[Federal Register Volume 85, Number 86 (Monday, May 4, 2020)]
[Rules and Regulations]
[Pages 26361-26364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08518]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2018-0705; FRL-10007-85-Region 6]


Air Plan Approval; New Mexico; Interstate Transport Requirements 
for the 2008 Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Clean Air Act, (CAA or Act), the Environmental 
Protection Agency (EPA) is approving State Implementations Plan (SIP) 
revisions submitted by the State of New Mexico and the City of 
Albuquerque-Bernalillo County that address interstate transport for the 
2008 ozone National Ambient Air Quality Standards (NAAQS). The EPA is 
approving the submissions as meeting the requirement that the New 
Mexico SIP contain adequate provisions to prohibit emissions which will 
significantly contribute to nonattainment or interfere with maintenance 
of the 2008 ozone NAAQS in other states.

DATES: This rule is effective on June 3, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2018-0705. All documents in the docket are 
listed on the https://www.regulations.gov website. 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, 
Infrastructure and Ozone Section, 214-665-6454, [email protected]. 
Out of an abundance of caution for members of the public and our staff, 
the EPA Region 6 office will be closed to the public to

[[Page 26362]]

reduce the risk of transmitting COVID-19.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. Background

    The background for this action is discussed in detail in EPA's 
December 3, 2019 proposal (84 FR 66098). In that document, we proposed 
approval of SIP revisions that address the interstate transport of air 
pollution requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 
ozone NAAQS. The SIP revisions were submitted by the state of New 
Mexico and the City of Albuquerque-Bernalillo County on October 10, 
2018 and October 4, 2018, respectively. In today's action, we are 
approving the transport SIP for the 2008 ozone NAAQS.

II. Response to Comments

    We received one comment on the proposed rulemaking. The full text 
of the comment is available for review in the docket for this 
rulemaking. The comment was submitted by the Sierra Club (on behalf of 
itself and the Center for Biological Diversity). To best address the 
comment, we have broken the comment down into two parts (Comment 1 and 
Comment 2). We have responded to both parts of the comment below and 
provided a more detailed response in the Response to Comment Technical 
Support Document included in our docket.
    Comment #1: The commenters assert that oil and gas emissions in New 
Mexico are not fairly represented in EPA modeling and therefore both 
air quality at downwind receptors and the impact of New Mexico's 
contribution to projected nonattainment and maintenance areas in other 
states are underestimated. The commenter points to increased production 
particularly in the Permian Basin as evidence that EPA's emissions 
estimates are too low.
    Response #1: EPA disagrees with the claims made by the commenters 
that the oil and gas exploration and production sector (Oil and Gas 
E&P) emissions in New Mexico are not adequately represented in EPA 
modeling. EPA and states go to great lengths to ensure that emission 
inventories and emission projections are of the highest quality. The 
efforts to provide for quality assurance, quality control and public 
input for the emission inventories that were utilized in the modeling 
for these SIP revisions are described in detail in the Response to 
Comments Technical Support Document for this action. Our review of the 
total 2017 projected Oil and Gas E&P emissions utilized in the 2017 
Future Year modeling, more recent Oil and Gas E&P emissions 
projections, and the 2014 National Emission Inventory (NEI) of Oil and 
Gas E&P emissions in New Mexico indicate that the 2017 projected 
emissions used in the 2017 Future Year modeling were overstated rather 
than understated as characterized by the reviewer. This overestimation 
of the projected emissions inventory could have also resulted in an 
overestimation by the air quality model of the downwind impact of 
emissions from New Mexico's Oil and Gas E&P to other states in the 2017 
Future Year modeling. Thus, contrary to the commenters' concern, EPA's 
estimate of New Mexico's 2017 modeled impacts on other states is likely 
conservative and supports EPA's conclusion that impacts from emissions 
originating in New Mexico on other states are below 0.75 parts per 
billion (ppb) in 2019-2020.
    EPA agrees that there has been increase in Oil and Gas E&P activity 
in New Mexico since 2011. Emissions associated with the sector, 
however, do not have a linear relationship with exploration and 
production related activities. As Oil and Gas E&P have grown in New 
Mexico, there have been, and continue to be, simultaneous improvements 
in emission reduction technology and new regulatory control 
requirements. These two competing factors were considered in emissions 
projection used in EPA's 2017 and 2023 modeling pertaining to 
interstate transport. Selected source categories reflect reductions in 
volatile organic compounds (VOCs) and nitrogen oxides (NOX) 
that occur at reciprocating internal combustion engines (RICE) due to 
controls from both the National Emission Standards for Hazardous Air 
Pollutants (NESHAP) and New Source Performance Standards (NSPS). The 
upgrades in emissions technology necessary to comply with these rules 
generally bring co-benefits of reductions in VOCs and NOX 
emissions. The areas in New Mexico which experienced a growth in the 
Oil and Gas E&P such as the Permian Basin tend to use newer equipment 
that meets the lower RICE NESHAP and RICE NSPS requirements. Other 
NOX emitters in Oil and Gas E&P are also subject to 
regulations and emission control technologies which are being installed 
over time. See Response to Comment Technical Support Document for this 
action for further explanation.
    Projection of emissions is a stepwise process starting with a base 
year emissions level, followed by application of factors for 
retirement, growth and controls. EPA developed the 2017 emission 
projections of Oil and Gas E&P based on information available in 2014-
2015. The emission projection from 2011 to 2017 used in the modeling 
for the SIP revision shows that if the emissions were not subject to 
controls, the emissions from Oil and Gas E&P in New Mexico would have 
increased 28.5%. However, emission control technologies implemented 
between 2011 and 2017 reduced projected 2017 emissions by 21.4%. As a 
result, the net projected NOX emission rate from Oil and Gas 
E&P for 2017 increased only 7.1% despite the activity growth in the 
sector.
    A stepwise emission projections process was also completed in 2016-
2017 when developing the 2023 modeling emissions for Oil and Gas E&P 
inventory. Like when developing the 2017 emission projections, EPA used 
the most recent data in development of the 2023 modeling emission 
inventory, therefore there were differences in growth projections 
between the 2017 model inventory and 2023 model emission inventories, 
(like updated growth projections for 2023 model emission inventory). 
The emission projection from 2011 to 2023 used in EPA's modeling shows 
that if the emissions were not subject to controls, the emissions from 
Oil and Gas E&P operations in New Mexico would have increased 27.8%. 
However, closures in New Mexico Oil and Gas E&P reduced the 2023 
projected emissions increase by 2.8%. Emission control technologies 
implemented between 2011 and 2023 also reduced projected 2023 emissions 
by 23.2%. As a result, the net projected New Mexico Oil and Gas E&P 
NOX emissions for 2023 were projected to increase only 1.8% 
(27.8%-2.8%-23.2%) from 2011 emission levels despite the projected 
activity growth in the sector.
    EPA used appropriate techniques and the most recently available 
data to estimate both base and projection year inventories for the Oil 
and Gas E&P sector in the 2017 and 2023 modeling. This supports the 
conclusion that it is appropriate to rely on EPA's assessment of the 
2017 and 2023 modeling to conclude that New Mexico's impact on all 
identified downwind receptors is below the 1 percent threshold of 0.75 
ppb in 2019-2020 and therefore that New Mexico will not significantly 
contribute to nonattainment or interfere with maintenance of the 2008 
ozone NAAQS in other states. A complete discussion of our evaluation is 
included in the Response to Comment Technical Support Document, which 
can be found in the docket for this action.

[[Page 26363]]

    Comment #2: The commenters state that they have not reviewed other 
inventory contributions but that the 2017 and 2023 emission projections 
from 2011 for other source categories (non-Oil and Gas E&P emissions) 
are likely not correct. The commenters then state that EPA should 
update its inventory using 2017 actual emissions data and use 2017 
actuals to project 2023 air quality, including a potential range of 
emissions scenarios for 2023.
    Response #2: EPA disagrees with the commenters' claim that the 2017 
and 2023 future year emission projections for other source categories 
are also incorrect. The commenters have not provided a reason to doubt 
the accuracy of the inventories and projections for these other 
sectors, nor have they provided information to support the claim. 
Therefore, EPA continues to believe that the methodologies used by EPA 
to calculate 2017 and 2023 future year projections are appropriate. For 
further explanation on how these inventories and projections are 
assessed, please see the more detailed response for Comment #1 in the 
Response to Comment Technical Support Document, which can be found in 
the docket for this action.
    In response to the commenters' suggestion that EPA should update 
its 2017 inventory with actual emissions, and include a range of 
emissions projections for 2023, EPA again disagrees. The 2017 NEI 
emissions for non-point Oil and Gas E&P emission sources were not yet 
available at the time EPA conducted the 2023 modeling, but nonetheless 
the commenter has not indicated how or whether the use of the 2017 data 
would be likely to change EPA's assessment of New Mexico's impact on 
downwind receptors.
    We do note, as explained in further detail below, it is also not 
reasonable to redo projections to 2023 and remodel impacts as part of 
the review of the New Mexico SIP. Redevelopment of emission inventories 
and performing photochemical grid modeling with source apportionment 
would take at least one to two years and significant resources. Such an 
effort is not a reasonable expectation without any indication that the 
use of 2017 data in its modeling is likely to lead to a different 
conclusion with respect to New Mexico's SIP. New Mexico utilized recent 
EPA modeling in developing its SIP submittals and we utilized even more 
recent analyses that were released in 2017 and 2018 to support our 
proposed approval action. As discussed above we used the most recent 
EIA AEO data at the time the emission inventories were generated. The 
commenter has not provided any information to support its conclusion 
that EPA would need to perform new modeling to support its approval of 
New Mexico's SIP, nor have the commenters provided any such updated 
modeling data. Therefore, EPA continues to believe that its analysis of 
the available data indicates that New Mexico will not significantly 
contribute to nonattainment or interfere with maintenance of the 2008 
ozone NAAQS in other states.

III. Final Action

    We are (1) determining that New Mexico and the City of Albuquerque-
Bernalillo County have met their obligation under CAA section 
110(a)(2)(D)(i)(I) because New Mexico will not significantly contribute 
to nonattainment or interfere with maintenance of the 2008 ozone NAAQS 
in any other state and (2) approving the October 10, 2018 New Mexico 
and October 4, 2018 City of Albuquerque-Bernalillo County SIP revisions 
for the 2008 ozone NAAQS interstate transport requirements of CAA 
110(a)(2)(D)(i)(I).

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     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, 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 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).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 6, 2020. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness

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of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen oxides, Ozone.

    Dated: April 16, 2020.
Kenley McQueen,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart GG--New Mexico

0
2. In Sec.  52.1620, the table in paragraph (e) entitled ``EPA Approved 
Nonregulatory Provisions and Quasi-Regulatory Measures in the New 
Mexico SIP'' is amended by adding an entry at the end of the table for 
``Interstate Transport for the 2008 Ozone NAAQS'' to read as follows:


Sec.  52.1620   Identification of plan

* * * * *
    (e) * * *

            EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP
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                                     Applicable
     Name of SIP provision          geographic or         State       EPA approval date        Explanation
                                 nonattainment area  submittal date
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                                                  * * * * * * *
Interstate Transport for the     Statewide.........      10/10/2018  5/4/2020, [Insert   SIPs adopted by: NMED
 2008 ozone NAAQS.                                        10/4/2018   Federal Register    and City of
                                                                      citation].          Albuquerque-Bernalillo
                                                                                          County. Addresses CAA
                                                                                          section
                                                                                          110(a)(2)(D)(i)(I).
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[FR Doc. 2020-08518 Filed 5-1-20; 8:45 am]
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