Proposed Rule2022-21246
Air Plan Approval; New Mexico; Excess Emissions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 30, 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 13, 2016. The submittal is in response to 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 approve the SIP revision and proposing to determine that such SIP revision corrects the deficiency identified in the June 12, 2015 SIP call.
Full Text
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<title>Federal Register, Volume 87 Issue 189 (Friday, September 30, 2022)</title>
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[Federal Register Volume 87, Number 189 (Friday, September 30, 2022)]
[Proposed Rules]
[Pages 59373-59376]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-21246]
[[Page 59373]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2016-0676; FRL-10186-01-R6]
Air Plan Approval; 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 13, 2016. The submittal is in
response to 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 approve the
SIP revision and proposing to determine that such SIP revision corrects
the deficiency identified in the June 12, 2015 SIP call.
DATES: Comments must be received on or before October 31, 2022.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2016-0676 at <a href="https://www.regulations.gov">https://www.regulations.gov</a> or via email to
<a href="/cdn-cgi/l/email-protection#5d0e353c2f733c313c331d382d3c733a322b"><span class="__cf_email__" data-cfemail="cb98a3aab9e5aaa7aaa58baebbaae5aca4bd">[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>. 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#2c7f444d5e024d404d426c495c4d024b435a"><span class="__cf_email__" data-cfemail="fead969f8cd09f929f90be9b8e9fd0999188">[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#84d7ece5f6aae5e8e5eac4e1f4e5aae3ebf2"><span class="__cf_email__" data-cfemail="b7e4dfd6c599d6dbd6d9f7d2c7d699d0d8c1">[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 SIP Action
B. New Mexico's Part 7 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 SIP Action
On February 22, 2013, EPA issued a Federal Register notice of
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 EPA determined to be inconsistent with the
CAA, 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 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, including New
Mexico, were required to submit corrective revisions to their SIPs in
response to the SIP calls by November 22, 2016.
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
[[Page 59374]]
had no direct impact on the SIP call issued to New Mexico in 2015. The
2020 Memorandum did, however, indicate EPA's intent at the time to
review SIP calls that were issued in the 2015 SSM SIP Action to
determine whether EPA should maintain, modify, or 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 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 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 7 Excess Emissions
New Mexico Administrative Code (NMAC), Title 20 Environmental
Protection, Chapter 2 Air Quality (Statewide), Part 7 Excess Emissions
(20.2.7 NMAC) was approved by EPA into the New Mexico SIP on September
14, 2009 (74 FR 46910) and became federally effective on November 13,
2009.
As a part of EPA's 2015 SSM SIP Action, EPA made a finding that
certain provisions in Part 7--namely, 20.2.7.111 NMAC, 20.2.7.112 NMAC,
and 20.2.7.113 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,
removal of 20.2.7.111 NMAC, 20.2.7.112 NMAC, and 20.2.7.113 NMAC from
the New Mexico SIP would render 20.2.7.6(B) NMAC, 20.2.7.110(B)(15)
NMAC, 20.2.7.115 NMAC, and 20.2.7.116 NMAC no longer operative or
problematic for SIP compliance purposes because they refer to or cross-
reference the substantially inadequate provisions of 20.2.7 NMAC.\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, removal of 20.2.7.111 NMAC, 20.2.7.112
NMAC, and 20.2.7.113 NMAC from the SIP will render 20.2.7.6(B)
(concerning establishing criteria to claim an affirmative defense);
20.2.7.110(B)(15) (concerning extension of notification report
deadline upon receipt of written request from the owner or
operator); 20.2.7.115 NMAC (concerning review of the department's
determinations under sections 111, 112, and 113); and 20.2.7.116
NMAC (concerning future enforcement action) no longer operative or
problematic for SIP compliance purposes as they are interrelated and
refer to or cross-reference the substantially inadequate provisions
of Part 7--being proposed for removal from the SIP in response to
June 12, 2015 SIP call Action--and EPA concurs with the State action
and recommends that these provisions be removed from the SIP as
well.
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II. Analysis of SIP Submission
In response to EPA's June 12, 2015 SIP call, NMED requested by
letter dated October 13, 2016,\8\ that EPA approve removal of
20.2.7.111 NMAC, 20.2.7.112 NMAC and 20.2.7.113 NMAC found by EPA's
June 12, 2015 SIP call to be substantially inadequate to meet CAA
requirements. The removal of these provisions from the New Mexico SIP
eliminates the affirmative defense provisions identified in the June
12, 2015 SIP call. In addition, NMED requested that 20.2.7.6(B) NMAC,
20.2.7.110(B)(15) NMAC, 20.2.7.115 NMAC, and 20.2.7.116 NMAC be removed
from the New Mexico SIP as well. EPA believes that removal of these
seven provisions from the New Mexico SIP will not affect the adequacy
of the remaining portions of the New Mexico SIP.
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\8\ Attachment A, October 13, 2016, submittal letter from NMED
Cabinet Secretary to EPA Region 6 Regional Administrator.
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Although certain provisions of Part 7 (20.2.7.111 NMAC, 20.2.7.112
NMAC, 20.2.7.113 NMAC, 20.2.7.6(B) NMAC, 20.2.7.110(B)(15) NMAC,
20.2.7.115 NMAC, and 20.2.7.116 NMAC) are being proposed for removal
from the EPA-approved New Mexico SIP, NMED intends to retain Part 7 in
its entirety as a matter of state law, outside of the SIP, as a
``state-only'' rule. It is EPA's position that the ``state-only''
measure will apply only to the state's own enforcement personnel and
not to EPA or to others.\9\ Since these provisions are only applicable
to the State air agency, EPA's view is that the provisions need not be
included within the SIP. Thus, EPA does not object to states or local
air agencies that elect to revise their SIPs ``to remove these
provisions to avoid any unnecessary confusion.'' \10\
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\9\ June 12, 2015 (80 FR 33958).
\10\ June 12, 2015 (80 FR 33958).
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The submittal also includes an analysis to demonstrate compliance
with section 110(l) of the Act.\11\ Elimination of the above-mentioned
provisions of Part 7 from the New Mexico SIP is not expected to lead to
any emissions increase. We do not believe the proposed revisions would
interfere with attainment and reasonable further progress, or any
applicable requirement of the CAA. Thus, we find that EPA's approval
would be consistent with section 110(l). Consequently, we are proposing
to approve the removal of the above-referenced provisions of Part 7
Excess Emissions from the New Mexico SIP. 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;
however, in light of Oklahoma Dept. of Environmental Quality v. EPA,
740 F.3d 185 (D.C. Cir. 2014), the SIP applies to non-reservation
Indian allotments within the State.
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\11\ Pages 11-14 of the SIP submittal, Docket ID No. EPA-R06-
OAR-2016-0676.
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III. Proposed Action
EPA is proposing to approve a revision to the New Mexico SIP
submitted on October 13, 2016, in response to 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
20.2.7.111 NMAC, 20.2.7.112 NMAC, 20.2.7.113 NMAC, 20.2.7.6(B) NMAC,
20.2.7.110(B)(15) NMAC, 20.2.7.115 NMAC, and 20.2.7.116 NMAC of Part 7
Excess Emissions from 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 revisions correct the
deficiencies identified in the June 12, 2015 SIP call with respect to
the New Mexico SIP. EPA is not reopening the 2015 SSM SIP Action and is
only taking comment on whether the proposed SIP revisions are
consistent with CAA requirements and whether they addresses the
substantial inadequacy in the specific 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
[[Page 59375]]
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 and low-income populations to the greatest extent
practicable and permitted by law. 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.'' 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.'' \12\ 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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\12\ <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 New
Mexico.\13\ EPA then compared the data to the national average for each
of the demographic groups. The results of the demographic analysis
indicate that, for populations within New Mexico, 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 (64.1 percent versus 31.7 percent). The percent of the
state population that is Hispanic or Latino is higher than the national
averages (50.1 percent versus 18.9 percent) and the percent of the
population that is American Indian/Alaska Native is also higher than
the national average (11.2 percent versus 1.3 percent). The percent of
people living below the poverty level in New Mexico is higher than the
national average (16.8 percent versus 11.4 percent). The percent of
people in New Mexico over age 25 with a high school diploma is lower
than the national average (86.5 percent versus 88.5 percent), and the
percent with a Bachelor's degree or higher is also slightly lower than
the national average (28.1 percent versus 32.9 percent).
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\13\ <a href="https://www.census.gov/quickfacts/NM">https://www.census.gov/quickfacts/NM</a>?.
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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 periods of
SSM can be considerably higher than emissions under normal steady-state
operations.
As to all population groups within the State of New Mexico, we
believe that this proposed action will be beneficial and may reduce
impacts as explained below. 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 all counties in the
State, except 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 SSM events. Removal of such impermissible
affirmative defense provisions from the SIP is necessary to preserve
the enforcement structure of the CAA, the jurisdiction of courts to
adjudicate questions of liability and remedies in judicial enforcement
actions, and 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 overburdened communities and affected populations across the State
and downwind areas receive the full human health and environmental
protection provided by the CAA. 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 remove
20.2.7.111 NMAC, 20.2.7.112 NMAC, 20.2.7.113 NMAC, 20.2.7.6(B) NMAC,
20.2.7.110(B)(15) NMAC, 20.2.7.115 NMAC, and 20.2.7.116 NMAC of Part 7
Excess Emissions from the New Mexico SIP, as described in the Proposed
Action section above. 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 Indian
country, the proposed rule does not have tribal implications and will
not impose substantial direct costs on tribal
[[Page 59376]]
governments or preempt tribal law as specified by Executive Order 13175
(65 FR 67249, November 9, 2000). However, in light of Oklahoma Dept. of
Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014), this
proposed rule, if finalized as proposed, will apply to non-reservation
Indian allotments within the state and, therefore, has tribal
implications as specified in E.O. 13175. This action will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. This action will not impose
substantial direct compliance costs on federally recognized tribal
governments because no actions will be required of tribal governments.
This action will also not preempt tribal law as no tribe in New Mexico
implements a Tribal Implementation Program under the CAA. Consistent
with the EPA Policy on Consultation and Coordination with Indian Tribes
(May 4, 2011), EPA has offered consultation to tribal governments that
may be affected by this action.
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: September 26, 2022.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2022-21246 Filed 9-29-22; 8:45 am]
BILLING CODE 6560-50-P
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