[Federal Register Volume 84, Number 75 (Thursday, April 18, 2019)]
[Proposed Rules]
[Pages 16226-16233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07582]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2018-0706; FRL-9991-79-Region 6]
Air Plan Approval; New Mexico; Infrastructure for the 2015 Ozone
National Ambient Air Quality Standards and Repeal of State Regulations
for Total Suspended Particulate
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve State Implementation Plan (SIP) infrastructure certifications
from the State of New Mexico and Albuquerque-Bernalillo County to
address Clean Air Act (CAA or Act) section 110(a)(1) and (2)
requirements for the 2015 ozone (O3) National Ambient Air
Quality Standards (NAAQS). The submittals address how the existing SIP
provides for the implementation, maintenance, and enforcement of the
2015 O3 NAAQS (infrastructure SIP or i-SIP). The i-SIP
ensures that the New Mexico SIP is adequate to meet the state's
responsibilities under the CAA for this NAAQS. The EPA is also
proposing to approve a SIP revision for the repeal of the New Mexico
Ambient Air Quality Standards (NMAAQS) for total suspended particulate
(TSP) in the New Mexico regulations incorporated into the SIP.
DATES: Written comments must be received on or before May 20, 2019.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2018-0706, at https://www.regulations.gov or via email to [email protected]. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
[[Page 16227]]
Regulations.gov. 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 Ms. Karolina Ruan Lei,
(214) 665-7346, [email protected]. For the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at the EPA
Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. 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: Ms. Karolina Ruan Lei, (214) 665-7346,
[email protected]. To inspect the hard copy materials, please
schedule an appointment with Ms. Karolina Ruan Lei or Mr. Bill Deese at
214-665-7253.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background
Section 110 of the CAA requires states to develop and submit to the
EPA a SIP to ensure that state air quality meets the NAAQS. These
ambient standards currently address six criteria pollutants: Carbon
monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur
dioxide. Each federally-approved SIP protects air quality primarily by
addressing air pollution at its point of origin through air pollution
regulations and control strategies. The EPA-approved SIP regulations
and control strategies are federally enforceable.
On October 26, 2015, the EPA revised the primary and secondary 8-
hour O3 NAAQS from 0.075 ppm to 0.070 ppm to provide
increased protection of public health and the environment (82 FR
65291). The primary standards are set to protect human health, while
secondary standards are set to protect public welfare.
Pursuant to section 110(a)(1) of the CAA, states are required to
submit an i-SIP within three years after the promulgation of a new or
revised NAAQS. Section 110(a)(2) of the CAA contains a list of specific
elements the i-SIP must include to adequately address such new or
revised NAAQS as applicable. On September 13, 2013, the EPA issued
guidance addressing the i-SIP elements for NAAQS.\1\ The State of New
Mexico and Albuquerque-Bernalillo County i-SIP certifications,
submitted on November 1, 2018, and September 24, 2018, respectively,
provide demonstrations of how the existing New Mexico SIP meets the
applicable section 110(a)(2) requirements for the 2015 O3
NAAQS. Our technical evaluation of these submittals is provided in the
Technical Support Document (TSD) for this action.\2\
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\1\ ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)''.
Memorandum from Stephen D. Page, U.S. EPA, Office of Air Quality
Planning and Standards. September 13, 2013.
\2\ The TSD for this action can be accessed through
www.regulations.gov (Docket No. EPA-R06-OAR-2018-0706).
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Additionally, on November 16, 2018, the State of New Mexico
provided updated regulations to the New Mexico SIP that pertain to the
repeal of the air quality standards for TSP in New Mexico. The TSP
NMAAQS were first adopted into the New Mexico regulations in 1969 and
have not been revised since their original promulgation. On April 30,
1971, the EPA established primary and secondary NAAQS for particulate
matter, with the indicator set as TSP (36 FR 8186). TSP was defined as
particulate matter up to a nominal size of 25 to 45 micrometers
([micro]m). The EPA, to better protect human health and the public
welfare, replaced the indicator for particulate matter from TSP to
PM10 on July 1, 1987, and established standards for fine
particulate matter (PM2.5) on July 18, 1997 (52 FR 24634 and
62 FR 38652). PM10 and PM2.5 refer to particles
with an aerodynamic diameter less than or equal to a nominal 10 and 2.5
[micro]m, respectively. The 24-hour PM2.5 standard was
revised in 2006, and the annual PM2.5 standard was revised
in 2012 (71 FR 61144, October 17, 2006 and 78 FR 3086, January 15,
2013).
Section 110(l) of the CAA requires that a revision to the SIP not
interfere with any applicable requirement concerning attainment and
reasonable further progress (as defined in section 171 of the CAA), or
any other applicable requirement of the Act. The New Mexico SIP
revision submitted on November 16, 2018, includes a demonstration that
the repeal of the NMAAQS for TSP will not interfere with the attainment
and maintenance of the NAAQS or any other CAA requirement.
II. The EPA's Evaluation of New Mexico's and Albuquerque-Bernalillo
County's i-SIP
The State's and County's submissions on November 1, 2018, and
September 24, 2018, demonstrate how the existing New Mexico SIP meets
the infrastructure requirements for the 2015 O3 NAAQS. As
mentioned in the previous section, a detailed discussion of our
evaluation can be found in the TSD for this action, accessible through
www.regulations.gov (Docket No. EPA-R06-OAR-2018-0706). Below is a
summary of the EPA's evaluation of the New Mexico i-SIP and
Albuquerque-Bernalillo County i-SIP for each applicable element of
110(a)(2)(A) through (M).
(A) Emission limits and other control measures: The CAA
section[thinsp]110(a)(2)(A) requires the SIP to include enforceable
emission limits and other control measures, means or techniques
(including economic incentives such as fees, marketable permits, and
auctions of emissions rights), as well as schedules and timetables for
compliance, as may be necessary or appropriate to meet the applicable
requirements of the Act and other related matters as needed to
implement, maintain and enforce each of the NAAQS.\3\
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\3\ The specific nonattainment area plan requirements of CAA
section 110(a)(2)(I) are subject to the timing requirements of CAA
section 172, not the timing requirement of CAA section 110(a)(1).
Thus, CAA section 110(a)(2)(A) does not require that states submit
regulations or emissions limits specifically for attaining the 2015
O3 NAAQS. Those SIP provisions are due as part of each
state's attainment plan, and will be addressed separately from the
requirements of CAA section 110(a)(2)(A). In the context of an
infrastructure SIP, the EPA is not evaluating the existing SIP
provisions for this purpose. Instead, the EPA is only evaluating
whether the state's SIP has basic structural provisions for the
implementation of the NAAQS.
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The New Mexico Environmental Improvement Act (EIA), codified in
Chapter 74, Article 1 of the New Mexico Statutes Annotated (NMSA) 1978,
created the New Mexico Environment Department (NMED) and the New Mexico
Environmental Improvement Board (EIB). The New Mexico Air Quality
Control Act (AQCA), codified in NMSA 1978, Chapter 74, Article 2,
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together with the Albuquerque and parallel Bernalillo County Joint Air
Quality Control Board Ordinances (collectively referred to as the
``AQCA and Ordinances'') authorized creation of the Joint Air Quality
Control Board (Air Board) and the Albuquerque Environmental Health
Department (EHD). The NMED has jurisdiction over all of New Mexico
except for Albuquerque-Bernalillo County. The NMED, the EIB, and the
State refer to the authorities in New Mexico outside of Bernalillo
County, and the EHD, the Air Board, and the County refer to the
authorities within Bernalillo County.
The AQCA delegates legislative authority to the EIB to adopt,
promulgate, publish, amend and repeal regulations consistent with the
AQCA to attain and maintain the NAAQS and prevent or abate air
pollution. The AQCA also designates the NMED as the State's air
pollution control agency and the AQCA and the EIA provides the NMED
with enforcement authority. Similarly, Albuquerque-Bernalillo County's
enforceable emissions limitations and other control measures are
authorized by the AQCA and Ordinances, which give legislative authority
to the Air Board to attain and maintain the NAAQS. The AQCA and
Ordinances also state that the EHD is the administrative agency for the
EIB and give the EHD authority to enforce air quality regulations. The
authority delegated by the New Mexico statutes and ordinances has been
employed to adopt and submit multiple revisions to the New Mexico SIP.
New Mexico's enforceable emission limitations and other control
measures for O3 and its precursors were promulgated by the
EIB and can be found in Title 20, Chapter 2 of the New Mexico
Administrative Code (NMAC) Parts 3, 5, 7, 8, 10, 32-34, 72-75, 79, and
99. Albuquerque-Bernalillo County's enforceable emissions limitations
and other control measures for any NAAQS, including O3 and
its precursors, can be found in Title 20, Chapter 11 NMAC Parts 1-8,
20-22, 39-41, 43, 46-47, 49, 60-61, 63-68, 90, 100, and 102-103. New
Mexico and Albuquerque-Bernalillo County regulations that have been
approved in the New Mexico SIP can be found listed in 40 CFR
52.1620(c).
Section 110(a)(2)(A) requires that all measures and other elements
in the SIP be enforceable. To satisfy element A, an air agency's
submission should identify existing EPA-approved SIP provisions or new
SIP provisions that the air agency has adopted and submitted for EPA
approval that limit emissions of pollutants relevant to the subject
NAAQS. New Mexico and Albuquerque-Bernalillo County have each provided
the relevant provisions that have been approved into the New Mexico
SIP. The EPA is therefore proposing to find that the New Mexico SIP
meets the requirements of section 110(a)(2)(A) of the CAA with respect
to the 2015 O3 NAAQS.
(B) Ambient air quality monitoring/data system: Section
110(a)(2)(B) of the CAA requires SIPs to include provisions for
establishment and operation of ambient air quality monitors, collecting
and analyzing ambient air quality data, and making these data available
to the EPA upon request.
The AQCA provides the authority necessary for the NMED and the EHD
to collect air monitoring data, quality-assure the results, and report
the data in order to fulfill the requirements of CAA section
110(a)(2)(B) (NMSA 1978, section 74-2-5.1).
New Mexico and Albuquerque-Bernalillo County each maintain and
operate air monitoring networks to measure ambient levels of
pollutants, including O3. All monitoring data is measured
using EPA-approved methods and subject to EPA quality assurance
requirements. The NMED and the EHD submit all required data to the EPA,
following EPA rules. These networks have been approved into the SIP (46
FR 4005, August 6, 1981) and they undergo recurrent annual review by
the EPA.\4\ In addition, the NMED and the EHD conduct recurrent
assessments of their monitoring networks every five years, which
include an evaluation of ambient monitoring for O3, as
required by EPA rules. The most recent of these 5-Year Monitoring
Network Assessments were conducted by the NMED and the EHD in 2015, and
the EPA reviewed and commented on these reviews. The comment letters
are in the docket for this rulemaking.\5\ The NMED and the EHD websites
provide the monitor locations and post past and current concentrations
of criteria pollutants measured in these networks of monitors.\6\
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\4\ Copies of the 2018 Annual Air Monitoring Network Plans and
the EPA's approval letters for New Mexico and Albuquerque-Bernalillo
County are included in the docket for this proposed rulemaking.
\5\ Copies of the 2015 5-Year Ambient Monitoring Network
Assessments. Most recent Annual Network Plans, and EPA's approval
letters for New Mexico and Albuquerque-Bernalillo County are
included in the docket for this proposed rulemaking.
\6\ For New Mexico air monitors and current air quality, see
http://nmaqinow.net/. For Albuquerque-Bernalillo County air monitors
and current air quality, see http://www.cabq.gov/airquality/air-quality-monitoring.
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In summary, New Mexico and Albuquerque-Bernalillo County meet the
requirements to: Establish, operate, and maintain an ambient air
monitoring network; collect and analyze the monitoring data; and make
the data available to the EPA upon request. The EPA is proposing to
find that the current New Mexico SIP meets the requirements of CAA
section 110(a)(2)(B) with respect to the 2015 O3 NAAQS.
(C) Program for enforcement of control measures: The CAA
section[thinsp]110(a)(2)(C) requires SIPs include the following three
elements: (1) A program providing for enforcement of the measures in
subsection A of this action, above; (2) a program for the regulation of
the modification and construction of stationary sources as necessary to
protect the applicable NAAQS (i.e., state-wide permitting of minor
sources); and (3) a permit program to meet the major source permitting
requirements of the CAA (for areas designated as attainment or
unclassifiable for the NAAQS in question).\7\
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\7\ As discussed in further detail in the TSD.
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(1) Enforcement of SIP Measures. As noted in (A), the AQCA provides
authority for the NMED and the EHD to enforce the requirements of the
AQCA and any regulations of the EIB, permits or final compliance
orders. Its statutes also provide the NMED and the EHD with general
enforcement powers. Among other things, the NMED and the EHD can file
lawsuits to compel compliance with statutes and regulations; commence
civil actions; issue field citations, conduct investigations of
regulated entities; collect criminal and civil penalties; develop and
enforce rules and standards related to protection of air quality; issue
compliance orders; pursue criminal prosecutions; conduct
investigations; enter into remediation agreements; and issue emergency
cease and desist orders. The AQCA also provides additional enforcement
authorities and funding mechanisms (NMSA 1978, sections 74-2-12, 74-2-
2, and 74-1-6(F)).
(2) Minor New Source Review. Section 110(a)(2)(C) also requires
that the SIP include measures to regulate construction and modification
of stationary sources to protect the NAAQS. Both the New Mexico (78 FR
15296, March 11, 2013) and Albuquerque-Bernalillo County (69 FR 78312,
December 30, 2004) minor NSR permitting requirements are approved as
part of the SIP.\8\
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\8\ The EPA is not proposing to approve or disapprove the
existing New Mexico or Albuquerque-Bernalillo County minor NSR
programs to the extent that it may be inconsistent with the EPA's
regulations governing this program. The EPA has maintained that the
CAA does not require that new infrastructure SIP submissions correct
any defects in existing EPA-approved provisions of minor NSR
programs in order for the EPA to approve the infrastructure SIP for
element C (76 FR 41075 [41076-41079], July 13, 2011). The EPA
believes that a number of states may have minor NSR provisions that
are contrary to the existing EPA regulations for this program. The
statutory requirements of section 110(a)(2)(C) provide for
considerable flexibility in designing minor NSR programs.
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[[Page 16229]]
(3) Prevention of Significant Deterioration (PSD) permit program.
The Albuquerque-Bernalillo County and New Mexico PSD program portions
of the SIP cover all NSR regulated pollutants as well as the
requirements for the 2015 O3 NAAQS and have been approved by
the EPA (80 FR 52401, August 31, 2015, and 78 FR 15296, March 11,
2013).\9\
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\9\ As discussed in further detail in the TSD.
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(D) Interstate transport, and interstate and international
pollution abatement: Under CAA section 110(a)(2)(D)(i), there are four
requirements the SIP must include relating to interstate transport. The
first two of the four requirements are outlined in CAA section
110(a)(2)(D)(i)(I) and require that the SIP contain adequate provisions
prohibiting emissions to other states which will (1) contribute
significantly to nonattainment of the NAAQS, and (2) interfere with
maintenance of the NAAQS. The third and fourth requirements are
outlined in CAA section 110(a)(2)(D)(i)(II) and require that the SIP
contain adequate provisions prohibiting emissions to other states which
will (1) interfere with measures required to prevent significant
deterioration or (2) interfere with measures to protect visibility.
The State of New Mexico and Albuquerque-Bernalillo County
submittals did not include how the current New Mexico SIP meets CAA
section 110(a)(2)(D)(i)(I) requirements. The NMED and the EHD stated
that they are currently working with the EPA to address this
requirement as it relates to the 2015 O3 NAAQS as a
sufficient basis for a submittal addressing these requirements does not
yet exist. The NMED and the EHD indicate that they will continue to
work with the EPA to develop an appropriate submittal for this element.
As the submittals from the State of New Mexico and Albuquerque-
Bernalillo County did not include how the New Mexico SIP meets CAA
section 110(a)(2)(D)(i)(I) requirements, we will only discuss how the
submittals address CAA sections 110(a)(2)(D)(i)(II) and
110(a)(2)(D)(ii).
The SIP submission stated that as noted in subsection C of this
action, shown above, Albuquerque-Bernalillo County and New Mexico each
have comprehensive EPA-approved PSD programs meeting the prevention of
significant deterioration of air quality requirement of CAA section
110(a)(2)(D)(i)(II) (80 FR 52402, August 31, 2015, and 80 FR 40915,
July 14, 2015, respectively). With respect to the visibility element of
CAA section 110(a)(2)(D)(i)(II), both Albuquerque-Bernalillo County and
New Mexico have a regional haze program in place that fully meets the
requirements of 40 CFR 51.309 that have been approved by the EPA into
the New Mexico SIP. The Albuquerque-Bernalillo County regional haze SIP
was approved by EPA on November 29, 2012 (77 FR 71119). The New Mexico
regional haze SIP was approved in two actions; the first action,
promulgated on November 27, 2012, approved the majority of the regional
haze SIP (77 FR 70693), and the second action, promulgated on October
9, 2014, addressed best available retrofit technologies (79 FR 60985).
As we have approved both New Mexico and Albuquerque-Bernalillo County
comprehensive PSD programs and regional haze plans, we propose to
approve the current SIP meets CAA section 110(a)(2)(D)(i)(II)
requirements.
CAA section 110(a)(2)(D)(ii) requires that the SIP contain adequate
provisions ensuring compliance with the applicable requirements of
sections 126 (relating to interstate pollution abatement) and 115
(relating to international pollution abatement). As stated in their
submittals, New Mexico and Albuquerque-Bernalillo County meet the
section 126 requirements as (1) they have fully approved PSD SIPs
(Albuquerque-Bernalillo County, 80 FR 52401, August 31, 2015 and New
Mexico, 78 FR 15296, March 11, 2013), which include notification to
neighboring air agencies of potential impacts from each new or modified
major source, and (2) no source or sources have been identified by the
EPA as having any interstate impacts under CAA section 126 in any
pending action related to any air pollutant. New Mexico and
Albuquerque-Bernalillo County meet CAA section 115 requirements as
there are no findings by the EPA that New Mexico or Albuquerque-
Bernalillo County air emissions affect other countries. Therefore, we
propose to approve that the current SIP meets requirements for CAA
section 110(a)(2)(D)(ii).
(E) Adequate authority, resources, implementation, and oversight:
CAA section 110(a)(2)(E) requires that the SIP provide for the
following: (1) Necessary assurances that the state (and other entities
within the state responsible for implementing the SIP) will have
adequate personnel, funding, and authority under state or local law to
implement the SIP, and that there are no legal impediments to such
implementation; (2) compliance with requirements relating to state
boards as required under section 128 of the CAA; and (3) necessary
assurances that the state has responsibility for ensuring adequate
implementation of any plan provision for which it relies on local
governments or other entities to carry out that portion of the plan.
Both subsections A and E of this action address the requirement that
there is adequate authority and no legal impediments to implement and
enforce the SIP.
The i-SIP submissions for the 2015 O3 NAAQS describe the
SIP regulations governing the various functions of personnel within the
NMED, the EIB, the EHD, and the Air Board, including the
administrative, technical support, planning, enforcement, and
permitting functions of the program. (NMSA 1978, sections 9-7A-6(B)(4),
9-7A-11(A), 74-2-5.1(F) and 74-2-5.2).
With respect to funding, the AQCA requires the NMED to establish an
emissions fee schedule for sources in order to fund the reasonable
costs of administering various air pollution control programs and
authorizes the NMED to collect additional fees necessary to cover
reasonable costs associated with processing of air permit applications
(NMSA 1978, sections 9-7A-6(B)(4), 9-7A-11(A), 74-2-5.1(F) and 74-2-
5.2). The EPA conducts periodic program reviews to ensure that the
state has adequate resources and funding to, among other things,
implement and enforce the SIP. With respect to funding for the EHD and
the Air Board, the resources to carry out the plan are provided through
general funds, permit fees and the CAA grant process. Permit fees are
collected under the authority of NMSA 1978, section 74-2-7.
The State and County addressed element E requirements pertaining to
CAA section 128 requirements for state boards. The EIA, NMSA 1978,
section 74-1-4, provides that the EIB contain at least a majority of
members who represent the public interest and do not derive any
``significant portion'' of their income from persons subject to, or who
appear before the board, on issues related to the CAA or the AQCA.
Likewise, Albuquerque-Bernalillo County require that the Air Board
follows the same requirements under the AQCA, NMSA 1978, section 74-2-
4(B). The members of the board or body, or the head of an agency with
similar
[[Page 16230]]
powers, are required to adequately disclose any potential conflicts of
interest.
Regarding assurances concerning reliance on local government
agencies, the State indicates that the City of Albuquerque-Bernalillo
County is authorized to carry out all portions of New Mexico's SIP
within the jurisdictional boundaries of Bernalillo County. The
Albuquerque-Bernalillo County SIP provisions are part of the New Mexico
SIP.\10\ However, the NMED and the EIB retain oversight authority in
the event the local authority fails to act (AQCA, NMSA 1978, section
74-2-4).
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\10\ See approved Albuquerque-Bernalillo County statutes in the
New Mexico SIP at 40 CFR 52.1620(e).
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Based upon review of the SIP submissions for the 2015 O3
NAAQS and relevant statutory and regulatory authorities and provisions
referenced in the submission or referenced in the New Mexico SIP, the
EPA believes that the requirements of CAA section 110(a)(2)(E) are met.
(F) Stationary source monitoring system: CAA
section[thinsp]110(a)(2)(F) requires that the SIP provide for the
establishment of a system to monitor emissions from stationary sources
and to submit periodic emission reports. Element F requires the
installation, maintenance, and replacement of equipment, and the
implementation of other necessary steps, by owners or operators of
stationary sources, to monitor emissions from such sources. The SIP
shall also require periodic reports on the nature and amounts of
emissions and emissions-related data from such sources and require that
the state correlate the source reports with emission limitations or
standards established under the CAA. These reports must be made
available for public inspection at reasonable times.
The AQCA authorizes the EIB and the Air Board to require persons
engaged in operations which result in air pollution to monitor or test
emissions and to file reports containing information relating to the
nature and amount of emissions (NMSA 1978, section 74-2-5(C)(6)). There
are also SIP-approved state regulations pertaining to sampling and
testing and requirements for reporting of emissions inventories (20.2
NMAC Parts 5,7-8, 10-20, 30-34, 40-41, and 72-74). For the County, SIP
rules establish general requirements for maintaining records and
reporting emissions (20.11.47 NMAC).
The NMED uses the data received to track progress towards
maintaining the NAAQS, develop control and maintenance strategies,
identify sources and general emission levels, and determine compliance
with SIP regulations and additional EPA requirements. The SIP requires
this information be made available to the public. The County also has
provisions concerning the handling of confidential data and proprietary
business information; these provisions exclude from confidential
treatment any records concerning the nature and amount of emissions
reported by sources (20.11.90 NMAC).
From reviewing the State and County submittals and the relevant
regulations and statutes, we are proposing that the New Mexico SIP
meets the requirements of CAA section[thinsp]110(a)(2)(F).
(G) Emergency authority: CAA section[thinsp]110(a)(2)(G) requires a
demonstration that the state has the authority to restrain any source
from causing imminent and substantial endangerment to public health or
welfare or the environment. The SIP must include an adequate
contingency plan to implement such authorities as necessary.
The AQCA provides the NMED and the EHD with authority to address
environmental emergencies, inclusive of contingency plans to implement
emergency episode provisions.
Upon a finding that an owner or operator is unreasonably affecting
the public health, safety or welfare, or the environment, the AQCA
authorizes the NMED and the EHD to, after a reasonable attempt to give
notice, declare a state of emergency and issue without hearing an
emergency special order directing the owner or operator to cease such
pollution immediately (NMSA 1978, section 74-2-10).
New Mexico promulgated the Air Pollution Episode Contingency Plan
for New Mexico, which includes contingency measures, and these
provisions were approved into the SIP on August 21, 1990 (55 FR 34013).
Similarly, the Air Board adopted into the SIP the Air Pollution Episode
Contingency Plan for Albuquerque-Bernalillo County, which covers air
pollution episodes and the occurrence of an emergency due to the
effects of the pollutants on the health of persons (56 FR 38073, August
12, 1991).
Based upon review of the infrastructure SIP submissions, the EPA
believes that the requirements of CAA section 110(a)(2)(G) are met.
(H) Future SIP revisions: CAA section[thinsp]110(a)(2)(H) requires
that states must have the authority to revise their SIPs in response to
changes in the NAAQS, availability of improved methods for attaining
the NAAQS, or in response to an EPA finding that the SIP is
substantially inadequate to attain the NAAQS.
The State of New Mexico and Albuquerque-Bernalillo County each
responded that the New Mexico SIP is a compilation of regulations,
plans, and submittals that act to improve and maintain air quality in
accordance with national standards. The authority to develop or revise
the SIP is based on the authority to adopt new regulations, revise
existing regulations, and conduct business in a manner to meet the
NAAQS. NMSA 1978, section 74-7-5 gives the board authority to perform
these functions. The AQCA authorizes and requires the State and County
to revise its SIP, as necessary, to account for: Revisions of the
NAAQS, newly promulgated NAAQS, attaining and maintaining the NAAQS,
abating air pollution, adopting more effective methods of attaining the
NAAQS, and responding to EPA SIP calls concerning NAAQS adoption or
implementation (NMSA 1978, sections 74-2-5(B)(1) and 74-2-5.2(B)).
Nothing in New Mexico's statutory or regulatory authority prohibits the
State or Albuquerque-Bernalillo County from revising the SIP in the
event of a new or revised NAAQS. Based upon review of the
infrastructure SIP submissions, the EPA believes that the requirements
of CAA section 110(a)(2)(H) are met.
(I) Nonattainment areas: The CAA section 110(a)(2)(I) requires that
in the case of a plan or plan revision for areas designated as
nonattainment areas, states must meet applicable requirements of part D
of the CAA, relating to SIP requirements for designated nonattainment
areas.
The EPA does not expect infrastructure SIP submissions to address
element I. The specific SIP submissions for designated nonattainment
areas, as required under CAA title I, part D, are subject to different
submission schedules than those for CAA section 110 infrastructure
elements. Instead, the EPA will take action on part D attainment plan
SIP submissions through a separate rulemaking process governed by the
requirements for nonattainment areas, as described in part D.
(J) Consultation with government officials, public notification,
PSD and visibility protection: The SIP must meet the following three
CAA requirements: (1) Section 121, relating to interagency consultation
regarding certain CAA requirements; (2) section 127, relating to public
notification of NAAQS exceedances and related issues; and (3)
prevention of significant deterioration of air quality and (4)
visibility protection.
[[Page 16231]]
(1) Interagency consultation. As required by the AQCA, there must
be a public hearing before the adoption of any regulations or emission
control requirements and all interested persons must be given a
reasonable opportunity to submit data, view documents, or argue orally
or in writing and to examine testimony of witnesses from the hearing
(NMSA 1978, sections 74-2-6(B), (C), and (D)). In addition, the AQCA
provides for the power and duty to ``advise, consult, contract with and
cooperate with local authorities, other states, the federal government
and other interested persons or groups in regard to matters of common
interest in the field of air quality control.'' (NMSA 1978, section 74-
2-5.2(B)). Furthermore, New Mexico's PSD SIP rules mandate public
participation and notification regarding permitting applications to any
other state or local air pollution control agencies, local government
officials of the city or county where the source will be located,
tribal authorities, and Federal Land Managers whose lands may be
affected by emissions from the source or modification. The State's
Transportation Conformity SIP rules also provide procedures for
interagency consultation, resolution of conflicts, and public
notification. These rules apply to both New Mexico and Albuquerque-
Bernalillo County.
(2) Public notification. The submitted revisions provide the SIP
regulatory citations requiring both the NMED and the EHD to regularly
notify the public of instances or areas in which any NAAQS are
exceeded, advise the public of the health hazards associated with such
exceedances, and enhance public awareness of measures that can prevent
such exceedances and ways in which the public can participate in
efforts to improve air quality. Additional public notification
concerning compliance with the NAAQS is accomplished by real-time
publishing of air quality data from NMED's monitoring network to the
NMED website, and from Albuquerque-Bernalillo County's monitoring
network available via the EPA's Air Quality System Data Mart website.
(3) PSD. The PSD requirements here are the same as those addressed
under subsection C of this action.
(4) Visibility protection. The New Mexico SIP requirements for both
the state and Albuquerque-Bernalillo County relating to visibility and
regional haze are not affected when the EPA establishes or revises a
NAAQS. Therefore, the EPA has determined that there are no new
visibility protection requirements due to the revision of the NAAQS,
and consequently there are no newly applicable visibility protection
obligations pursuant to infrastructure element J after the promulgation
of a new or revised NAAQS.
Based upon the review of the infrastructure SIP submissions for the
2015 O3 NAAQS, and relevant statutory and regulatory
authorities and provisions referenced in the submission or referenced
in New Mexico's SIP, the EPA believes that the requirements of CAA
section 110(a)(2)(J) are met.
(K) Air quality and modeling/data: Element K requires that the SIP
provide for performing air quality modeling to predict the effects on
ambient air quality from emissions of any NAAQS pollutant, and for
submission of such data to the EPA upon request.
The NMED and the EHD have the duty, authority, and technical
capability to conduct air quality modeling, pursuant to the AQCA, in
order to assess the effect on ambient air quality of relevant pollutant
emissions; and can provide relevant data as part of the permitting and
NAAQS implementation process (NMSA, 1978 section 74-2-5.2(B)). The NMED
and the EHD follow EPA guidelines for air dispersion modeling. Upon
request, the NMED and the EHD will submit current and future data
relating to air quality modeling to the EPA.
The NMED and the EHD have the power and duty under the AQCA to
investigate and develop facts, which provide for the functions of
environmental air quality assessment (NMSA 1978, section 74-2-5.1(A)).
Past modeling and emissions reductions measures have been submitted by
the State and County and approved into the SIP. The AQCA also
authorizes and requires the NMED to cooperate with the federal
government and local authorities concerning matters of common interest
in the field of air quality control, thereby allowing the agency to
make such submissions to the EPA.
Based upon review of the infrastructure SIP submissions for the
2015 O3 NAAQS, the EPA finds that New Mexico and
Albuquerque-Bernalillo County, have adequate infrastructure needed to
address CAA section 110(a)(2)(K).
(L) Permitting fees: The SIP must require each major stationary
source to pay permitting fees to the permitting authority, as a
condition of any permit required under CAA section 504, to cover the
cost of reviewing and acting upon any application for such a permit,
and, if the permit is issued, the costs of implementing and enforcing
the terms of the permit. The fee requirement applies until a fee
program established by the state pursuant to Title V of the CAA,
relating to operating permits, is approved by the EPA.
For New Mexico, the AQCA authorizes the EIB to establish an
emission fee schedule and a construction permit fee schedule to recover
the reasonable costs of evaluating permit applications, and issuing and
enforcing permits (NMSA 1978, section 74-2-7). Relevant New Mexico
regulations that have been approved into the SIP include 20.2 NMAC
Parts 75 and 71 (as it relates to Part 75), which cover construction
and operating permit fees (77 FR 18923, March 29, 2012). For
Albuquerque-Bernalillo County, the relevant regulations covering permit
fees that have been approved by the EPA include 20.11 NMAC Parts 2 and
41 (77 FR 30900, May 24, 2012, and 82 FR 29421, June 29, 2017). In
addition, see subsection E of this action, above, for the description
of the mandatory collection of permitting fees outlined in the SIP for
the entire state of New Mexico.
Based upon review of the infrastructure SIP submissions for the
2015 O3 NAAQS, the EPA proposes that the requirements of CAA
section 110(a)(2)(L) are met.
(M) Consultation/participation by affected local entities: CAA
section[thinsp]110(a)(2)(M) requires that the SIP must provide for
consultation and participation by local political subdivisions affected
by the SIP.
See subsection J (1) and (2) of this action for a discussion of the
SIP's public participation process, the authority to advise and
consult, and the PSD SIP's public participation requirements. For New
Mexico, the AQCA requires initiation of cooperative action between
local authorities and the NMED, between one local authority and
another, or among any combination of local authorities and the NMED for
control of air pollution in areas having related air pollution problems
that overlap the boundaries of political subdivisions (NMSA 1978,
section 74-2-5.2(B)). For, Albuquerque-Bernalillo County, the AQCA and
implementing regulations provide for consultation with local political
subdivisions affected by the Albuquerque-Bernalillo County elements of
the New Mexico SIP.
The EPA is proposing to find that the Albuquerque-Bernalillo County
and New Mexico submittals meet the requirements of CAA section
110(a)(2)(M) for the 2015 O3 NAAQS.
[[Page 16232]]
III. The EPA's Evaluation of New Mexico's Total Suspended Particulate
Standard Repeal
On November 16, 2018, New Mexico submitted a SIP revision that
contains modifications to the NMAC for inclusion into the SIP. The
modifications consist of a repeal of the NMAAQS for TSP contained in
section 109 of 20.2.3 NMAC, Ambient Air Quality Standards. New Mexico
demonstrates how the SIP revision will not negatively impact the
attainment status of the state's particulate matter attainment areas or
any other CAA requirement.\11\
---------------------------------------------------------------------------
\11\ See the State of New Mexico's November 16, 2018, submittal,
Exhibit 6: Demonstration of Noninterference Under Federal Clean Air
Act, Section 110(l), available in the docket for this action.
---------------------------------------------------------------------------
The submittal indicates that the ambient air quality standards for
TSP are no longer consistent with modern air quality regulations. The
NMED's Air Quality Bureau has conducted a thorough analysis of the
particulate standards in 20.2.3.109 NMAC and has concluded that the
standards: (1) Can be repealed without a relaxation of emissions
controls or an adverse effect on air quality, (2) are not necessary to
maintain the NAAQS for particulate matter in New Mexico, and (3) will
not impact the attainment status of the New Mexico's particulate matter
attainment areas or any other CAA requirement. In the submittal, the
NMED concluded that sufficient rules and procedures other than section
109 from 20.2.3 NMAC are in place to ensure compliance with the
particulate matter NAAQS.
The TSP NAAQS were replaced in 1987 by PM10 standards,
and PM10 and PM2.5 are the current indicators for
particulate matter. New Mexico has a fully approved SIP that meets CAA
infrastructure requirements for the 2006 and 2012 PM2.5
NAAQS that address health and welfare concerns for particulate matter
(78 FR 4337, January 22, 2013 and 83 FR 12493, March 22, 2018). In the
submittal, New Mexico also lists regulations that are still in place to
address nuisance particulate matter. The NMED rules that limit and
control emissions of particulate matter include enforceable emission
limits, control measures, permits, fees, and compliance schedules and
are found at 20.2 NMAC Parts 5, 7, 8, 10, 13-19, 22, 60-61, 65-66, 72-
75, 79, and 99.
The repeal of the TSP NMAAQS will not affect ongoing efforts to
reduce PM10 levels in the Anthony, New Mexico
PM10 nonattainment area (Do[ntilde]a Ana County). As stated
in the State's submittal, the NMED determined that all point and area
sources of PM10, in or affecting the area, to be de minimis,
except for unpaved roads, unvegetated and sparsely vegetated areas, and
range lands. The paving of roads was determined to be economically
infeasible, the enhancement of ground cover in the region to be
technologically infeasible, and emissions from range lands to be
nonanthropogenic. The NMED is developing a dust mitigation plan for
both Do[ntilde]a Ana County and Luna County, and is also developing a
fugitive dust rule that will be applicable in areas of the State
requiring a mitigation plan in accordance with 40 CFR 51.930.
After evaluating the State's submittal, the EPA agrees with the
State's conclusion that the removal of the TSP NMAAQS from the New
Mexico SIP will not interfere with any applicable requirement
concerning attainment and reasonable further progress, or any other
applicable requirement of the CAA.
IV. Proposed Action
The EPA is proposing to approve the November 1, 2018, and September
24, 2018, submittals for New Mexico and Albuquerque-Bernalillo County
pursuant to the requirements of CAA sections 110(a)(1) and (2) as
applicable to the 2015 O3 NAAQS. Table 1 below outlines the
specific actions the EPA is proposing to approve. The EPA is also
proposing to approve revisions to the New Mexico SIP pertaining to the
repeal of the TSP ambient air quality standard for the State of New
Mexico.
Table 1--Proposed Action on New Mexico Infrastructure SIP Submittal for
Various NAAQS
------------------------------------------------------------------------
2015 O3
Element
------------------------------------------------------------------------
(A): Emission limits and other control measures............... A
(B): Ambient air quality monitoring and data system........... A
(C)(i): Enforcement of SIP measures........................... A
(C)(ii): PSD program for major sources and major modifications A
(C)(iii): Permitting program for minor sources and minor A
modifications................................................
(D)(i)(I): Prohibit emissions to other states which will (1) NS
significantly contribute to nonattainment of the NAAQS, (2)
interfere with maintenance of the NAAQS......................
(D)(i)(II): Prohibit emissions to other states which will (3) A
interfere with PSD requirements or (4) interfere with
visibility protection........................................
(D)(ii): Interstate and international pollution abatement..... A
(E)(i): Adequate resources.................................... A
(E)(ii): State boards......................................... A
(E)(iii): Necessary assurances with respect to local agencies. A
(F): Stationary source monitoring system...................... A
(G): Emergency power.......................................... A
(H): Future SIP revisions..................................... A
(I): Nonattainment area plan or plan revisions under part D... +
(J)(i): Consultation with government officials................ A
(J)(ii): Public notification.................................. A
(J)(iii): PSD................................................. A
(J)(iv): Visibility protection................................ +
(K): Air quality modeling and data............................ A
(L): Permitting fees.......................................... A
(M): Consultation and participation by affected local entities A
------------------------------------------------------------------------
Key to Table:
A--Approve;
+--Not germane to infrastructure SIPs
NS--No submittal. EPA may take future action in a separate rulemaking
action.
[[Page 16233]]
Based upon our review of these infrastructure SIP submissions and
relevant statutory and regulatory authorities and provisions referenced
in these submissions or referenced in the Albuquerque-Bernalillo
County, New Mexico or New Mexico SIP, the EPA finds that New Mexico and
Albuquerque-Bernalillo County have the infrastructure in place to
address required elements of CAA sections 110(a)(1) and (2) to ensure
that the 2015 O3 NAAQS are implemented throughout the State
of New Mexico, including Albuquerque-Bernalillo County.
We are also proposing to approve the submitted revisions to the New
Mexico SIP that provide modifications to the NMAC and update the
federally approved New Mexico SIP accordingly. The approved SIP
revision will repeal the TSP NMAAQS from section 109 of 20.2.3 NMAC, as
the EPA found that such a revision will not adversely affect the
attainment of applicable CAA requirements.
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 beyond those
imposed by state law. For that reason, this action:
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);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
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.);
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);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
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
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, Incorporation by
reference, Intergovernmental relations, Ozone, Particulate matter,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 10, 2019.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2019-07582 Filed 4-17-19; 8:45 am]
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