state enforcement personnel.
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\9\ 20.11.49.16 NMAC states, in part, ``The owner or operator of
a source who contends that an excess emission occurred during
startup, shutdown, malfunction, or emergency may submit to the
department a supplemental report . . . The information in the
supplemental report may be considered by the department at its sole
discretion and is not intended to be enforceable in a legal
proceeding by any party or to limit the enforcement authority of any
party. 20.11.49.16 NMAC shall not be construed to preclude EPA or
federal court jurisdiction under Section 113 of the federal act to
assess civil penalties or other forms of relief for periods of
excess emissions, to prevent EPA or the courts from considering the
statutory factors for the assessment of civil penalties under
Section 113 of the federal act, or to interfere with the rights of
litigants to pursue enforcement consistent with their rights under
the citizen suit provision of Section 304 of the federal act.''
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The submittal also includes an analysis to demonstrate compliance
with section 110(l) of the Act.\10\ Elimination of the Part 49
provisions from the New Mexico SIP is not expected to lead to any
emissions increase. Therefore, we do not believe the proposed revisions
would interfere with attainment and reasonable further progress, or any
applicable requirement of the CAA. Consequently, we are proposing to
approve the removal of 20.11.49 NMAC Excess Emissions from the
Albuquerque-Bernalillo County provisions of the New Mexico SIP.
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\10\ See pdf pages 229-233 of the submittal Docket ID No. EPA-
R06-OAR-2016-0673 available at <a href="http://www.regulations.gov">www.regulations.gov</a>.
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III. Proposed Action
The EPA is proposing to approve a revision to the Albuquerque-
Bernalillo County provisions of the New Mexico SIP submitted on October
17, 2016, in response to the EPA's national SIP call of June 12, 2015,
concerning excess emissions during periods of SSM. More specifically,
we are proposing to approve the removal of Part 49 Excess Emissions
from the Albuquerque-Bernalillo County provisions of the New Mexico
SIP. We are proposing to approve these revisions in accordance with
section 110 of the Act. EPA is further proposing to determine that such
SIP revision corrects the deficiency identified in the June 12, 2015
SIP call. EPA is not reopening the 2015 SSM SIP Action and is only
taking comment on whether this proposed SIP revision is consistent with
CAA requirements and whether it addresses the substantial inadequacy in
the specific Albuquerque-Bernalillo County provisions identified in the
2015 SSM SIP Action.
IV. Environmental Justice Considerations
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations
[[Page 35704]]
and low-income populations to the greatest extent practicable and
permitted by law. The EPA defines environmental justice (EJ) as ``the
fair treatment and meaningful involvement of all people regardless of
race, color, national origin, or income with respect to the
development, implementation, and enforcement of environmental laws,
regulations, and policies.'' The EPA further defines the term fair
treatment to mean that ``no group of people should bear a
disproportionate burden of environmental harms and risks, including
those resulting from the negative environmental consequences of
industrial, governmental, and commercial operations or programs and
policies.'' \11\ EPA is providing additional analysis of environmental
justice associated with this action for the purpose of providing
information to the public.
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\11\ <a href="https://www.epa.gov/environmentaljustice/learn-about-environmental-justice">https://www.epa.gov/environmentaljustice/learn-about-environmental-justice</a>.
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EPA reviewed demographic data, which provides an assessment of
individual demographic groups of the populations living within
Bernalillo County.\12\ The EPA then compared the data to the national
average for each of the demographic groups.\13\ The results of the
demographic analysis indicate that, for populations within Bernalillo
County, the percent people of color (persons who reported their race as
a category other than White alone (not Hispanic or Latino)) is
significantly higher than the national average (61.2 percent versus 40
percent). Within people of color, the percent of the population that is
Hispanic or Latino is higher than the national averages (50.3 percent
versus 18.5 percent) and the percent of the population that is American
Indian/Alaska Native is also higher than the national average (6.3
percent versus 1.3 percent). The percent of people living below the
poverty level in Bernalillo County is higher than the national average
(15.3 percent versus 11.4 percent). The percent of people over 25 with
a high school diploma in Bernalillo County is similar to the national
average (90 percent versus 88.5 percent), while the percent with a
Bachelor's degree or higher is slightly higher than the national
average (35.3 percent versus 32.9 percent).
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\12\ <a href="https://www.census.gov/quickfacts/fact/table/NM,bernalillocountynewmexico,US/PST045221">https://www.census.gov/quickfacts/fact/table/NM,bernalillocountynewmexico,US/PST045221</a>.
\13\ Id.
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Communities in close proximity to and/or downwind of industrial
sources may be subject to disproportionate environmental impacts of
excess emissions. Short- and/or long-term exposure to air pollution has
been associated with a wide range of human health effects including
increased respiratory symptoms, hospitalization for heart or lung
diseases, and even premature death. Excess emissions during startups,
shutdowns, and malfunctions exceed applicable emission limitations and
can be considerably higher than emissions under normal steady-state
operations. As to all population groups within the Bernalillo County
area, as explained below we believe that this proposed action will be
beneficial and will tend to reduce impacts. As discussed earlier in
this notice, this rulemaking, if finalized as proposed, would result in
the removal of the provisions in the New Mexico SIP applicable to
Bernalillo County that provide sources emitting pollutants in excess of
otherwise allowable amounts with the opportunity to assert an
affirmative defense to violations involving excess emissions during
startup, shutdown, and malfunctions. Removal of such impermissible
affirmative defense provisions from the SIP is necessary to preserve
the enforcement structure of the CAA, to preserve the jurisdiction of
courts to adjudicate questions of liability and remedies in judicial
enforcement actions and to preserve the potential for enforcement by
the EPA and other parties under the citizen suit provision as an
effective deterrent to violations. If finalized as proposed, this
action is intended to ensure that all communities and populations
across Bernalillo County and downwind areas, including people of color
and low-income and indigenous populations overburdened by pollution,
receive the full human health and environmental protection provided by
the CAA through the removal of affirmative defense provisions that have
interfered with the enforcement structure of the CAA by raising
inappropriate impediments to enforcement by states, the EPA, or
citizens. We therefore propose to determine that this rule, if
finalized, will not have disproportionately high or adverse human
health or environmental effects on communities with environmental
justice concerns.
V. Incorporation by Reference
In this action, we are proposing to include in a final rule
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5, we are proposing to incorporate by
reference revisions to Albuquerque-Bernalillo County's regulations, as
described in the Proposed Action section above. The EPA has made, and
will continue to make, these documents generally available
electronically through <a href="http://www.regulations.gov">www.regulations.gov</a> and in hard copy at the EPA
Region 6 office.
VI. Statutory and Executive Order Reviews
Under the 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 Act. Accordingly, this
action merely proposes to approve 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) and 13563 (76 FR 3821, January 21,
2011);
<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 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, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of
[[Page 35705]]
Indian country, the proposed rule does not have tribal implications and
will not impose substantial direct costs on tribal governments or
preempt tribal law as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Particulate matter, Sulfur dioxide, Reporting
and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 1, 2022.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2022-12608 Filed 6-10-22; 8:45 am]
BILLING CODE 6560-50-P
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