[Federal Register Volume 87, Number 166 (Monday, August 29, 2022)]
[Rules and Regulations]
[Pages 52690-52691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18534]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2016-0673; FRL-9878-02-R6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision from the New Mexico Environment 
Department (NMED) submitted on October 17, 2016, on behalf of the 
Albuquerque-Bernalillo County Air Quality Control Board (Air Board). 
The 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). EPA is approving the SIP submittal and finds 
that the SIP revision corrects the substantial inadequacies identified 
in the June 12, 2015, SIP call.

DATES: This rule is effective on September 28, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2016-0673. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet. Publicly available docket 
materials are available electronically through https://www.regulations.gov.

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. 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.

I. Background

    The background for this action is discussed in detail in our June 
13, 2022 (87 FR 35701) proposal. In that document, we proposed to 
approve the removal of Part 49 Excess Emissions from the Albuquerque-
Bernalillo County provisions of the New Mexico SIP. We also proposed to 
determine that such SIP revision corrects the substantial inadequacies 
identified in the June 12, 2015 SIP call.

II. Response to Comments

    The public comment period for our proposed approval and 
determination ended on July 13, 2022, and no adverse comments were 
received. We received one comment supporting the action and urged EPA 
to take action on a separate SIP submittal concerning 20.2.7 NMAC 
Excess Emissions of the New Mexico SIP.
    We acknowledge the support for our proposal and note that while 
20.2.7 NMAC (Part 7 Excess Emissions) of the New Mexico SIP was not the 
subject of our June 13, 2022 (87 FR 35701) proposal, the EPA intends to 
fulfill its obligations under the terms of a consent decree for taking 
action on the New Mexico SIP submittal concerning 20.2.7 NMAC.\1\ As no 
concerns were raised in public comment, we are finalizing our action as 
proposed.
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    \1\ See Consent Decree resolving Sierra Club et al. v. Regan 
(Case No. 4:21-CV-6956-SBA, N.D. Calif.).
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III. Final Action

    The EPA is approving 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 
approving the removal of Part 49 Excess Emissions from the Albuquerque-
Bernalillo County provisions of the New Mexico SIP. We are approving 
these revisions in accordance with section 110 of the Act. EPA is also 
determining that the SIP revision corrects the inadequacies identified 
in the June 12, 2015 SIP call.

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 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

[[Page 52691]]

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.'' \2\
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    \2\ https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
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    EPA provided additional analysis of environmental justice 
associated with this action for the purpose of providing information to 
the public in our June 13, 2022 (87 FR 35701) proposal. As discussed in 
the proposed action, 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 determine 
that this rule will not have disproportionately high or adverse human 
health or environmental effects on communities with environmental 
justice concerns.

V. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is removing the incorporation by reference of the 
``20.11.49 NMAC'' in 40 CFR 52.1620, as described in the Final Action 
above. The EPA has made, and will continue to make, these materials 
generally available through www.regulations.gov (please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information). Therefore, these materials have 
been approved by EPA for removal from the SIP, have been removed from 
incorporation by reference by EPA into that plan, are no longer 
federally enforceable under sections 110 and 113 of the CAA as of the 
effective date of the final rulemaking of the EPA's approval, and 
incorporation by reference will be removed in the next update to the 
SIP compilation.

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 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);
    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 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). 
Consistent with the EPA Policy on Consultation and Coordination with 
Indian Tribes (May 4, 2011), the EPA offered consultation (by letter 
dated June 6, 2022) on our proposed rulemaking to tribal governments 
that may be affected by this action. We received no requests for tribal 
consultation.
    This action is subject to the Congressional Review Act, and the EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 28, 2022. 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 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: August 23, 2022.
Earthea Nance,
Regional Administrator, Region 6.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR part 52 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


Sec.  52.1620  [Amended]

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2. Amend Sec.  52.1620(c) in the second table titled ``EPA Approved 
Albuquerque/Bernalillo County, NM Regulations'' by removing the entry 
for ``Part 49 (20.11.49 NMAC)''.

[FR Doc. 2022-18534 Filed 8-26-22; 8:45 am]
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