[Federal Register Volume 87, Number 160 (Friday, August 19, 2022)]
[Proposed Rules]
[Pages 51041-51044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17384]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2021-0837; FRL-10029-01-R6]


Air Plan Approval; New Mexico; Clean Air Act Requirements for 
Nonattainment New Source Review Permitting for the 2015 8-Hour Ozone 
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is proposing to approve revisions 
to the New Mexico State Implementation Plan (SIP) submitted by the 
State of New Mexico on August 10, 2021, that update the New Mexico 
Nonattainment New Source Review (NNSR) permitting program for the 2015 
8-hour ozone National Ambient Air Quality Standards (NAAQS).

DATES: Written comments must be received on or before September 19, 
2022.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2021-0837, 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 Adina Wiley, (214) 665-
2115, [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. 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: Adina Wiley, EPA Region 6 Office, Air 
Permits Section (ARPE), 214-665-2115, [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. 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

    Ozone is a gas that is formed by the reaction of Volatile Organic 
Compounds (VOC) and Oxides of Nitrogen (NOX) in the 
atmosphere in the presence of sunlight. These precursors (VOC and 
NOX) are emitted by many types of pollution sources, 
including point sources such as power plants and industrial emissions 
sources; on-road and off-road mobile sources (motor vehicles and 
engines); and smaller residential and commercial sources, such as dry 
cleaners, auto body shops, and household paints, collectively referred 
to as area sources.
    On October 1, 2015, the EPA revised both the primary and secondary 
ozone NAAQS \1\ from a concentration level of 0.075 part per million 
(ppm) to 0.070 ppm to provide increased protection of public health and 
the environment (80 FR 65296, October 26, 2015). The 2015 8-hour ozone 
NAAQS retains the same general form and averaging time as the 0.075 ppm 
NAAQS set in 2008. Specifically, the 2015 8-hour ozone NAAQS is 
attained when the 3-year average of the annual fourth-highest daily 
maximum 8-hour average ambient air quality ozone concentrations is less 
than or equal to 0.070 ppm.\2\
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    \1\ The primary ozone standards provide protection for children, 
older adults, and people with asthma or other lung diseases, and 
other at-risk populations against an array of adverse health effects 
that include reduced lung function, increased respiratory symptoms 
and pulmonary inflammation; effects that contribute to emergency 
department visits or hospital admissions; and mortality. The 
secondary ozone standards protect against adverse effects to the 
public welfare, including those related to impacts on sensitive 
vegetation and forested ecosystems. See CAA Section 109(b).
    \2\ For a detailed explanation of the calculation of the 3-year 
8-hour average, see 80 FR 65296 and 40 Code of Federal Regulations 
(CFR) part 50, appendix U.
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    On March 9, 2018 (83 FR 10376), the EPA published the 
Classifications Rule that prescribes how the statutory classifications 
will apply for the 2015 8-hour ozone NAAQS, including the air quality 
thresholds for each classification category and attainment deadline 
associated with each classification.
    On June 4, 2018 (83 FR 25776), the EPA designated the Sunland Park 
Area in southern Do[ntilde]a Ana County, New Mexico as marginal 
nonattainment for the 2015 8-hour ozone NAAQS with an attainment 
deadline of August 3, 2021.\3\ On November 30, 2021 (86 FR 67864), the 
EPA expanded the marginal nonattainment area that previously only 
included the Sunland Park Area in Do[ntilde]a Ana County, New Mexico to 
also include El Paso County, Texas and renamed the marginal 
nonattainment designated area as the El Paso-Las Cruces, TX-NM 
nonattainment area.
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    \3\ The specific portion of New Mexico included in the 
nonattainment area is defined as the area bounded on the New Mexico-
Texas state line on the east, the New Mexico-Mexico international 
line on the south, latitude N31[deg]49'0'' on the north, and 
longitude W106[deg]36'36'' on the west. See 83 FR 25776, 25820.
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    On December 6, 2018 (83 FR 6299), the EPA published the 
Nonattainment Area SIP Requirements rule that establishes the minimum 
elements that must be included in all nonattainment SIPs, including the 
requirements for NNSR permitting.
    On August 10, 2021, the New Mexico Environment Department (NMED) 
submitted a SIP revision to the New Mexico NNSR permitting program to

[[Page 51042]]

address the requirements of the 2015 8-hour ozone NAAQS.

II. The EPA's Evaluation

    A NNSR permitting program for ozone nonattainment areas is required 
by the CAA section 182(a)(2)(C). The NNSR requirements are further 
defined in 40 CFR part 51, subpart I (Review of New Sources and 
Modifications). NNSR permits for ozone authorize construction of new 
major sources or major modifications of existing sources of 
NOX or VOC in an area that is designated nonattainment for 
the ozone NAAQS. New major sources or major modifications at existing 
sources in an ozone nonattainment area must comply with the lowest 
achievable emission rate (LAER) and obtain sufficient emission offsets 
for emissions of NOX or VOC. Emissions thresholds and 
pollutant offset requirements under the NNSR program are based on the 
nonattainment area's classification. For Marginal ozone nonattainment 
areas, major sources are any stationary source or group of sources 
located within a contiguous area and under common control that emits, 
or has the potential to emit, at least 100 tons per year of 
NOX or VOC (CAA sections 182(a) and 182(f)). The NNSR offset 
ratio for Marginal ozone nonattainment areas must be at least 1.1 to 1 
(CAA section 182(a)(4)). NNSR programs must also provide the 
opportunity for public involvement in the permitting process through 
notification of the proposed actions and providing review and comment 
periods to the public (40 CFR 51.165(i)).

A. Evaluation of the Revisions to the New Mexico NNSR Regulations

    The current federally approved New Mexico SIP includes an NNSR 
permitting program at 20.2.79 New Mexico Administrative Code (NMAC). 
Upon designation of the Sunland Park area as Marginal nonattainment, 
the NMED initiated an internal review of the New Mexico NNSR permitting 
rules and determined their rules would need to be updated to maintain 
consistency with the Federal NNSR permitting requirements at 40 CFR 
51.165. New Mexico adopted these updates on July 21, 2021. These 
updates were submitted to the EPA on August 10, 2021, as a revision to 
the New Mexico SIP. Following is a summary of our analysis of the 
August 10, 2021, submitted revisions. Please refer to the Technical 
Support Document for this proposed action, available in the rulemaking 
docket, for the full detailed analysis.
     Section 20.2.79.5 NMAC was revised to include the current 
effective date of the New Mexico regulations of August 21, 2021. This 
non-substantive revision is approvable and necessary to keep the New 
Mexico SIP updated with the current New Mexico regulations.
     Section 20.2.79.7 NMAC was revised to update the 
definitions used throughout the New Mexico NNSR permitting program. The 
revisions summarized below are substantive edits that are approvable 
and necessary to maintain consistency with Federal requirements.
    [cir] The definition of ``net emissions increase'' at 20.2.79.7(Z) 
NMAC was updated to revise internal cross-references and is consistent 
with the Federal requirements at 40 CFR 51.165(a)(1)(vi).
    [cir] The definition of ``nonattainment area'' at 20.2.79.7(AA) 
NMAC was revised to align with the designation process followed by the 
EPA under CAA section 107.
    [cir] The definition of ``potential to emit'' at 20.2.79.7(AE) NMAC 
was revised to state that secondary emissions do not count in 
determining the potential to emit of a stationary source, consistent 
with the Federal requirements at 40 CFR 51.165(a)(1)(iii).
     Section 20.2.79.9 NMAC was revised to update the address 
of the NMED, Air Quality Bureau. This non-substantive revision is 
approvable and necessary to ensure that the public and regulated 
community can obtain any documents cited in the NNSR regulations.
     Section 20.2.79.109 NMAC was revised at 20.2.79.109(A)(2), 
20.2.79.109(E), 20.2.79.109(J), 20.2.79.109(K), and 20.2.79.109(L). The 
revisions to 202.2.79(A)(2) substantively revise the existing SIP 
language to mirror the Federal requirements at 40 CFR 51.165(b)(1) and 
(2). The revisions to 20.2.79.109(E), (J) and (K) are non-substantive 
revisions to update internal cross-references and clarify existing rule 
language. The revisions to 20.2.79.109(L) substantively revise the 
existing SIP language to mirror the Federal requirements at 40 CFR 
51.165(a)(9)(iv).
     Section 20.2.79.115 NMAC was revised at 20.2.79.115(F)(1) 
NMAC to specify that emission reductions achieved by shutting down an 
existing emission unit or curtailing production or operating hours may 
be generally creditable for emission offset purposes if the reduction 
is surplus in addition to being permanent, quantifiable and federally 
enforceable. This substantive revision is approvable and necessary to 
ensure that the New Mexico NNSR program is consistent with the Federal 
requirements at 40 CFR 51.165(a)(3)(ii)(C)(1).
     Section 20.2.79.119 NMAC was revised at 20.2.79.119(B)(7) 
NMAC to correctly identify the input rate for fossil fuel boilers 
listed as fugitive emission source categories as 250 million British 
Thermal Units (mmBTU)/hr instead of 50 mmBTU/hr. This substantive 
revision is approvable and necessary to ensure the New Mexico NNSR 
program is consistent with the Federal requirements at 40 CFR 
51.165(a)(1)(iv)(C)(21).
     Section 20.2.79.120 NMAC was revised at 20.2.79.120(I)(5) 
to update an internal cross-reference to another portion of the New 
Mexico NNSR program rules. This revision is approvable and necessary to 
ensure the permitting program functions as intended.

B. Evaluation of How the New Mexico NNSR Program Satisfies the 2015 8-
Hour Ozone NAAQS Requirements

    The Sunland Park Area in southern Do[ntilde]a Ana County, New 
Mexico is designated as marginal nonattainment area for the 2015 8-hour 
ozone NAAQS. Under the SIP-approved requirement at 20.2.79.109(A)(1) 
NMAC, the New Mexico NNSR permitting program applies to any new major 
sources or major modifications that will be located within a 
nonattainment area designated pursuant to Section 107 of the CAA. New 
major sources or major modifications at existing sources, that emit or 
have the potential to emit, at least 100 tons per year of 
NOX or VOC, are required to comply with the LAER and obtain 
emission offsets at the Marginal classification ratio of 1.1 to 1. The 
New Mexico NNSR program at 20.2.79.118 NMAC ensures the public will be 
notified by advertisement in a newspaper of general circulation in the 
area in which the proposed major stationary source or major 
modification will be constructed and provided with a 45-day review and 
comment period.
    Therefore, we propose to find that the New Mexico SIP includes the 
necessary provisions addressing the CAA NNSR requirements for ozone 
nonattainment areas classified as Marginal. The New Mexico submittal 
only addresses the 2015 8-hour ozone requirements for the portion of 
the El Paso-Las Cruces, TX-NM nonattainment area within the State of 
New Mexico. The State of Texas is responsible for the portions of Texas 
within the same nonattainment area; the EPA will evaluate any 
submissions from the State of Texas independent of the New Mexico 
submissions.

III. Proposed Action

    Pursuant to section 110 and part D of the Act, we are proposing to 
approve the

[[Page 51043]]

submitted revisions to the New Mexico SIP that update the NNSR 
permitting requirements to maintain consistency with the Federal NNSR 
program requirements and address the 2015 ozone NAAQS requirements for 
nonattainment permitting. Specifically, we are proposing to approve the 
following revisions to the New Mexico SIP adopted on July 21, 2021, 
effective August 21, 2021:
     Revisions to 20.2.79.5 NMAC--Effective Date,
     Revisions to 20.2.79.7 NMAC--Definitions,
     Revisions to 20.2.79.9 NMAC--Documents,
     Revisions to 20.2.79.109 NMAC--Applicability,
     Revisions to 20.2.79.115 NMAC--Emission Offsets,
     Revisions to 20.2.79.119 NMAC--Tables, and
     Revisions to 20.2.79.120 NMAC--Actuals Plantwide 
Applicability Limits (PALs).

IV. Environmental Justice Considerations

    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 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.'' \4\ The EPA is 
providing additional analysis of environmental justice associated with 
this action. We are doing so for the purpose of providing information 
to the public, not as a basis of our proposed action.
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    \4\ https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
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    When the EPA establishes a new or revised NAAQS, the CAA requires 
the EPA to designate all areas of the U.S. as either nonattainment, 
attainment, or unclassifiable. Consistent with Executive Order 12898, 
area designations address environmental justice concerns by ensuring 
that the public is properly informed about the air quality in an area. 
The EPA addressed environmental justice concerns related to our 
designation of the Sunland Park Area of Do[ntilde]a Ana County, New 
Mexico as marginal nonattainment in our June 4, 2018, final rule. If an 
area is designated nonattainment of the NAAQS, the CAA requires the 
state authority to establish a nonattainment permitting program that 
will assist the area in attaining the NAAQS.
    For this proposed action, the EPA conducted screening analyses 
using the EJScreen (Version 2.0) tool to provide additional information 
to the public regarding the environmental and demographic indicators 
within the Sunland Park Area of Do[ntilde]a Ana County, New Mexico in 
the El Paso-Las Cruces 2015 8-hour Ozone Nonattainment area. EJScreen 
is an environmental justice mapping and screening tool that provides 
the EPA with a nationally consistent dataset and approach for combining 
various environmental and demographic indicators.\5\ The EJScreen tool 
presents these indicators at a Census block group (CBG) level or a 
larger user-specified ``buffer'' area that covers multiple CBGs.\6\ An 
individual CBG is a cluster of contiguous blocks within the same census 
tract and generally contains between 600 and 3,000 people. EJScreen is 
not a tool for performing in-depth risk analysis, but is instead a 
screening tool that provides an initial representation of indicators 
related to environmental justice and is subject to uncertainty in some 
underlying data (e.g., some environmental indicators are based on 
monitoring data which are not uniformly available; others are based on 
self-reported data).\7\ We present EJScreen environmental indicators to 
help screen for locations where residents may experience a higher 
overall pollution burden than would be expected for a block group with 
the same total population. These indicators of overall pollution burden 
include estimates of ambient particulate matter (PM2.5) and 
ozone concentration, a score for traffic proximity and volume, 
percentage of pre-1960 housing units (lead paint indicator), and scores 
for proximity to Superfund sites, risk management plan (RMP) sites, and 
hazardous waste facilities.\8\ EJScreen also provides information on 
demographic indicators, including percent low-income, communities of 
color, linguistic isolation, and less than high school education.
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    \5\ The EJScreen tool is available at https://www.epa.gov/ejscreen.
    \6\ See https://www.census.gov/programs-surveys/geography/about/glossary.html.
    \7\ In addition, EJScreen relies on the five-year block group 
estimates from the U.S. Census American Community Survey. The 
advantage of using five-year over single-year estimates is increased 
statistical reliability of the data (i.e., lower sampling error), 
particularly for small geographic areas and population groups. For 
more information, see https://www.census.gov/content/dam/Census/library/publications/2020/acs/acs_general_handbook_2020.pdf.
    \8\ For additional information on environmental indicators and 
proximity scores in EJScreen, see ``EJSCREEN Environmental Justice 
Mapping and Screening Tool: EJSCREEN Technical Documentation,'' 
Chapter 3 and Appendix C (September 2019) at https://www.epa.gov/sites/default/files/2021-04/documents/ejscreen_technical_document.pdf.
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    On June 27, 2022, the EPA conducted a review of the EJScreen 
reports for the approximate 24 square miles contained in the portion of 
the ozone nonattainment area within Sunland Park, New Mexico. The 
complete report is available in the public docket for this action. The 
Environmental Justice Index for eight of the twelve EJScreen indicators 
exceed the 80th percentile in the United States; seven of the twelve 
EJScreen indicators exceed the 80th percentile in the State of New 
Mexico. Five of the twelve indicators exceed the 90th percentile in 
both the State of New Mexico and the United States, including indices 
for particulate matter 2.5, ozone, air toxics cancer risk, air toxics 
respiratory, and wastewater discharge. This analysis showed an 
approximate population of 13,051 residents based on the 2010 Census. 
Within this area, EJScreen identified that approximately 98% of the 
population are people of color with 71% identified as low income. 
Additionally, approximately 38% of the population is linguistically 
isolated and 40% of the population has less than a high school 
education.
    This proposed action addresses a revision to the New Mexico NNSR 
permitting program that will apply in the Sunland Park Area of 
Do[ntilde]a Ana County, New Mexico in the El Paso-Las Cruces 2015 8-
hour ozone nonattainment area. The New Mexico NNSR permitting program 
will require new major sources and major modifications at existing 
sources, that emit or have the potential to emit, at least 100 tons per 
year of NOX or VOC, to comply with LAER and obtain emission 
offsets in a ratio of 1.1 to 1; this should result in a reduction in 
overall emissions with the introduction of newly permitted major 
sources and major modifications and improve air

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quality in the area. Further, the State of New Mexico must provide 30-
day public notice for all proposed permitting actions for new major 
sources and major modifications going through NNSR permitting. The NMED 
provided public review and comment on the revisions to the New Mexico 
NNSR permitting program.\9\ The EPA is also providing a 30-day public 
comment period on our proposed approval of the submitted revisions to 
the New Mexico NNSR permitting program. For these reasons, this 
proposed action is not anticipated to have a disproportionately high or 
adverse human health or environmental effects on communities with 
environmental justice concerns.
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    \9\ The NMED proposed revisions to the New Mexico NNSR Program 
on April 20, 2021, with a public hearing held on June 25, 2021.
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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 the New Mexico regulations as described in the 
Section III of this preamble, Proposed Action. We have made, and will 
continue to make, these documents generally available electronically 
through https://www.regulations.gov (please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section of this 
preamble for more information).

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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: August 5, 2022.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2022-17384 Filed 8-18-22; 8:45 am]
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