Proposed Rule2023-04634
Determination of Attainment by the Attainment Date But For International Emissions for the 2015 Ozone National Ambient Air Quality Standard; El Paso-Las Cruces, Texas-New Mexico
Primary source
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Published
March 7, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA or "Agency") is proposing to determine that the El Paso-Las Cruces, Texas-New Mexico nonattainment area would have attained the 2015 ozone national ambient air quality standard (NAAQS) by the August 3, 2021 "Marginal" area attainment date, but for emissions emanating from outside the United States. If we finalize this action as proposed, the El Paso-Las Cruces, Texas-New Mexico ozone nonattainment area would no longer be subject to the Clean Air Act (CAA) requirements pertaining to reclassification upon failure to attain and therefore would remain classified as a Marginal nonattainment area for the 2015 ozone NAAQS. This action, if finalized as proposed, will discharge the EPA's statutory obligation to determine whether the El Paso-Las Cruces, Texas-New Mexico ozone nonattainment area attained the NAAQS by the attainment date.
Full Text
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<title>Federal Register, Volume 88 Issue 44 (Tuesday, March 7, 2023)</title>
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[Federal Register Volume 88, Number 44 (Tuesday, March 7, 2023)]
[Proposed Rules]
[Pages 14095-14104]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-04634]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2022-0927; FRL-10657-01-R6]
Determination of Attainment by the Attainment Date But For
International Emissions for the 2015 Ozone National Ambient Air Quality
Standard; El Paso-Las Cruces, Texas-New Mexico
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA or ``Agency'') is
proposing to determine that the El Paso-Las Cruces, Texas-New Mexico
nonattainment area would have attained the 2015 ozone national ambient
air quality standard (NAAQS) by the August 3, 2021 ``Marginal'' area
attainment date, but for emissions emanating from outside the United
States. If we finalize this action as proposed, the El Paso-Las Cruces,
Texas-New Mexico ozone nonattainment area would no longer be subject to
the Clean Air Act (CAA) requirements pertaining to reclassification
upon failure to attain and therefore would remain classified as a
Marginal nonattainment area for the 2015 ozone NAAQS. This action, if
finalized as proposed, will discharge the EPA's statutory obligation to
determine whether the El Paso-Las Cruces, Texas-New Mexico ozone
nonattainment area attained the NAAQS by the attainment date.
DATES: Written comments must be received on or before April 6, 2023.
ADDRESSES: Submit your comments, identified by Docket No. [EPA-R06-OAR-
2022-0927], at <a href="https://www.regulations.gov">https://www.regulations.gov</a> or via email to
<a href="/cdn-cgi/l/email-protection#e2849787909196cc918a8790909ba2879283cc858d94"><span class="__cf_email__" data-cfemail="452330203736316b362d2037373c052035246b222a33">[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 Sherry Fuerst, (214)665-
6252, <a href="/cdn-cgi/l/email-protection#badccfdfc8c9ce94c9d2dfc8c8c3fadfcadb94ddd5cc"><span class="__cf_email__" data-cfemail="224457475051560c514a4750505b624752430c454d54">[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>. While all documents in the
docket are listed in the index, some information may not be publicly
available due to docket file size restrictions or content (e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Sherry Fuerst, EPA Region 6 Office,
AR-SI, 214-665-6465, <a href="/cdn-cgi/l/email-protection#5a3c2f3f28292e7429323f2828231a3f2a3b743d352c"><span class="__cf_email__" data-cfemail="5b3d2e3e29282f7528333e2929221b3e2b3a753c342d">[email protected]</span></a>. We encourage the public to
submit comments via <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background
A. 2015 Ozone National Ambient Air Quality Standard and Area
Designations
Ground-level ozone pollution is formed from the reaction of
volatile organic compounds (VOC) and oxides of nitrogen
(NO<INF>X</INF>) in the presence of sunlight. These two pollutants,
referred to as ozone precursors, are emitted by many types of sources,
including on-road and non-road motor vehicles and engines, power plants
and industrial facilities, and smaller area sources such as lawn and
garden equipment and paint operations. Scientific evidence indicates
that adverse public health effects occur following exposure to ground-
level ozone pollution. Exposure to ozone can harm the respiratory
system (the upper airways and lungs), can aggravate asthma and other
lung diseases, and is linked to premature death from respiratory
causes. People most at risk from breathing air containing ozone include
people with asthma, children, older adults and people who are active
outdoors, especially outdoor workers.\1\
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\1\ EPA Fact Sheet--Ozone and Health, available at <a href="https://www.epa.gov/sites/default/files/2016-04/documents/20151001healthfs.pdf">https://www.epa.gov/sites/default/files/2016-04/documents/20151001healthfs.pdf</a> and in the docket for this action.
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Under CAA section 109, the EPA promulgates NAAQS (or ``standards'')
for pervasive air pollutants, such as ozone. The EPA has previously
promulgated NAAQS for ozone in 1979, 1997, and 2008.\2\ On October 26,
2015, the EPA revised the NAAQS for ozone to establish a new 8-hour
standard.\3\ In that action, the EPA promulgated identical revised
primary and secondary ozone standards designed to protect public health
and welfare that specified an 8-hour ozone level of 0.070 parts per
million (ppm, 70 ppb).\4\ Specifically, the standard requires that the
3-year average of the annual fourth highest daily maximum 8-hour
average ozone concentration (i.e., the design value) may not exceed
0.070 ppm.\5\ When the design value does not exceed 0.070 ppm at each
ambient air quality monitoring site within the area, the area is deemed
to be attaining the ozone NAAQS.\6\
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\2\ 44 FR 8202 (February 8, 1979), 62 FR 38856 (July 18, 1997),
and 73 FR 16436 (March 27, 2008).
\3\ 80 FR 65452
\4\ Because the 2015 primary and secondary NAAQS for ozone are
identical, for convenience, the EPA refers to them in the singular
as ``the 2015 ozone NAAQS'' or as ``the standard.''
\5\ A design value is a statistic used to compare data collected
at an ambient air quality monitoring site to the applicable NAAQS to
determine compliance with the standard. The design value for the
2015 ozone NAAQS is the 3-year average of the annual fourth highest
daily maximum 8-hour average ozone concentration. The design value
is calculated for each air quality monitor in an area and the area's
design value is the highest design value among the individual
monitoring sites in the area. Because the design value is based on
the three most recent, complete calendar years of data, attainment
must occur no later than December 31 of the year prior to the
attainment date (i.e., December 31, 2020, in the case of the El Paso
Las Cruces Texas- New Mexico Marginal nonattainment area for the
2015 ozone NAAQS). As such, the EPA's proposed determination is
based upon the complete, quality-assured, and certified ozone
monitoring data from calendar years 2018, 2019, and 2020.
\6\ The data handling convention in 40 CFR 50 Appendix U
dictates that concentrations shall be reported in ``ppm'' to the
third decimal place, with additional digits to the right being
truncated. Thus, a computed 3-year average ozone concentration of
0.071 ppm is greater than 0.070 ppm and would exceed the standard,
but a design value of 0.0709 is truncated to 0.070 and attains the
2015 ozone NAAQS.
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Section 107(d) of the CAA provides that when the EPA promulgates a
new or revised NAAQS, the Agency must designate areas of the country as
nonattainment, attainment, or unclassifiable based on whether an area
is not meeting (or is contributing to air
[[Page 14096]]
quality in a nearby area that is not meeting) the NAAQS, meeting the
NAAQS, or cannot be classified as meeting or not meeting the NAAQS,
respectively. Title I of the CAA, Part D, Subpart 2 governs the
classification, state planning, and emissions control requirements for
any area designated as nonattainment for a revised primary ozone NAAQS.
Specifically, CAA section 181(a)(1) requires the EPA to further
classify each ozone nonattainment area at the time of designation,
based on the extent of the area's exceedance of the NAAQS.
Classifications for ozone nonattainment areas range from ``Marginal''
to ``Extreme''. CAA section 182 provides the specific attainment
planning and additional requirements that apply to each ozone
nonattainment area based on its classification. CAA section 182, as
interpreted in the EPA's implementing regulations at 40 Code of Federal
Regulations (CFR) sections 51.1308 through 51.1317, also establishes
the timeframes by which air agencies must submit and implement SIP
revisions to satisfy the applicable attainment planning elements and by
which nonattainment areas must attain the 2015 ozone NAAQS.
Effective on August 3, 2018, the EPA designated 52 areas throughout
the country, including the ``Sunland Park Area,'' a portion of
Do[ntilde]a Ana County, New Mexico, nonattainment for the 2015 ozone
NAAQS.\7\ With the initial designation action, EPA classified the
Sunland Park Area as Marginal by operation of law. Effective December
30, 2021, the EPA expanded the boundary of the existing Sunland Park
nonattainment area to include El Paso County, TX creating the El Paso-
Las Cruces, Texas-New Mexico multi-state nonattainment area. The
Marginal area classification remained with the inclusion of the revised
nonattainment boundary.
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\7\ 83 FR 25776 (June 4, 2018). The EPA later designated the San
Antonio area as a 2015 ozone NAAQS nonattainment area effective
September 24, 2018. 83 FR 35136 (July 25, 2018).
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B. Clean Air Act Requirements for Marginal Ozone Nonattainment Areas
Marginal nonattainment areas must address the following
requirements in their SIP submission: the baseline emissions inventory,
source emissions statements, and nonattainment new source review
program requirements. The New Mexico Environment Department (NMED) has
provided SIP submittals to the EPA addressing these requirements for
the Sunland Park portion of the nonattainment area and the EPA has
approved the SIP submittals.\8\ On December 7, 2022, the Texas
Commission on Environmental Quality (TCEQ) submitted to EPA a SIP to
address the El Paso County portion of the marginal nonattainment area
requirements, specifically the emission inventory, emission statement
and new source review program requirements.
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\8\ 87 FR 12592, March 7, 2022.
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Transportation and general conformity apply within the El Paso-Las
Cruces, Texas-New Mexico multi-state nonattainment area under section
176(c) of the CAA and the federal regulations for transportation
conformity (40 CFR 93 subpart A) and general federal actions (40 CFR 93
subpart B). This action, if finalized, would not affect the
applicability of these regulations within the El Paso-Las Cruces,
Texas-New Mexico nonattainment area.
As described in the 2015 Ozone NAAQS Implementation Rule, CAA
section 182(a) does not require states to implement reasonably
available control measures (RACM) or reasonably available control
technology (RACT) in Marginal ozone nonattainment areas, and nothing in
section 179B alters the statutory requirements with respect to RACM/
RACT obligations in subpart 2.\9\
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\9\ 83 FR 62998, 63010 (December 6, 2018).
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C. Requirement for Determination of Attainment of the 2015 Ozone NAAQS
CAA section 181(b)(2)(A) requires that within 6 months following
the applicable attainment date, the EPA shall determine whether an
ozone nonattainment area attained the standard based on the area's
design value as of the attainment date. If the EPA determines that an
area failed to attain, CAA section 181(b)(2)(A) requires the area to be
reclassified by operation of law to the higher of: (1) the next higher
classification for the area or (2) the classification applicable to the
area's design value as of the determination of failure to attain.\10\
CAA section 181(b)(2)(B) requires the EPA to publish the determination
of failure to attain and accompanying reclassification in the Federal
Register no later than 6 months after the attainment date, which in the
case of the El Paso-Las Cruces, Texas-New Mexico nonattainment area was
February 3, 2022.
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\10\ If the EPA were to determine that the El Paso-Las Cruces,
Texas-New Mexico multi-state nonattainment area failed to attain by
the attainment date, it would be classified to the next highest
classification of Moderate. The reclassified area would then be
subject to the Moderate area requirement to attain the 2015 ozone
NAAQS as expeditiously as practicable, but not later than August 3,
2024.
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The EPA's proposed determination that the El Paso-Las Cruces,
Texas-New Mexico nonattainment area would have attained the 2015 ozone
standard but for international emissions is based in part upon data
that have been collected and quality-assured by NMED and TCEQ in
accordance with 40 CFR part 58 and recorded in EPA's Air Quality System
(AQS) database.\11\
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\11\ The EPA maintains the AQS, a database that contains ambient
air pollution data collected by the EPA, state, local, and tribal
air pollution control agencies. The AQS also contains meteorological
data, descriptive information about each monitoring station
(including its geographic location and its operator) and data
quality assurance/quality control information. The AQS data are used
to (1) assess air quality, (2) assist in attainment/non-attainment
designations, (3) evaluate SIPs for non-attainment areas, (4)
perform modeling for permit review analysis, and (5) prepare reports
for Congress as mandated by the CAA. Access is through the website
at <a href="https://www.epa.gov/aqs">https://www.epa.gov/aqs</a>.
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The El Paso-Las Cruces, Texas-New Mexico Marginal nonattainment
area's attainment date was August 3, 2021. Because the design value is
based on the three most recent, complete calendar years of data,
attainment must occur no later than December 31st of the year prior to
the attainment date. For the El Paso-Las Cruces Texas-New Mexico
Marginal nonattainment area, attainment must occur by December 31, 2020
based on complete data from 2018-2020. Ambient air quality monitoring
data must meet the data completeness requirements in Appendix U.\12\
The completeness requirements are met for the 3-year period at a
monitoring site if daily maximum 8-hour average concentrations of ozone
are available for at least 90 percent of the days within the ozone
monitoring season, on average, for the 3-year period, and no single
year has less than 75 percent data completeness. The EPA's proposed
action for the El Paso-Las Cruces, Texas-New Mexico nonattainment area
is based upon the complete, quality-assured, and certified ozone
monitoring data from calendar years 2018, 2019, and 2020. The design
value for this period is 78 ppb, indicating that the El Paso-Las
Cruces, Texas-New Mexico nonattainment area was not in attainment of
the 2015 ozone NAAQS on its August 3, 2021 attainment date.
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\12\ 40 CFR part 50, Appendix U section 4(b).
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D. International Transport and Requirements for Clean Air Act Section
179B
Anthropogenic emissions sources outside of the U.S. can affect to
varying degrees the ability of some air agencies to attain and maintain
the 2015 ozone NAAQS in areas within their jurisdiction. CAA section
179B(b) provides that where a state
[[Page 14097]]
demonstrates to the Administrator's satisfaction that an ozone
nonattainment area would have attained the NAAQS by the applicable
attainment date but for emissions emanating from outside the United
States (U.S.), that area shall not be subject to the mandatory
reclassification provisions of CAA section 181(b)(2).
CAA section 179B provides the EPA with authority to consider
impacts from international emissions in two contexts: (1) a
``prospective'' state demonstration submitted as part of an attainment
plan, which the EPA considers when determining whether the SIP
adequately demonstrates that a nonattainment area will attain the NAAQS
by its future attainment date (CAA section 179B(a)); or (2) a
``retrospective'' state demonstration, which the EPA considers after
the attainment date in determining whether a nonattainment area would
have attained the NAAQS by the attainment date (CAA section 179B(b)).
Since the attainment date for the multistate area has already passed,
both New Mexico and Texas have submitted a retrospective 179B
demonstration.
CAA section 179B(b) provides that, ``any State that establishes to
the satisfaction of the Administrator that . . . such State would have
attained the national ambient air quality standard for ozone by the
applicable attainment date, but for emissions emanating from outside of
the United States,'' \13\ shall not be subject to reclassification to a
higher classification by operation of law, as required in CAA section
181(b)(2).\14\ The EPA refers to demonstrations developed under CAA
section 179B(b) as ``retrospective'' demonstrations because they
involve analyses of past air quality (e.g., air quality data from the
years evaluated for determining whether an area attained by the
attainment date). Thus, an EPA-approved retrospective demonstration
provides relief from reclassification that would have resulted from the
EPA determining that the area failed to attain the NAAQS by the
relevant attainment date.
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\13\ CAA Section 179B(b) (emphasis added).
\14\ The EPA's longstanding view is that CAA section 179B(b)
contains an erroneous reference to section 181(a)(2), for ozone
nonattainment areas. See ``State Implementation Plans; General
Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990,'' 57 FR 13498, 13569, footnote 41 (April 16,
1992).
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The 2015 Ozone NAAQS Implementation Rule provided guidance on how
the EPA planned to implement section 179B. In the preamble to the rule,
the EPA confirmed that: (1) only areas classified Moderate and higher
must show that they have implemented RACM/RACT; (2) CAA section 179B
demonstrations are not geographically limited to nonattainment areas
adjoining an international border; and (3) a state demonstration
prepared under CAA section 179B can consider emissions emanating from
sources in North America (i.e., Canada or Mexico) or sources on other
continents.\15\ In the preamble to that rule, the EPA encouraged air
agencies to consult with the appropriate EPA regional office to
determine technical requirements for the CAA section 179B
demonstrations. In addition, the EPA noted its development of
supplementary technical information and guidance to assist air agencies
in preparing demonstrations that meet the requirements of CAA section
179B.
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\15\ 83 FR 62998, 63009.
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The EPA issued more detailed guidance regarding CAA section 179B on
December 18, 2020, that includes recommendations to assist state,
local, and tribal air agencies that intend to develop a CAA section
179B demonstration (``179B Guidance'').\16\ The 179B Guidance describes
and provides examples of the kinds of information and analyses that the
EPA recommends air agencies consider for inclusion in a CAA section
179B demonstration.
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\16\ Guidance on the Preparation of Clean Air Act Section 179B
Demonstrations for Nonattainment Areas Affected by International
Transport of Emissions'' issued on December 18, 2020; available at:
<a href="https://www.epa.gov/sites/default/files/2020-12/documents/final_caa_179b_guidance_december_2020_with_disclaimer_ogc.pdf">https://www.epa.gov/sites/default/files/2020-12/documents/final_caa_179b_guidance_december_2020_with_disclaimer_ogc.pdf</a>. The
EPA also issued a notice of availability in the Federal Register on
January 7, 2021 (86 FR 1107).
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In the 179B Guidance, the EPA confirmed that while approval of a
CAA section 179B demonstration provides specific forms of regulatory
relief for air agencies, the EPA's approval does not relieve air
agencies from obligations to meet the remaining applicable planning or
emission reduction requirements in the CAA. It also does not provide a
basis either for excluding air monitoring data influenced by
international transport from regulatory determinations related to
attainment and nonattainment, or for redesignating an area to
attainment. The 179B demonstration is subject to a public notice and
comment process before the EPA makes a final determination on the
adequacy of the demonstration. EPA may consider a 179B demonstration
when taking action to determine whether the area attained by the
attainment date and is subject to reclassification.
Because the wording in CAA section 179B(b) is in the past tense, it
is reasonable for the EPA to conclude that such demonstrations should
be retrospective in nature. In other words, the demonstration should
include analyses showing that the air quality data on specific days in
the time period used to assess attainment were affected by
international emissions to an extent that prevented the area from
attaining the standard by the attainment date.\17\ By definition,
states can only make such a demonstration after air quality data
collected pursuant to federal reference or equivalent monitoring
methods are certified and indicate that the area failed to attain by
the attainment date. Where the EPA approves a state's CAA section
179B(b) retrospective demonstration, the area retains its nonattainment
designation and is still subject to all applicable requirements for the
area's current classification but is not subject to the applicable
requirements for any higher classification.<SUP>18 19</SUP>
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\17\ 179B Guidance, 15-16.
\18\ ID at 3.
\19\ As noted in our 179B Guidance, an air agency with a
Marginal ozone nonattainment area that is affected by international
emissions may wish to evaluate whether implementing emission
reduction measures on domestic sources in the nonattainment area can
bring the area into attainment because, until the area attains the
NAAQS and the EPA approves an air agency submission addressing the
redesignation criteria of CAA section 107(d)(3)(E), the area will
continue to be subject to nonattainment area requirements, including
nonattainment new source review. Id. at 17.
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The EPA recognizes that the relationship between certain NAAQS
exceedances and associated international transport is clearer in some
cases than in others. The following characteristics would suggest the
need for a more detailed demonstration with additional evidence: (1)
affected monitors are not located near an international border; (2)
specific international sources and/or their contributing emissions are
not identified or are difficult to identify; (3) exceedances on
internationally influenced days are in the range of typical exceedances
attributable to local sources; and (4) exceedances occurred in
association with other processes and sources of pollutants, or on days
where meteorological conditions were conducive to local pollutant
formation (e.g., for ozone, clear skies and elevated temperatures).
Given the extensive number of technical factors and meteorological
conditions that can affect international transport of air pollution,
the EPA evaluates CAA section 179B demonstrations based on the weight
of evidence of all information and analyses provided by an air agency.
The appropriate level of supporting
[[Page 14098]]
documentation will vary on a case-by-case basis depending on the nature
and severity of international influence as well as the factors
identified above. The EPA considers and qualitatively weighs all
evidence based on its relevance to CAA section 179B and the nature of
international contributions as described in the demonstration's
conceptual model. Every demonstration should include fact-specific
analyses tailored to the nonattainment area in question. When a CAA
section 179B demonstration shows that international contributions are
larger than domestic contributions, the weight of evidence will be more
compelling than if the demonstration shows domestic contributions
exceeding international contributions. In contrast, when a CAA section
179B demonstration shows that international emissions have a lower
contribution to ozone concentrations than domestic emissions and/or
international transport is not significantly different on local
exceedance days compared to non-exceedance days, then the weight of
evidence would not support approval of a 179B demonstration.
In evaluating a CAA section 179B demonstration, the EPA also
considers what measures an air agency has implemented to control local
emissions. At a minimum, states are still subject to all requirements
applicable to the area based on its nonattainment classification. For
the EPA to approve a state's CAA section 179B retrospective
demonstration, the weight of evidence should show the area could not
attain with on-the-books measures and potential reductions associated
with the controls required to be implemented by the attainment date but
for international emissions. Because CAA section 179B does not relieve
an air agency of its planning or control obligations, the air agency
should show that it has implemented all required emissions controls at
the local level as part of its demonstration.
II. El Paso-Las Cruces, Texas-New Mexico Ozone Determination of
Attainment ``But For'' International Emissions
A. El Paso-Las Cruces, Texas-New Mexico Nonattainment Area
The El Paso-Las Cruces, Texas-New Mexico nonattainment Area for the
2015 ozone standard is a multistate area that is located in the Paso
del Norte (PdN) airshed.\20\ The nonattainment area encompasses over
1,000 square miles in southeastern New Mexico and West Texas. Its
population is estimated to be approximately 885,000 people.\21\
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\20\ Paso del Norte airshed consists of City of Sunland Park New
Mexico, the City of El Paso, Texas and Municipio de Ju[aacute]rez,
Mexico.
\21\ U.S. Census Bureau, Population Estimates, July 1, 2021,
(V2021) <a href="https://www.census.gov/quickfacts/fact/table/elpasocountytexas,sunlandparkcitynewmexico,US/PST045221">https://www.census.gov/quickfacts/fact/table/elpasocountytexas,sunlandparkcitynewmexico,US/PST045221</a> accessed
November 2, 2022.
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B. Ozone Monitoring Sites in El Paso-Las Cruces, Texas-New Mexico
Nonattainment Area
There are currently two ozone monitors in the New Mexico portion of
the nonattainment area: Santa Teresa and Desert View monitors. There
are six ozone monitors in the Texas portion of the nonattainment area:
El Paso UTEP, El Paso Chamizal, Skyline Park, Ivanhoe, Socorro Hueco,
and Ascarate Park monitors. As shown in Table 2, the maximum 2020
design value for the nonattainment area based on certified monitoring
data is 78 ppb at the Desert View Monitor. The EPA also notes that 2021
design values for the nonattainment area, based on certified monitoring
data, are 80 ppb at the Desert View, New Mexico monitoring location; 75
ppb at the Santa Teresa, New Mexico monitoring location; 75 ppb at the
El Paso-UTEP, Texas monitoring location; and 71 ppb at the El Paso
Chamizal, Texas monitoring location indicating that both the Texas and
New Mexico portions continue to fail to meet the standard.
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\22\ AQS Design Value Report.
\23\ AQS Design Value Report.
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Tables 1 and 2 of this document list the 2016-2021 annual fourth
highest daily maximum hour average (``4th max'') and design values for
the multistate area's ozone monitors. The Desert View, Santa Teresa, El
Paso-UTEP, and El Paso Chamizal monitors are all within a mile of the
border.
Table 1--2015 Ozone NAAQS: 2016-2021 Yearly 4th Max, El Paso-Las Cruces, Texas-New Mexico Nonattainment Area Ozone Monitors \22\
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4th Max (ppb)
Site name AQS site ID Distance from -----------------------------------------------------------------------------------------------
border (miles) 2016 2017 2018 2019 2020 2021
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New Mexico:
Santa Teresa................................................ 35-013-0022 0.3 69 77 76 75 72 79
Desert View................................................. 35-013-0021 0.8 70 73 81 77 77 86
Texas:
El Paso UTEP................................................ 48-141-0037 0.7 71 74 76 75 79 73
El Paso Chamizal............................................ 48-141-0044 0.1 65 72 78 73 72 69
Skyline Park................................................ 48-141-0058 9.5 66 75 77 72 71 68
Ivanhoe..................................................... 48-141-0029 5 61 63 74 70 68 64
Socorro Hueco............................................... 48-141-0057 2.4 64 62 70 67 74 71
Ascarate Park............................................... 48-141-0055 0.1 66 67 75 64 69 56
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Table 2--2015 Ozone NAAQS Design Values El Paso-Las Cruces, Texas-New Mexico Nonattainment Area Ozone Monitors \23\
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Design value (ppb)
Site name AQS site ID ------------------------------------------------------------------------------------------------
2016 2017 2018 2019 2020 2021
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New Mexico:
Santa Teresa....................... 35-013-0022 68 72 74 76 74 75
Desert View........................ 35-013-0021 72 72 74 77 78 80
Texas:
El Paso UTEP....................... 48-141-0037 70 71 73 75 76 75
[[Page 14099]]
El Paso Chamizal................... 48-141-0044 67 69 71 74 74 71
Skyline Park....................... 48-141-0058 68 70 72 74 73 70
Ivanhoe............................ 48-141-0029 62 63 66 69 70 67
Socorro Hueco...................... 48-141-0057 66 65 65 66 70 70
Ascarate Park...................... 48-141-0055 64 65 69 68 69 NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
C. Summary of the States' Submissions
On June 3, 2021, NMED submitted its ``Clean Air Act 179B
Demonstration Sunland Park Ozone Nonattainment Area''. On February 28,
2022, TCEQ submitted ``Federal Clean Air Act El Paso County 179B
Demonstration: El Paso-Las Cruces, Texas-New Mexico Nonattainment Area
Final Report''. Collectively the agencies demonstrations evaluated
whether, and the extent to which, ambient ozone levels in the El Paso-
Las Cruces, Texas-New Mexico nonattainment area would be affected by
emissions emanating from Municipio de Ju[aacute]rez, Mexico. As
recommended in our guidance, these evaluations included an analysis of
conceptual models of ozone formation in the nonattainment area and
topographic conditions that influence ozone formation; an analysis of
the ozone design value trends in the nonattainment area from 2016 to
2021; emissions inventory analysis comparing ozone precursor emissions
in Do[ntilde]a Ana County, New Mexico and El Paso County, Texas to
those in Municipio de Ju[aacute]rez, Mexico; ambient observational
analyses of back-trajectories examining days in the nonattainment area;
wind analysis evaluating wind direction on high ozone days; and
photochemical air quality modeling exercises and evaluations estimating
the contribution of cross-border, northern Mexico emissions to ozone
design values in the nonattainment area.
1. Conceptual Models
NMED and TCEQ provided conceptual models describing ozone formation
in the nonattainment area and topographical features of the binational,
tristate airshed known as the Paso del Norte (PdN) airshed which
consists of the City of Sunland Park, New Mexico; the City of El Paso,
Texas; and the Municipio de Ju[aacute]rez, Mexico. The Rio Grande flows
through the PdN generally from northwest to southeast along the Mesilla
Valley and serves as the international border between Texas and Mexico.
The PdN is a bowl shaped airshed that sits south of the Mesilla Valley
and is saddled by the Franklin Mountains to the north in Texas and the
Sierra de Ju[aacute]rez to the south in Mexico with Mount Cristo Rey
sitting between them. The Franklin Mountains rise more than 3,280 ft
above the valley floor and are approximately 14.4 miles long and 3.1
miles wide, separating the western third of El Paso from the eastern
two-thirds of the city. The Franklin Mountain Range and Sierra De
Ju[aacute]rez combined act as a funnel facilitating the southeast
directional airflow movement while Mount Cristo Rey acts as a barrier,
facilitating efficient mixing.
The climate of the PdN airshed is hot and arid with an average of
less than nine inches of precipitation per year, 306 days of sunshine
per year, and 15.4 days of daily high temperatures of 100 [deg]F and
above, which are conducive to ozone formation. Over 45 years of July
wind data obtained from the El Paso Airport indicates that the wind
direction predominates from the southeast with wind speeds of 5 meter
per second or less.\24\ Calm winds create a high potential for the
production of ozone.
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\24\ Demonstrations; Texas: 5-6; New Mexico: 5-7.
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2. Design Value
The states provided trends in the ozone design values, number of
days with maximum daily 8-hour ozone values greater than 70 ppb, and
precursor emissions for 2011-2020. The precursor emissions in both
states have declined while the design values have risen despite the
drop in precursor emissions. This is discussed in greater detail in the
Technical Support Document (TSD).
3. Emission Analysis for El Paso-Las Cruces, Texas-New Mexico
Nonattainment Area
New Mexico and Texas provided tables of 2016 ozone precursor
emissions (combined and shown in Table 3 of this document).\25\ The
Municipio de Ju[aacute]rez NO<INF>X</INF> emissions are 2.5 times
larger than El Paso County emissions and 4.5 times larger than
Do[ntilde]a Ana County emissions. Generally, the Municipio de
Ju[aacute]rez VOC emissions are 3 times larger than El Paso County
emissions, 6 times larger than Do[ntilde]a Ana County emissions, and 39
times larger than Sunland Park emissions. As a reminder, Sunland Park
is the only portion of Do[ntilde]a Ana County, New Mexico included in
the nonattainment area.
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\25\ TCEQ's Demonstration, page 14; NMED's Demonstration, page
17.
Table 3--Anthropogenic Emission Evaluation of the Nonattainment Area Prepared by New Mexico and Texas
----------------------------------------------------------------------------------------------------------------
Jurisdiction NOX (tpy) Percent VOC (tpy) Percent
----------------------------------------------------------------------------------------------------------------
Municipio de Ju[aacute]rez, Mexico.............. 39,744 64 33,363 67
Do[ntilde]a Ana County, NM...................... 8,652 12.8 5,945 8.3
Sunland Park, NM................................ 999 1.4 280 0.4
El Paso County, TX.............................. 14,640 23 11,166 22
----------------------------------------------------------------------------------------------------------------
[[Page 14100]]
4. Ambient Observational Analysis--Back Trajectories
TCEQ's and NMED's demonstrations include an analysis of back
trajectories created using the National Oceanic and Atmospheric
Administration's (NOAA) Hybrid Single Particle Lagrangian Integrated
Trajectory (HYSPLIT) model.\26\ The analyses include trajectories for
each exceedance day in 2016-2020 (Texas) and 2019-2020 (New Mexico)
when the daily maximum eight-hour average ozone level was above 70 ppb
at the El Paso UTEP, El Paso Chamizal, and Skyline Park monitors
(Texas) and the Desert View monitor (New Mexico).
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\26\ Demonstration; Texas: page 23, New Mexico: page 15 and
Appendix A.
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The TCEQ demonstration applied the HYSPLIT model using the READY
(Real-time Environmental Applications and Display sYstem) application
on the NOAA Air Resources Laboratory web server to trace the path of
air parcels prior to arriving to El Paso County monitors on ozone
exceedance days. For each ozone exceedance day at the El Paso UTEP, El
Paso Chamizal, and Skyline Park monitors from 2016 through 2020 (a
total of 93 site-days), the TCEQ generated eight 72-hour back
trajectories, one trajectory arriving at each of the eight hours
comprising the maximum daily average 8-hour ozone (MDA8) averaging
period at a given monitor. The TCEQ reviewed the HYSPLIT back
trajectories to determine whether at least 75% of the air parcels for
that exceedance day traveled through Mexico. From this evaluation, TCEQ
noted that exceedance days involved international contributions at the
El Paso UTEP monitor 85% of the days, at El Paso Chamizal monitor 85%
of the days, and at the Skyline Park monitor 61% of the days.
NMED's demonstration ran the back-trajectory HYSPLIT model for 72
hours using the North American Mesoscale Forecast System (NAMS) on the
exceedance days and the corresponding number of non-exceedance days
from 2019 through 2020. A total of eight trajectories were initiated
one for each hour of the exceeding 8 hour average with a starting
height of 100 meters above ground level. NMED then conducted a HYSPLIT
back-trajectory test to determine an adjusted design value that would
result from excluding internationally influenced exceedance dates. This
approach does not quantify the international contribution, but simply
assumes that days with clear transport linkages have sufficiently large
international contributions that they would meet a ``but for'' test.
Removing these dates from the data set affects the determination of the
4th annual maximum 8-hour average and the design value calculation for
the Desert View monitoring site. For each exceedance date from 2016 to
2020, NMED reviewed the HYSPLIT back-trajectory to determine if 75% of
the air parcels traveled through Municipio de Ju[aacute]rez
airspace.\27\ When the results indicated more than 75% of the air
parcels traveled through Municipio de Ju[aacute]rez airspace, NMED
concluded that the ozone maximum daily eight-hour average concentration
was influenced by international emissions. The dates resulting in less
than 75% of the air parcels that did not travel through Municipio de
Ju[aacute]rez would remain on the list of exceedance dates to determine
the adjusted fourth annual maximum 8-hour average and then to calculate
the adjusted design value. New Mexico's results show that 80% of the
exceedances are influenced by international emissions using this
method. In this adjustment analysis only nine of the 46 original
exceedances remained with six dates in 2018, one date in 2019, and two
dates in 2020 included in the adjusted design value calculation.
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\27\ 179B Guidance, 34.
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5. Wind Evaluation
Both NMED and TCEQ conducted wind analysis. Both states presented
summaries of wind patterns associated with a range of observed ozone
concentrations, graphically depicting ozone pollution roses which show
the frequency distribution of ozone concentration separately for each
direction from which the wind is blowing. NMED and TCEQ both presented
ozone pollution roses for non-exceedance days (MDA8 ozone less than 71
ppb) and exceedance days (MDA8 ozone greater than or equal to 71 ppb)
from April through September 2016-2020 for the monitors closest to the
Mexico border. Both NMED and TCEQ concluded that the highest hourly
ozone concentration is associated with wind directions from Mexico.
Figures of these analyses may be found in the TSD supporting this
action and located in the docket.
In addition to the ozone pollution roses by wind direction
discussed above, TCEQ also conducted a wind cluster analysis for El
Paso County using data from the El Paso UTEP, El Paso Chamizal, and
Skyline Park monitors. The cluster analysis relied on hourly resultant
wind direction and wind speed obtained from the TCEQ's Texas Air
Monitoring Information System (TAMIS) database and corresponding ozone
values at each monitor obtained from the EPA Air Data website (<a href="https://www.epa.gov/outdoor-air-quality-data">https://www.epa.gov/outdoor-air-quality-data</a>). Using this data, the analysis
classified days in April through September 2011 through 2020 based on
their similarity in terms of daily wind patterns, grouping days
together with similar afternoon wind direction (because peak ozone
typically occurs during afternoon hours). From these analyses, TCEQ
concluded that a significant portion of exceedances days at each
monitoring site occurred when wind blew from Municipio de
Ju[aacute]rez. More information about TCEQ's ozone cluster analysis,
including figures, may be found in the Technical Support Document for
this document, located in the docket. NMED did not conduct an ozone
cluster analysis.
6. Photochemical Modeling To Quantify International Contribution
As part of their demonstrations, NMED and TCEQ evaluated three
models:
(1) Southern New Mexico Ozone Study: Contracted by NMED in 2016 to
help understand the cause of high ozone values in Do[ntilde]a Ana
County, New Mexico, with a 2011 base year and 2025 analytic year.
(2) New Mexico Ozone Attainment Initiative: Contracted by NMED in
2020 to help understand the impact of the Oil and Gas Sector emission
on ozone values in New Mexico, with a 2014 base year and 2028 analytic
year.
(3) Final Revised Cross-State Air Pollution Rule Update: Contracted
by EPA in 2020 to determine impacts of transport of ozone and ozone
precursors on downwind areas across the U.S. with a 2016 base year and
2021, 2023 and 2028 analytic years.
The methods used by each study are well documented in separate
technical support documents and summarized in the TSD for this action
which is located in the docket and summarized in both submissions.\28\
The states compared the source apportionment studies generated by these
models and found that the three models show that the ozone
concentrations in the nonattainment area are significantly impacted by
[[Page 14101]]
emissions from Mexico. These models show international contribution
range from an estimated low of 4.11 ppb at the Chaparral, New Mexico
monitor by the Southern New Mexico Ozone study to an estimated high of
17.79 ppb at the Skyline Park monitor by the Revised CASPR Update
model.
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\28\ EPA, 2021. Environmental Protection Agency. Cross-State Air
Pollution Rule 2016 Update. Office of Air Quality Planning and
Standards, Research Triangle Park, NC. January 2021. <a href="https://www.epa.gov/csapr/revised-cross-state-air-pollution-rule-update">https://www.epa.gov/csapr/revised-cross-state-air-pollution-rule-update</a>.
WRAP, 2016. Southern New Mexico Ozone Study (SNMOS). Western
Regional Air Partnership. November 2016. <a href="https://www.wrapair2.org/SNMOS.aspx">https://www.wrapair2.org/SNMOS.aspx</a>. WRAP, 020. Ozone Attainment Initiative (OAI). Western
Regional Air Partnership (May 2020). <a href="https://www.wrapair2.org/nmoai.aspx">https://www.wrapair2.org/nmoai.aspx</a>.
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D. EPA Review of the States' Submissions
Based on the Agency's review of the submissions described in
section C, the EPA is proposing to find that Texas and New Mexico have
successfully demonstrated that the El Paso-Las Cruces, Texas-New Mexico
nonattainment area would have attained the 2015 ozone NAAQS but for
emissions emanating from outside of the United States, consistent with
CAA section 179B(b). This action discharges its statutory obligation
under CAA section 181(b)(2) to determine whether the El Paso-Las
Cruces, Texas-New Mexico nonattainment area attained the 2015 ozone
NAAQS. Our rationale supporting the proposed approval of the State's
179B(b) demonstration and determination is summarized below. The full
rationale is included in the TSD provided in the docket for this
rulemaking.
NMED and TCEQ each provided a conceptual model describing the
meteorology and topography of the area, an evaluation of ozone
precursor emissions, and an analysis of ozone trends at monitors in the
nonattainment area. We find that the following evidence supports the
proposition that the Municipio de Ju[aacute]rez, Mexico emissions have
a substantial influence on the El Paso-Las Cruces, Texas-New Mexico
nonattainment area ozone levels: the topography and meteorology of the
PdN area results in a single, shared multistate, binational airshed;
Municipio de Ju[aacute]rez, Mexico ozone precursor emissions are much
larger (currently approximately two and a half times greater) than El
Paso-Las Cruces, Texas-New Mexico nonattainment area emissions; and
ozone concentration trends in the nonattainment area have shown a
steady increase despite the permanent and steady decrease of ozone
precursor emissions at sources within the nonattainment boundary which
is likely attributable to conditions in Mexico.
NMED ran the HYSPLIT model to generate 8-hour back-trajectories for
each of the eight hours contributing to each 2019-2020 daily maximum 8-
hour average ozone exceedance (greater than 70 ppb) at the Desert View
monitor at 100 m altitude; TCEQ ran the HYSPLIT model to generate 8-
hour back-trajectories for each of the eight hours contributing to each
2016-2020 exceedance day at the El Paso UTEP, El Paso Chamizal and
Skyline Park monitors. As recommended in the 179B Guidance, the states
flagged days that had at least 6 of the 8 hours originating from or
traversing through Mexico as having likely influence from emissions
emanating from Mexico.\29\ New Mexico's results show that 80% of the
exceedance days at the Desert View monitor are influenced by
international emissions using this method. TCEQ noted that exceedance
days involved international contributions at the El Paso UTEP monitor
85% of the days, at El Paso Chamizal monitor on 85% of the days, and at
the Skyline Park monitor on 61% of the days. We conclude that the
analysis of the 8-hour back trajectories passing over Municipio de
Ju[aacute]rez, Mexico supports the conclusion that there is a direct
international source-receptor relationship between Municipio de
Ju[aacute]rez, Mexico and El Paso-Las Cruces, Texas-New Mexico
nonattainment area on 2019-2020 (New Mexico) and 2016-2020 (Texas)
exceedance days.
---------------------------------------------------------------------------
\29\ 179B Guidance, 34.
---------------------------------------------------------------------------
NMED and TCEQ also recalculated the 2020 design value excluding the
days over 70 ppb identified to have been influenced by transport from
Mexico, using a revised 4th high MDA8 ozone concentration for each
year. The EPA notes that this method of recalculating the design value
to exclude days which have international contributions doesn't
contemplate whether the exceedance day is also affected by domestic
emissions. In other words, a simple back-trajectory analysis merely
identifies whether air parcels passed through an area prior to reaching
a monitor but does not quantify or specify the amount of contribution.
Therefore, a simple recalculation of the design value excluding days
with influence from Mexico is not a conclusive ``but for'' analysis.
However, the EPA agrees that the state's 8-hour back trajectory
analysis in conjunction with the other lines of evidence shows that
there is consistent, direct transport from the high-emissions Municipio
de Ju[aacute]rez, Mexico on high ozone days to El Paso-Las Cruces,
Texas-New Mexico nonattainment area monitors.
NMED and TCEQ followed the approaches described in the 179B
Guidance using a photochemical modeling approach to quantify
international emissions emanating from Municipio de Ju[aacute]rez,
Mexico to the El Paso-Las Cruces, Texas-New Mexico nonattainment area
ozone. The available modeling also supports our conclusion that the El
Paso-Las Cruces, Texas-New Mexico multi-state nonattainment area would
have attained the 2015 ozone NAAQS but for emissions from Mexico. As
previously discussed, NMED and TCEQ used the model results to estimate
the impact of cross-border, northern Mexico emissions on air quality.
The results of this estimate were applied to the average of the 2016
and 2020 ozone design values at monitors in El Paso-Las Cruces, Texas-
New Mexico nonattainment area and indicate near-source Mexico emissions
contribute approximately of 4.11 ppb at the Chaparral, New Mexico
monitor as modeled in the Southern New Mexico Ozone study to an
estimated high of 17.79 ppb at the Skyline Park monitor modeled in the
Revised CASPAR Update study. The EPA notes that the analyses here
conservatively evaluate only cross-border emissions from northern
Mexico and do not evaluate effects of international emissions from
other parts of Mexico or elsewhere. Due to differences in each model
(such as base year, date of emission inventory, year model conducted,
and analytic year) the results, are not identical. Taken together, the
analyses do support conclusions drawn by NMED and TCEQ, that ozone
values in the nonattainment area are impacted by emissions from Mexico.
The EPA analyzed the results of the modeling studies and found that
they do support the states' conclusions and our determination that the
area would have attained the NAAQS but for international contributions.
As discussed in the TSD, the EPA has performed additional analysis
of its 2020 Ozone Policy Assessment (``2020 PA'') modeling \30\ to
provide broad U.S. and international source attribution for 2015 ozone
NAAQS nonattainment areas in the year 2016.\31\ The 2020 PA modeling
predicts that the international anthropogenic ozone contribution to
Do[ntilde]a Ana County, New Mexico \32\ on the top 10 model days is
20.1 ppb, the second largest international anthropogenic contribution
of any
[[Page 14102]]
nonattainment area in the country. In contrast to the modeling
contracted by NMED, which quantifies only the small portion of the
international contribution from near-source anthropogenic emissions in
northern Mexico, the EPA's modeling quantifies impacts from all
international anthropogenic emissions sources. This additional modeling
indicates that international anthropogenic emissions have a significant
impact on ozone in the El Paso-Las Cruces, Texas-New Mexico
nonattainment area, and that emissions from northern Mexico, while
having a substantial effect, are only a portion of the total
contribution from all international anthropogenic sources to the El
Paso-Las Cruces, Texas-New Mexico nonattainment area ozone design
values. The analyses presented in this proposed action all support the
conclusion that Mexican anthropogenic emissions are a major factor
contributing to ozone exceedances in the El Paso-Las Cruces, Texas-New
Mexico nonattainment area.
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\30\ U.S. EPA. (2020). Policy Assessment for the Review of the
Ozone National Ambient Air Quality Standards (No. EPA-452/R-20-001).
Research Triangle Park, NC: United States Environmental Protection
Agency. Retrieved from <a href="https://www.epa.gov/sites/production/files/2020-05/documents/o3-final_pa-05-29-20compressed.pdf">https://www.epa.gov/sites/production/files/2020-05/documents/o3-final_pa-05-29-20compressed.pdf</a>.
\31\ Memorandum dated December 10, 2021, from Barron Henderson
and Heather Simon (EPA, OAQPS), Subject: ``Designated Area Source
Attribution Results Related to the National Determination of
Attainment by the Attainment date (DAAD) Action.''
\32\ This study evaluated ozone nonattainment areas that were
designated before 2020. El Paso
---------------------------------------------------------------------------
In conclusion, NMED's and TCEQ's retrospective 179B(b)
demonstration includes multiple lines of evidence consistent with the
types of analyses recommended in our 179B Guidance.\33\ These analyses
appropriately focus on 2018, 2019, and 2020, which are the key years
for demonstrating attainment for a Marginal nonattainment area for the
2015 ozone NAAQS. We agree that each line of evidence supports the
conclusion that the 2020 ozone design values at all monitoring sites in
the El Paso-Las Cruces, Texas-New Mexico nonattainment area would be at
or below 70 ppb but for the influence of Mexican emissions. NMED's and
TCEQ's analyses focus on the influence of international contributions
from the bordering Municipio de Ju[aacute]rez, Mexico near-by northern
Mexico contributions. Ozone is both a local and regional problem.
Contributions from sources in Mexico much farther away from the El
Paso-Las Cruces, Texas-New Mexico nonattainment area than Municipio de
Ju[aacute]rez also contribute to the nonattainment area; as such, EPA
views the states each state's analysis to be a conservative approach to
analyzing ``international contributions.'' Based on the evaluation of
these analyses as a whole, the EPA finds that the El Paso-Las Cruces,
Texas-New Mexico nonattainment area would have attained the 2015 ozone
NAAQS by the August 3, 2021 attainment date but for emissions emanating
from Mexico.
---------------------------------------------------------------------------
\33\ 179B Guidance, Section 6.
---------------------------------------------------------------------------
III. Environmental Justice Considerations
Executive Order 12898 (59 FR 7629, February 16, 1994) requires that
federal agencies, to the greatest extent practicable and permitted by
law, identify and address disproportionately high and adverse human
health or environmental effects of their actions on minority and low-
income populations. Additionally, Executive Order 13985 (86 FR 7009,
January 25, 2021) directs federal government agencies to assess
whether, and to what extent, their programs and policies perpetuate
systemic barriers to opportunities and benefits for people of color and
other underserved groups, and Executive Order 14008 (86 FR 7619,
February 1, 2021) directs federal agencies to develop programs,
policies, and activities to address the disproportionate health,
environmental, economic, and climate impacts on disadvantaged
communities.
To identify environmental burdens and susceptible populations in
underserved communities in the El Paso-Las Cruces, Texas-New Mexico
nonattainment area and to better understand the context of our proposed
approval of NMED's and TCEQ's 179B(b) demonstrations on these
communities, we conducted a screening-level analysis using the EPA's
environmental justice (EJ) screening and mapping tool
(``EJSCREEN'').\34\ Our screening-level analysis indicates that
communities affected by this proposed action score above the national
average for the EJSCREEN ``Demographic Index,'' which is the average of
an area's percent minority and percent low income populations, i.e.,
the two demographic indicators explicitly named in Executive Order
12898.\35\ Communities in this area also score above the national
average for the ``linguistically isolated population,'' and
``population with less than high school education'' indicators.
Additionally, these communities score above the national average for
numerous EJ Index indicators, including the PM<INF>2.5</INF> EJ index
and the respiratory hazard EJ Index. We also looked at ozone design
values for the 2018-2020 period as an indicator of potential ozone
pollution exposure.\36\ The Desert View (NM), Santa Teresa (NM), El
Paso UTEP (TX), El Paso Chamizal (TX) and Skyline Park (TX) monitors
score above the national average design value for this period.\37\
---------------------------------------------------------------------------
\34\ EJSCREEN provides a nationally consistent dataset and
approach for combining environmental and demographic indicators.
EJSCREEN is available at <a href="https://www.epa.gov/ejscreen/what-ejscreen">https://www.epa.gov/ejscreen/what-ejscreen</a>.
The EPA used EJSCREEN to obtain environmental and demographic
indicators representing the El Paso County, Texas and Do[ntilde]a
Ana County, New Mexico, specifically targeting the areas closest to
the nonattainment monitors, which are located adjacent to the border
with Mexico and measures the highest levels of ozone in the
nonattainment area, where the overwhelming majority of the
population resides. These indicators are included in EJSCREEN
reports that are available in the rulemaking docket for this action.
\35\ EJSCREEN reports environmental indicators (e.g., air toxics
cancer risk, Pb paint exposure, and traffic proximity and volume)
and demographic indicators (e.g., people of color, low income, and
linguistically isolated populations). The score for a particular
indicator measures how the community of interest compares with the
state, the EPA region, or the national average. For example, if a
given location is at the 95th percentile nationwide, this means that
only five percent of the US population has a higher value than the
average person in the location being analyzed. EJSCREEN also reports
EJ indexes, which are combinations of a single environmental
indicator with the EJSCREEN Demographic Index. For additional
information about environmental and demographic indicators and EJ
indexes reported by EJSCREEN, see EPA, ``EJSCREEN Environmental
Justice Mapping and Screening Tool--EJSCREEN Technical
Documentation,'' Section 2 (September 2019).
\36\ The ozone metric in EJSCREEN represents the summer seasonal
average of daily maximum 8-hour concentrations (parts per billion,
ppb) and was not used in our EJ analyses because it does not
represent summertime peak ozone concentrations, which are instead
represented here by the design value (DV) metric. Ozone DVs are the
basis of the attainment determination in this proposed action, and
in this case, we consider it a more informative indicator of
pollution burden relative to the El Paso-Las Cruces, Texas-New
Mexico nonattainment area and the U.S. as a whole.
\37\ The 2020 ozone design value for the Desert View (78 ppb) is
in the 94th percentile, Santa Teresa (74 ppb) is in the 89th
percentile, El Paso UTEP (76 ppb) is in the 92nd percentile, El Paso
Chamizal (74 ppb) is in the 89th percentile, and Skyline Park (73
ppb) is in the 87th percentile among 2020 ozone design values
nationally. The percentiles were calculated using data available at
<a href="https://www.epa.gov/system/files/documents/2022-05/O3_DesignValues_2019_2021_FINAL_05_25_22.xlsx">https://www.epa.gov/system/files/documents/2022-05/O3_DesignValues_2019_2021_FINAL_05_25_22.xlsx</a>, Table 6. Site Trend,
column T (``2018-2020 Design Value (ppm)'').
---------------------------------------------------------------------------
As discussed in the EPA's EJ technical guidance, people of color
and low-income populations, such as those in the El Paso-Las Cruces,
Texas-New Mexico nonattainment area, often experience greater exposure
and disease burdens than the general population, which can increase
their susceptibility to adverse health effects from environmental
stressors.\38\ Underserved communities may have a compromised ability
to cope with or recover from such exposures due to a range of physical,
chemical, biological, social, and cultural factors.\39\ In addition to
the demographic and environmental indicators identified in our
screening level analysis, the proximity of underserved communities to
the border with Mexico and the resulting exposure to levels of ozone
that exceed the
[[Page 14103]]
NAAQS contributes to the potential EJ concerns faced by communities in
the El Paso-Las Cruces, Texas-New Mexico nonattainment area.
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\38\ EPA, ``Technical Guidance for Assessing Environmental
Justice in Regulatory Analysis,'' section 4 (June 2016).
\39\ Id. section 4.1.
---------------------------------------------------------------------------
If finalized, this proposed action to approve New Mexico's and
Texas's demonstrations that the El Paso-Las Cruces, Texas-New Mexico
nonattainment area would have attained the standard by the statutory
attainment date, but for emissions emanating from Mexico, would result
in the area retaining its Marginal classification. The area will retain
its designation as nonattainment and continue to implement
nonattainment new source review, but will not be reclassified as
``Moderate'' and the States will not be required to submit a plan
demonstrating attainment or to adopt additional control measures,
consistent with CAA section 179B(b).\40\ As a result, the EPA will not
be requiring the States to impose additional control measures for
purposes of the 2015 ozone NAAQS that could serve to reduce ozone
exposure in the area, even if they would not result in actual
attainment of the NAAQS due to the influx of ozone and its precursors
from Mexico.
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\40\ In light of the overall health and clean air objectives of
the CAA, the EPA encourages the States to continue to evaluate and,
where feasible, implement measures that would further reduce
emissions and contribute to improved air quality in the El Paso-Las
Cruces, Texas-New Mexico Nonattainment area.
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In addition, the EPA notes that there are other efforts underway to
reduce environmental burden along the U.S-Mexico border, including at
the El Paso-Las Cruces, Texas-New Mexico nonattainment area. The United
States and Mexico have long recognized the environmental challenges in
the border region and share the goal of protecting the environment and
public health in the U.S.-Mexico border region. The two nations have
been working together outside the framework of the SIP process to make
progress towards those goals.
The U.S.-Mexico Environmental Program (``Border 2025'') is a five-
year (2021-2025) binational effort designed ``to protect the
environment and public health in the U.S.-Mexico border region,
consistent with the principles of sustainable development.'' \41\
Border 2025 is the latest of a series of cooperative efforts
implemented under the 1983 La Paz Agreement. It builds on previous
binational efforts (i.e., the Border 2012 and Border 2020 Environmental
Programs), emphasizing regional, bottom-up approaches for decision
making, priority setting, and project implementation to address the
environmental and public health problems in the border region. As in
the previous two border programs, Border 2025 encourages meaningful
participation from communities and local stakeholders and establishes
guiding principles that will support the mission statement, ensure
consistency among all aspects of the Border 2025 Program, and continue
successful elements of previous binational environmental programs.
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\41\ ``Border 2025: United States--Mexico Environmental
Program,'' included in this docket and accessible at <a href="https://www.epa.gov/sites/default/files/2021-05/documents/final_us_mx_border_2025_final_may_6.pdf">https://www.epa.gov/sites/default/files/2021-05/documents/final_us_mx_border_2025_final_may_6.pdf</a>.
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Border 2025 sets out four strategic goals, including the reduction
of air pollution and the improvement of water quality, to address
environmental and public health challenges in the border region. Within
the goals are specific objectives that identify actions that will be
taken in support of the program's mission. The goals and objectives
were determined binationally between the EPA and the Ministry of
Environment and Natural Resources of Mexico (SEMARNAT) to address
ongoing environmental challenges and considered input from state and
tribal partners. The Joint Advisory Committee (JAC) is a binational
committee made up of private citizens, private sector representatives,
university officials, federal, state, and local government officials,
and non-governmental environmental and public health organizations. The
JAC is charged with the development and recommendation of air quality
improvement projects and programs to the Air Work Group established
under the 1983 U.S.-Mexico La Paz Agreement. The JAC serves as the
local community-based organization overseeing the process to achieve
cleaner air for the Paso del Norte region and air group under the
Border 2020 Program.
The air agencies did not evaluate environmental justice
considerations as part of their SIP submittals; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. EPA performed an environmental justice analysis, as is
described above. The analysis was done for the purpose of providing
additional context and information about this rulemaking to the public,
not as a basis of the action. In addition, there is no information in
the record upon which this decision is based inconsistent with the
stated goal of E.O. 12898 of achieving environmental justice for people
of color, low-income populations, and Indigenous peoples. We
acknowledge that the El Paso-Las Cruces, Texas-New Mexico nonattainment
area includes minority and low-income populations that could be
affected by this action.
The EPA believes it is important to recognize those potential
effects even when taking actions under a statutory provision like 179B
that, in this case, largely constrains the Agency from considering such
effects in its final decision. As discussed in Section I.B. of this
document, each State has met the requirements for ozone nonattainment
areas classified as Marginal. Moreover, the EPA continues to work in to
reduce disproportionate health, environmental, economic, and climate
change impacts in the El Paso-Las Cruces, Texas-New Mexico
nonattainment area, including those described in this section above.
IV. Proposed Action
For the reasons discussed in this document, we are proposing to
determine, consistent with our evaluation of the ``Clean Air Act
Section 179B Demonstration Sunland Park Ozone Nonattainment Area'' and
the ``Federal Clean Air Act El Paso County Sec. 179B Demonstration: El
Paso-Las Cruces, Texas-New Mexico Nonattainment Area Final Report'',
that the El Paso-Las Cruces, Texas-New Mexico multi-state nonattainment
area would have attained the 2015 ozone NAAQS by the Marginal area
attainment date of August 3, 2021, but for emissions emanating from
outside the United States. If finalized, the EPA's obligation under
section 181(b)(2)(A) to determine whether the area attained by its
attainment date will no longer apply and the area will not be
reclassified. The area will remain designated nonattainment and thus
New Mexico and Texas will both continue to comply with applicable
requirements for a Marginal ozone nonattainment area.
The EPA is soliciting public comments on the issues discussed in
this document. We will accept comments from the public on this proposal
until April 6, 2023 and will consider comments before taking final
action.
V. Statutory and Executive Order Reviews
Under the CAA, 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, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve state law as meeting Federal
requirements and does not impose additional requirements
[[Page 14104]]
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 Orders
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 CAA; 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 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, and Ozone.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 28, 2023.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2023-04634 Filed 3-6-23; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.