[Federal Register Volume 87, Number 123 (Tuesday, June 28, 2022)]
[Proposed Rules]
[Pages 38362-38365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13725]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2021-0772; FRL-9889-01-R6]
Air Plan Approval; New Mexico; Interstate Transport Requirements
for 2010 Nitrogen Dioxide National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve the State Implementation Plan (SIP) revision submitted by the
State of New Mexico, through New Mexico Environment Department (NMED)
dated June 25, 2021, for the purpose of addressing the Clean Air Act
(CAA or ``Act'') ``good neighbor'' interstate transport (prongs 1 and
2) infrastructure SIP requirements for the 2010 1-hour Nitrogen Dioxide
(NO2) National Ambient Air Quality Standard (NAAQS). The CAA
requires that each state adopt and submit a SIP for the implementation,
maintenance, and enforcement of each NAAQS promulgated by the EPA,
commonly referred to as an ``infrastructure SIP.'' Specifically, the
EPA is proposing to approve New Mexico's June 25, 2021, SIP revision
addressing prongs 1 and 2 to ensure that air emissions in the State do
not significantly contribute to nonattainment or interfere with
maintenance of the 2010 1-hour NO2 NAAQS in any other state.
The EPA is proposing to approve this action pursuant to section 110 and
part D of the CAA and the EPA's regulations.
DATES: Written comments must be received on or before July 28, 2022.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2021-0772, at https://www.regulations.gov. 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
[[Page 38363]]
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 the person
identified in the FOR FURTHER INFORMATION CONTACT SECTION. 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. 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: Ms. Nevine Salem, EPA Region 6 Office,
Infrastructure and Ozone Section, 214-665-7222, [email protected].
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 is 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 wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background
On January 22, 2010, the EPA established a new 1-hour primary NAAQS
for NO2 at a level of 100 parts per billion (ppb), based on
a 3-year average of the 98th percentile of the yearly distribution of
1-hour daily maximum concentrations.\1\ See 75 FR 6474 (February 9,
2010). This NAAQS is designed to protect against exposure to the entire
group of nitrogen oxides (NOX). NO2 is the
component of greatest concern and is used as the indicator for the
larger group of NOX. Emissions that lead to the formation of
NO2 generally also lead to the formation of other
NOX. Therefore, control measures that reduce NO2
can generally be expected to reduce population exposures to all gaseous
NOX which may have the co-benefit of reducing the formation
of ozone and fine particles both of which pose significant public
health threats. For comprehensive information on the 2010 1-hour
NO2 NAAQS, please refer to the February 9, 2010 Federal
Register action. See 75 FR 6474.
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\1\ Subsequently, after careful consideration of the scientific
evidence and information available, on April 18, 2018, EPA published
a final action to retain the current NO2 standard at the
2010 level of 100 ppb. This action was taken after review of the
full body of available scientific evidence and information, giving
particular weight to the assessment of the evidence in the 2016
NOX Integrated Science Assessment; analyses and
considerations in the Policy Assessment; the advice and
recommendations of the Clean Air Scientific Advisory Committee; and
public comments. See 83 FR 17226 (April 18, 2018).
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Whenever the EPA promulgates a new or revised NAAQS, CAA section
110(a)(1) requires states to submit SIPs meeting the applicable
requirements of section 110(a)(2) within 3 years after promulgation of
a new or revised NAAQS or within such shorter period as the EPA may
prescribe. Section 110(a)(2) requires states to address structural SIP
elements such as requirements for monitoring, basic program
requirements, and legal authority that are designed to provide for
implementation, maintenance, and enforcement of the NAAQS. The EPA
refers to the SIP submissions required by these provisions as
``infrastructure SIPs.'' Section 110(a) imposes the obligation upon
states to make an infrastructure SIP submission to the EPA for a new or
revised NAAQS, but the contents of individual state submissions may
vary depending upon the facts and circumstances. This proposed rule
pertains to the infrastructure SIP requirements for interstate
transport of air pollution. These submissions must meet the various
requirements of CAA section 110(a)(2), as applicable.\2\
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\2\ States were required to submit infrastructure SIPs for the
2010 1-hour NO2 NAAQS to EPA no later than January 22,
2013.
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Section 110(a)(2)(D)(i) of the CAA requires SIPs to include
provisions prohibiting any source or other type of emissions activity
in one state from emitting any air pollutant in amounts that will
contribute significantly to nonattainment, or interfere with
maintenance, of the NAAQS, or interfere with measures required to
prevent significant deterioration of air quality or to protect
visibility in any other state. This proposed rule addresses the two
requirements under section 110(a)(2)(D)(i)(I), which we refer to as
prong 1 (significant contribution to nonattainment of the NAAQS in any
other state) and prong 2 (interference with maintenance of the NAAQS in
any other state). The EPA often refers to SIP revisions addressing the
requirements of section 110(a)(2)(D)(i)(I) as ``interstate transport
SIPs.''
The EPA evaluates each state's interstate transport SIP to see how
the state evaluates the transport of air pollution to other states for
a given air pollutant; what types of information the state used in its
analysis; how that analysis compares with prior EPA rulemakings,
modeling, monitoring, and guidance; and what conclusions were drawn by
the state. If the EPA concludes that the SIP contains adequate
provisions to prohibit sources from emitting air pollutants that
significantly contribute to nonattainment, or interfere with
maintenance, of a given NAAQS in any other state, we will approve the
state's submission with regard to prongs 1 and 2 of CAA section
110(a)(2)(D)(i)(I).
II. State's Submittal
On March 12, 2014, the New Mexico Environment Department (NMED)
submitted its Infrastructure SIP to the EPA for the revised 2010 1-hour
NO2 standard. At that time, NMED addressed the 2010
NO2 interstate transport prongs 1 and 2 by referencing the
EPA's November 19, 2012 Memorandum \3\ which outlined the EPA's
intention to abide by the August 21, 2012 decision of the U.S. Court of
Appeals for the D.C. Circuit, holding that a SIP cannot be deemed
deficient for failing to meet the prong 1 and 2 requirements in Section
110(a)(2)(D)(i) before the EPA quantifies the state's obligation. EME
Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012). In the
March 2014 submittal, the state stated that the EPA had not yet
quantified New Mexico's interstate transport obligation under the 2010
NO2 and therefore New Mexico's infrastructure SIP was
adequate for section 110(a)(2)(D)(i)(I).
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\3\ See ``Next Steps for Pending Redesignation Requests and
State Implementation Plan Actions Affected by the Recent Court
Decision Vacating the 2011 Cross-State Air Pollution Rule,'' signed
by EPA Assistant Administrator Gina McCarthy November 19, 2012. This
memorandum is in the docket for this action.
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On April 29, 2014, the U.S. Supreme Court reversed and remanded the
D.C. Circuit's EME Homer City ruling and upheld the EPA's approach in
the Cross-State Air Pollution Rule. EPA v. EME Homer City Generation,
L.P., 572 U.S. 489 (2014). As a result of the Supreme Court reversal,
each state was again required to address the interstate transport
requirements of 110(a)(2)(D)(i) regardless of whether the EPA had
quantified the state's obligation. In accordance with the Supreme
Court's
[[Page 38364]]
decision, on June 25, 2021, the state of New Mexico supplemented its
2010 NO2 infrastructure SIP to address interstate transport
prongs 1 and 2 of Section 110(a)(2)(D)(i), the submission supplements
the State's prior 2014 interstate transport SIP for the NO2
NAAQS.
III. The EPA's Evaluation
A. Evaluation for the 2010 1-Hour NO2
1. The EPA's General Approach To Evaluating the 2010 NO2
Unlike certain other NAAQS like ozone and PM2.5, the EPA
has not developed a recommended approach for states to use when
addressing prongs 1 and 2 for the 2010 NO2 NAAQS. Following
promulgation of the 2010 NO2 NAAQS, the EPA designated all
areas of the United States as ``unclassifiable/attainment'' for this
NAAQS because monitors throughout the country had indicated no
violations of the NAAQS from 2008-2010.\4\ 77 FR 9532 (February 17,
2012). Additionally, no violations occurred at any monitor in the
country in the most recent available design value period of 2018-
2020.\5\ For these reasons, 110(a)(2)(D)(i)(I) demonstrations for
states have been relatively straightforward because the EPA has not
identified areas in any state to which emissions from another state
would likely contribute significantly to nonattainment or interfere
with maintenance.
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\4\ For comparison with the 2010 NO2 1-hour NAAQS, a
three-year design value is used. 40 CFR 50.11(f).
\5\ See https://www.epa.gov/air-trends/air-quality-design-values#report. As this report indicates, no regulatory monitor in
the U.S. recorded a design value above 80 ppb for the 2018-2020
design value period.
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2. State's Submission
In New Mexico's June 25, 2021, SIP revision, NMED concluded that
its SIP adequately addresses prong 1 and 2 with respect to the 2010 1-
hour NO2 NAAQS. NMED provided the following reasons for its
determinations: (1) all areas in the United States are designated as
unclassifiable/attainment for the 2010 1-hour NO2 NAAQS; (2)
there are SIP-approved and state-only regulations that directly or
indirectly control NO2 emissions.
3. The EPA's Analysis
In addition to the information provided in the SIP, the EPA notes
that the highest monitored valid NO2 design values in each
state bordering New Mexico are well below the NAAQS (see Table 1,
below), as are the maximum single year 98th percentile values from each
neighboring state between 2018-2020 (see Table 2, below). These facts
further support the State's assertion that significant contribution to
nonattainment or interference with maintenance of the NO2
NAAQS from New Mexico is unlikely.
Table 1--1-Hour NO2 Design Values in New Mexico and Neighboring States
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2018-2020 NO2
State design value
(ppb)
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New Mexico.......................................... 38
Arizona............................................. 49
Colorado............................................ 52
Oklahoma............................................ 26
Texas............................................... 32
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Table 2--Max 98th Percentile NO2 Concentration in New Mexico and
Neighboring States
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Highest single
year 98th
State Year percentile value
from 2018-2020
(ppb)
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New Mexico...................... 2020 49
Arizona......................... 2018 62
Colorado........................ 2020 71
Oklahoma........................ 2018 41
Texas........................... 2018 69
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With respect to prong 2 (interference with maintenance),
specifically, in addition to the lack of areas violating the
NO2 NAAQS, there are also no areas in neighboring states
approaching a violation of the 2010 NO2 NAAQS (i.e., 100
ppb) which might therefore be expected to have difficulty maintaining
the standard. With respect to both prongs, we also note that there are
no areas elsewhere in the United States approaching a violation of the
2010 NO2 NAAQS.
NMED notified the public with the publication of the notice in both
print and online versions of the Albuquerque Journal (in English and
Spanish). The public notice provided opportunity for comment and public
hearing. NMED did not receive any public comment and no request for
public hearing was received. A copy of the New Mexico SIP revision
submittal is available online at www.regulations.gov, Docket number
EPA-R06-OAR-2021-0772
IV. Proposed Action
Based on our review of New Mexico's June 25, 2021, SIP revision
submission, and our analysis of additional relevant information, we
propose to determine that emissions from New Mexico will not
significantly contribute to nonattainment or interfere with the
maintenance of the 2010 NO2 NAAQS in any other state.
Accordingly, we propose to approve the June 25, 2021, New Mexico SIP
submission as satisfying the requirements of CAA section
110(a)(2)(D)(i)(I) for the 2010 1-hour NO2 NAAQS interstate
transport prongs 1 and 2. The EPA is soliciting public comments on this
proposed action and will consider public comments received during the
comment period.
[[Page 38365]]
V. 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 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.'' \6\ The 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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\6\ https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
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The EPA reviewed demographic data, which provides an assessment of
individual demographic groups of the populations within New Mexico.\7\
The EPA then compared the data to the national average for each of the
demographic groups. The results of the demographic analysis indicate
that, for populations within New Mexico, the percentage of 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 (63.8 percent versus 40 percent). Within people of
color, the percentage of the population that is Hispanic or Latino is
higher than the national averages (49.3 percent versus 18.5 percent)
and the percentage of the population that is American Indian/Alaska
Native is also higher than the national average (11.0 percent versus
1.3 percent). The percentage of people living below the poverty level
in New Mexico is higher than the national average (16.8 percent versus
11.4 percent). The percentage of people over 25 with a high school
diploma in New Mexico is slightly below the national average (86.5
percent versus 88.5 percent), similarly, for the percentage with a
bachelor's degree or higher education is slightly lower than the
national average (28.1 percent versus 32.9 percent).
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\7\ See the United States Census Bureau's QuickFacts on New
Mexico at https://www.census.gov/quickfacts/fact/table/NM,US/PST045221.
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Communities in close proximity to and/or downwind of industrial
sources may be subject to disproportionate environmental impacts of
NO2 emissions. Short- and/or long-term exposure to elevated
concentrations of NO2 may contribute to the development of
asthma and may potentially increase susceptibility to respiratory
infections. People with asthma, as well as children and the elderly are
generally at greater risk for the health effects of NO2.\8\
However, there are no areas in New Mexico or nationwide that show
problems attaining or maintaining air quality with regard to
NO2 emissions that may contribute to environmental and
health impacts on all populations including minority and low-income
population. In addition, the national average of NO2
concentrations have decreased substantially over the years.\9\ We
therefore conclude that this proposed rule will not have or lead to
disproportionately high or adverse human health or environmental
effects on communities with environmental justice concerns.
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\8\ https://www.epa.gov/air-quality-management-process/managing-air-quality-human-health-environmental-and-economic#what (URL dated
03/16/2022).
\9\ See https://www.epa.gov/air-trends/nitrogen-dioxide-trends.
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VI. 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);
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, Nitrogen dioxide, Ozone, Reporting and record keeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 22, 2022.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2022-13725 Filed 6-27-22; 8:45 am]
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