[Federal Register Volume 87, Number 113 (Monday, June 13, 2022)]
[Proposed Rules]
[Pages 35701-35705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12608]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2016-0673; FRL-9878-01-R6]


Air Plan Approval; Albuquerque-Bernalillo County, New Mexico; 
Excess Emissions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA, the Act), the 
Environmental Protection Agency (EPA) is proposing to approve a State 
Implementation Plan (SIP) revision from the New Mexico Environment 
Department (NMED) submitted on October 17, 2016, on behalf of the

[[Page 35702]]

Albuquerque-Bernalillo County Air Quality Control Board (Air Board). 
The October 17, 2016 submittal is in response to the EPA's national SIP 
call on June 12, 2015, concerning excess emissions during periods of 
Startup, Shutdown, and Malfunction (SSM). The submittal requests the 
removal of the provisions identified in the 2015 SIP call from the New 
Mexico SIP. EPA is proposing to determine that the withdrawal of the 
substantially inadequate provisions from the SIP corrects the 
deficiency identified in the June 12, 2015 SIP call.

DATES: Comments must be received on or before July 13, 2022.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2016-0673 at 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 
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 Mr. Alan Shar, (214) 665-
6691, [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 Office, 1201 Elm Street, Suite 500, Dallas, Texas 75270. While 
all documents in the docket are listed in the index, some information 
may be publicly available only at the hard copy location (e.g., 
copyrighted material), and some may not be publicly available at either 
location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Regional Haze and 
SO2 Section, EPA Region 6 Office, 1201 Elm Street, Suite 
500, Dallas, Texas 75270, (214) 665-6691, [email protected]. Out of an 
abundance of caution for members of the public and our staff, the EPA 
Region 6 office may be closed to the public to reduce the risk of 
transmitting COVID-19. We encourage the public to submit comments via 
https://www.regulations.gov, as there will be a delay in processing 
mail and no courier or hand deliveries will be accepted. Please call or 
email the contact listed above if you need alternative access to 
material indexed but not provided in the docket.

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

Table of Contents

I. Background
    A. EPA's 2015 SSM SIP Action
    B. New Mexico's Part 49 Provisions on Excess Emissions
II. Analysis of SIP Submission
III. Proposed Action
IV. Environmental Justice Considerations
V. Incorporation by Reference
VI. Statutory and Executive Orders Review

I. Background

A. EPA's 2015 SSM SIP Action

    On February 22, 2013, EPA issued a Federal Register proposed 
rulemaking action outlining EPA's policy at the time with respect to 
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP 
provisions and explained how each one either did or did not comply with 
the CAA with regard to excess emission events.\1\ For each SIP 
provision that the EPA determined to be inconsistent with the CAA, the 
EPA proposed to find that the existing SIP provision was substantially 
inadequate to meet CAA requirements and thus proposed to issue a SIP 
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a 
document supplementing and revising what the Agency had previously 
proposed on February 22, 2013, in light of a D.C. Circuit decision that 
determined the CAA precludes authority of the EPA to create affirmative 
defense provisions.\2\ EPA outlined its updated policy that affirmative 
defense SIP provisions are not consistent with CAA requirements. EPA 
proposed in the supplemental proposal document to apply its revised 
interpretation of the Act to specific affirmative defense SIP 
provisions and proposed SIP calls for those provisions where 
appropriate (79 FR 55920, September 17, 2014).
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    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, (78 FR 12460) Feb. 22, 2013.
    \2\ The term affirmative defense means, in the context of an 
enforcement proceeding, a response or defense put forward by a 
defendant, regarding which the defendant has the burden of proof, 
and the merits of which are independently and objectively evaluated 
in a judicial or administrative proceeding.
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    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings 
of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying 
to Excess Emissions During Periods of Startup, Shutdown and 
Malfunction,'' (80 FR 33839, June 12, 2015), hereafter referred to as 
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified, 
restated, and updated EPA's interpretation that SSM exemption and 
affirmative defense SIP provisions are inconsistent with CAA 
requirements. The 2015 SSM SIP Action found that certain SIP provisions 
in 36 states were substantially inadequate to meet CAA requirements and 
issued a SIP call to those states to submit SIP revisions to address 
the inadequacies. EPA established an 18-month deadline by which the 
affected states had to submit such SIP revisions. States were required 
to submit corrective revisions to their SIPs in response to the SIP 
calls by November 22, 2016. Included was a SIP call to Albuquerque-
Bernalillo County, New Mexico, and the detailed rationale for the 
issuance of that SIP call can be found in the 2015 SSM SIP Action and 
the preceding proposed actions. The EPA is not reopening the 2015 SSM 
SIP Action here.
    EPA issued a Memorandum in October 2020 (2020 Memorandum), which 
stated that certain provisions governing SSM periods in SIPs could be 
viewed as consistent with CAA requirements.\3\ Importantly, the 2020 
Memorandum stated that it ``did not alter in any way the determinations 
made in the 2015 SSM SIP Action that identified specific state SIP 
provisions that were substantially inadequate to meet the requirements 
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on 
the SIP call issued to Albuquerque-Bernalillo County, New Mexico in 
2015. The 2020 Memorandum did, however, indicate the EPA's intent at 
the time to review SIP calls that were issued in the 2015 SSM SIP 
Action to determine whether the EPA should maintain, modify, or

[[Page 35703]]

withdraw particular SIP calls through future agency actions.
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    \3\ October 9, 2020, Memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 
Memorandum and announced the EPA's return to the policy articulated in 
the 2015 SSM SIP Action (2021 Memorandum).\4\ As articulated in the 
2021 Memorandum, SIP provisions that contain exemptions or affirmative 
defense provisions are not consistent with CAA requirements and, 
therefore, generally are not approvable if contained in a SIP 
submission. This policy approach is intended to ensure that all 
communities and populations, including minority, low-income and 
indigenous populations overburdened by air pollution, receive the full 
health and environmental protections provided by the CAA.\5\ The 2021 
Memorandum also retracted the prior statement from the 2020 Memorandum 
of EPA's plans to review and potentially modify or withdraw particular 
SIP calls. That statement no longer reflects EPA's intent. EPA intends 
to implement the principles laid out in the 2015 SSM SIP Action as the 
agency takes action on SIP submissions, including this SIP submittal 
provided in response to the 2015 SIP call.
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    \4\ September 30, 2021, Memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
    \5\ Section J, June 12, 2015 (80 FR 33985).
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B. New Mexico's Part 49 Provisions on Excess Emissions

    New Mexico Administrative Code (NMAC), Title 20 Environmental 
Protection, Chapter 11 Albuquerque-Bernalillo County Air Quality Board, 
Part 49 Excess Emissions (20.11.49 NMAC) (hereinafter ``Part 49'') was 
approved by the EPA into the New Mexico SIP on February 4, 2010, and 
became federally effective on April 5, 2010.
    As a part of the EPA's 2015 SSM SIP Action, the EPA made a finding 
that certain provisions in Part 49--namely, 20.11.49.16.A NMAC, 
20.11.49.16.B NMAC, and 20.11.49.16.C NMAC of the New Mexico SIP--are 
substantially inadequate to meet CAA requirements, and thus issued a 
SIP call with respect to these provisions because these provisions 
provide for an affirmative defense.\6\ Although not part of the finding 
in the 2015 SIP call, the EPA noted that removal of 20.11.49.16.A NMAC, 
20.11.49.16.B NMAC and 20.11.49.16.C NMAC from the New Mexico SIP would 
render other sections of 20.11.49 NMAC of the New Mexico SIP 
superfluous and no longer operative.\7\
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    \6\ See Affected States in EPA Region VI, section IX.G.4, June 
12, 2015 (80 FR 33968).
    \7\ More specifically, EPA stated that ``removal of 
20.11.49.16.A NMAC, 20.11.49.16.B NMAC and 20.11.49.16.C NMAC from 
the SIP will render 20.11.49.16.D NMAC, 20.11.49.16.E, 20.11.49.15.B 
(15) (concerning reporting by a source of intent to assert an 
affirmative defense for a violation), a portion of 20.11.49.6 NMAC 
(concerning the objective of establishing affirmative defense 
provisions) and 20.11.49.18 NMAC (concerning actions where a 
determination has been made under 20.11.49.16.E NMAC) superfluous 
and no longer operative, and the EPA thus recommends that these 
provisions be removed as well.'' (80 FR 33968, June 12, 2015).
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II. Analysis of SIP Submission

    In response to the EPA's June 12, 2015 SIP call, NMED (on behalf of 
the Air Board) requested by letter dated October 17, 2016, that the EPA 
approve the removal of 20.11.49 NMAC in its entirety from the New 
Mexico SIP, including the three provisions found by EPA's June 12, 2015 
SIP call to be substantially inadequate to meet CAA requirements.\8\ 
The removal of 20.11.49 NMAC from the New Mexico SIP eliminates the 
provisions related to excess emissions, including the affirmative 
defense provisions identified in the June 12, 2015 SIP call. EPA 
believes that removal of 20.11.49 NMAC from the New Mexico SIP will not 
affect the adequacy of the remaining portions of the New Mexico SIP.
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    \8\ October 17, 2016, submittal letter from NMED Cabinet 
Secretary to EPA Region 6 Regional Administrator.
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    Although not part of the SIP submittal at issue in this proposed 
rulemaking, the Air Board amended Part 49 on September 14, 2016, to 
replace the affirmative defense provisions with ``state-only'' 
enforcement discretion provisions. EPA has reviewed the language of 
20.11.49 NMAC, as amended, and notes that the enforcement discretion 
criteria apply only to the State's own enforcement personnel and not to 
the EPA or others.\9\ Therefore, if finalized as proposed, the New 
Mexico SIP applicable to sources located in Albuquerque-Bernalillo 
County will not include specific provisions relating to excess 
emissions during SSM periods; however, Part 49, as amended, does 
provide ``state-only'' enforcement discretion provisions applicable to 
excess emissions by such sources and how violations related to excess 
emissions will be handled by state enforcement personnel.
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    \9\ 20.11.49.16 NMAC states, in part, ``The owner or operator of 
a source who contends that an excess emission occurred during 
startup, shutdown, malfunction, or emergency may submit to the 
department a supplemental report . . . The information in the 
supplemental report may be considered by the department at its sole 
discretion and is not intended to be enforceable in a legal 
proceeding by any party or to limit the enforcement authority of any 
party. 20.11.49.16 NMAC shall not be construed to preclude EPA or 
federal court jurisdiction under Section 113 of the federal act to 
assess civil penalties or other forms of relief for periods of 
excess emissions, to prevent EPA or the courts from considering the 
statutory factors for the assessment of civil penalties under 
Section 113 of the federal act, or to interfere with the rights of 
litigants to pursue enforcement consistent with their rights under 
the citizen suit provision of Section 304 of the federal act.''
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    The submittal also includes an analysis to demonstrate compliance 
with section 110(l) of the Act.\10\ Elimination of the Part 49 
provisions from the New Mexico SIP is not expected to lead to any 
emissions increase. Therefore, we do not believe the proposed revisions 
would interfere with attainment and reasonable further progress, or any 
applicable requirement of the CAA. Consequently, we are proposing to 
approve the removal of 20.11.49 NMAC Excess Emissions from the 
Albuquerque-Bernalillo County provisions of the New Mexico SIP.
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    \10\ See pdf pages 229-233 of the submittal Docket ID No. EPA-
R06-OAR-2016-0673 available at www.regulations.gov.
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III. Proposed Action

    The EPA is proposing to approve a revision to the Albuquerque-
Bernalillo County provisions of the New Mexico SIP submitted on October 
17, 2016, in response to the EPA's national SIP call of June 12, 2015, 
concerning excess emissions during periods of SSM. More specifically, 
we are proposing to approve the removal of Part 49 Excess Emissions 
from the Albuquerque-Bernalillo County provisions of the New Mexico 
SIP. We are proposing to approve these revisions in accordance with 
section 110 of the Act. EPA is further proposing to determine that such 
SIP revision corrects the deficiency identified in the June 12, 2015 
SIP call. EPA is not reopening the 2015 SSM SIP Action and is only 
taking comment on whether this proposed SIP revision is consistent with 
CAA requirements and whether it addresses the substantial inadequacy in 
the specific Albuquerque-Bernalillo County provisions identified in the 
2015 SSM SIP Action.

IV. Environmental Justice Considerations

    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations

[[Page 35704]]

and low-income populations to the greatest extent practicable and 
permitted by law. The EPA defines environmental justice (EJ) as ``the 
fair treatment and meaningful involvement of all people regardless of 
race, color, national origin, or income with respect to the 
development, implementation, and enforcement of environmental laws, 
regulations, and policies.'' The EPA further defines the term fair 
treatment to mean that ``no group of people should bear a 
disproportionate burden of environmental harms and risks, including 
those resulting from the negative environmental consequences of 
industrial, governmental, and commercial operations or programs and 
policies.'' \11\ EPA is providing additional analysis of environmental 
justice associated with this action for the purpose of providing 
information to the public.
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    \11\ https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
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    EPA reviewed demographic data, which provides an assessment of 
individual demographic groups of the populations living within 
Bernalillo County.\12\ The EPA then compared the data to the national 
average for each of the demographic groups.\13\ The results of the 
demographic analysis indicate that, for populations within Bernalillo 
County, the percent people of color (persons who reported their race as 
a category other than White alone (not Hispanic or Latino)) is 
significantly higher than the national average (61.2 percent versus 40 
percent). Within people of color, the percent of the population that is 
Hispanic or Latino is higher than the national averages (50.3 percent 
versus 18.5 percent) and the percent of the population that is American 
Indian/Alaska Native is also higher than the national average (6.3 
percent versus 1.3 percent). The percent of people living below the 
poverty level in Bernalillo County is higher than the national average 
(15.3 percent versus 11.4 percent). The percent of people over 25 with 
a high school diploma in Bernalillo County is similar to the national 
average (90 percent versus 88.5 percent), while the percent with a 
Bachelor's degree or higher is slightly higher than the national 
average (35.3 percent versus 32.9 percent).
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    \12\ https://www.census.gov/quickfacts/fact/table/NM,bernalillocountynewmexico,US/PST045221.
    \13\ Id.
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    Communities in close proximity to and/or downwind of industrial 
sources may be subject to disproportionate environmental impacts of 
excess emissions. Short- and/or long-term exposure to air pollution has 
been associated with a wide range of human health effects including 
increased respiratory symptoms, hospitalization for heart or lung 
diseases, and even premature death. Excess emissions during startups, 
shutdowns, and malfunctions exceed applicable emission limitations and 
can be considerably higher than emissions under normal steady-state 
operations. As to all population groups within the Bernalillo County 
area, as explained below we believe that this proposed action will be 
beneficial and will tend to reduce impacts. As discussed earlier in 
this notice, this rulemaking, if finalized as proposed, would result in 
the removal of the provisions in the New Mexico SIP applicable to 
Bernalillo County that provide sources emitting pollutants in excess of 
otherwise allowable amounts with the opportunity to assert an 
affirmative defense to violations involving excess emissions during 
startup, shutdown, and malfunctions. Removal of such impermissible 
affirmative defense provisions from the SIP is necessary to preserve 
the enforcement structure of the CAA, to preserve the jurisdiction of 
courts to adjudicate questions of liability and remedies in judicial 
enforcement actions and to preserve the potential for enforcement by 
the EPA and other parties under the citizen suit provision as an 
effective deterrent to violations. If finalized as proposed, this 
action is intended to ensure that all communities and populations 
across Bernalillo County and downwind areas, including people of color 
and low-income and indigenous populations overburdened by pollution, 
receive the full human health and environmental protection provided by 
the CAA through the removal of affirmative defense provisions that have 
interfered with the enforcement structure of the CAA by raising 
inappropriate impediments to enforcement by states, the EPA, or 
citizens. We therefore propose to determine that this rule, if 
finalized, will not have disproportionately high or adverse human 
health or environmental effects on communities with environmental 
justice concerns.

V. Incorporation by Reference

    In this action, we are proposing to include in a final rule 
regulatory text that includes incorporation by reference. In accordance 
with the requirements of 1 CFR 51.5, we are proposing to incorporate by 
reference revisions to Albuquerque-Bernalillo County's regulations, as 
described in the Proposed Action section above. The EPA has made, and 
will continue to make, these documents generally available 
electronically through www.regulations.gov and in hard copy at the EPA 
Region 6 office.

VI. Statutory and Executive Order Reviews

    Under the Act, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Act. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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 Act; 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

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Indian country, the proposed rule does not have tribal implications and 
will not impose substantial direct costs on tribal governments or 
preempt tribal law as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Particulate matter, Sulfur dioxide, Reporting 
and recordkeeping requirements, Volatile organic compounds.

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

    Dated: June 1, 2022.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2022-12608 Filed 6-10-22; 8:45 am]
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