[Federal Register Volume 87, Number 189 (Friday, September 30, 2022)]
[Proposed Rules]
[Pages 59373-59376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21246]



[[Page 59373]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2016-0676; FRL-10186-01-R6]


Air Plan Approval; 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 13, 2016. The submittal is in 
response to 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 approve the 
SIP revision and proposing to determine that such SIP revision corrects 
the deficiency identified in the June 12, 2015 SIP call.

DATES: Comments must be received on or before October 31, 2022.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2016-0676 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. 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 SIP Action
    B. New Mexico's Part 7 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 SIP Action

    On February 22, 2013, EPA issued a Federal Register notice of 
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 EPA determined to be inconsistent with the 
CAA, 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 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, including New 
Mexico, were required to submit corrective revisions to their SIPs in 
response to the SIP calls by November 22, 2016.
    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

[[Page 59374]]

had no direct impact on the SIP call issued to New Mexico in 2015. The 
2020 Memorandum did, however, indicate EPA's intent at the time to 
review SIP calls that were issued in the 2015 SSM SIP Action to 
determine whether EPA should maintain, modify, or 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 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 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 7 Excess Emissions

    New Mexico Administrative Code (NMAC), Title 20 Environmental 
Protection, Chapter 2 Air Quality (Statewide), Part 7 Excess Emissions 
(20.2.7 NMAC) was approved by EPA into the New Mexico SIP on September 
14, 2009 (74 FR 46910) and became federally effective on November 13, 
2009.
    As a part of EPA's 2015 SSM SIP Action, EPA made a finding that 
certain provisions in Part 7--namely, 20.2.7.111 NMAC, 20.2.7.112 NMAC, 
and 20.2.7.113 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, 
removal of 20.2.7.111 NMAC, 20.2.7.112 NMAC, and 20.2.7.113 NMAC from 
the New Mexico SIP would render 20.2.7.6(B) NMAC, 20.2.7.110(B)(15) 
NMAC, 20.2.7.115 NMAC, and 20.2.7.116 NMAC no longer operative or 
problematic for SIP compliance purposes because they refer to or cross-
reference the substantially inadequate provisions of 20.2.7 NMAC.\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, removal of 20.2.7.111 NMAC, 20.2.7.112 
NMAC, and 20.2.7.113 NMAC from the SIP will render 20.2.7.6(B) 
(concerning establishing criteria to claim an affirmative defense); 
20.2.7.110(B)(15) (concerning extension of notification report 
deadline upon receipt of written request from the owner or 
operator); 20.2.7.115 NMAC (concerning review of the department's 
determinations under sections 111, 112, and 113); and 20.2.7.116 
NMAC (concerning future enforcement action) no longer operative or 
problematic for SIP compliance purposes as they are interrelated and 
refer to or cross-reference the substantially inadequate provisions 
of Part 7--being proposed for removal from the SIP in response to 
June 12, 2015 SIP call Action--and EPA concurs with the State action 
and recommends that these provisions be removed from the SIP as 
well.
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II. Analysis of SIP Submission

    In response to EPA's June 12, 2015 SIP call, NMED requested by 
letter dated October 13, 2016,\8\ that EPA approve removal of 
20.2.7.111 NMAC, 20.2.7.112 NMAC and 20.2.7.113 NMAC found by EPA's 
June 12, 2015 SIP call to be substantially inadequate to meet CAA 
requirements. The removal of these provisions from the New Mexico SIP 
eliminates the affirmative defense provisions identified in the June 
12, 2015 SIP call. In addition, NMED requested that 20.2.7.6(B) NMAC, 
20.2.7.110(B)(15) NMAC, 20.2.7.115 NMAC, and 20.2.7.116 NMAC be removed 
from the New Mexico SIP as well. EPA believes that removal of these 
seven provisions from the New Mexico SIP will not affect the adequacy 
of the remaining portions of the New Mexico SIP.
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    \8\ Attachment A, October 13, 2016, submittal letter from NMED 
Cabinet Secretary to EPA Region 6 Regional Administrator.
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    Although certain provisions of Part 7 (20.2.7.111 NMAC, 20.2.7.112 
NMAC, 20.2.7.113 NMAC, 20.2.7.6(B) NMAC, 20.2.7.110(B)(15) NMAC, 
20.2.7.115 NMAC, and 20.2.7.116 NMAC) are being proposed for removal 
from the EPA-approved New Mexico SIP, NMED intends to retain Part 7 in 
its entirety as a matter of state law, outside of the SIP, as a 
``state-only'' rule. It is EPA's position that the ``state-only'' 
measure will apply only to the state's own enforcement personnel and 
not to EPA or to others.\9\ Since these provisions are only applicable 
to the State air agency, EPA's view is that the provisions need not be 
included within the SIP. Thus, EPA does not object to states or local 
air agencies that elect to revise their SIPs ``to remove these 
provisions to avoid any unnecessary confusion.'' \10\
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    \9\ June 12, 2015 (80 FR 33958).
    \10\ June 12, 2015 (80 FR 33958).
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    The submittal also includes an analysis to demonstrate compliance 
with section 110(l) of the Act.\11\ Elimination of the above-mentioned 
provisions of Part 7 from the New Mexico SIP is not expected to lead to 
any emissions increase. We do not believe the proposed revisions would 
interfere with attainment and reasonable further progress, or any 
applicable requirement of the CAA. Thus, we find that EPA's approval 
would be consistent with section 110(l). Consequently, we are proposing 
to approve the removal of the above-referenced provisions of Part 7 
Excess Emissions from the New Mexico SIP. 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; 
however, in light of Oklahoma Dept. of Environmental Quality v. EPA, 
740 F.3d 185 (D.C. Cir. 2014), the SIP applies to non-reservation 
Indian allotments within the State.
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    \11\ Pages 11-14 of the SIP submittal, Docket ID No. EPA-R06-
OAR-2016-0676.
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III. Proposed Action

    EPA is proposing to approve a revision to the New Mexico SIP 
submitted on October 13, 2016, in response to 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 
20.2.7.111 NMAC, 20.2.7.112 NMAC, 20.2.7.113 NMAC, 20.2.7.6(B) NMAC, 
20.2.7.110(B)(15) NMAC, 20.2.7.115 NMAC, and 20.2.7.116 NMAC of Part 7 
Excess Emissions from 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 revisions correct the 
deficiencies identified in the June 12, 2015 SIP call with respect to 
the New Mexico SIP. EPA is not reopening the 2015 SSM SIP Action and is 
only taking comment on whether the proposed SIP revisions are 
consistent with CAA requirements and whether they addresses the 
substantial inadequacy in the specific 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

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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. 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.'' 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.'' \12\ 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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    \12\ 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 New 
Mexico.\13\ 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 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 (64.1 percent versus 31.7 percent). The percent of the 
state population that is Hispanic or Latino is higher than the national 
averages (50.1 percent versus 18.9 percent) and the percent of the 
population that is American Indian/Alaska Native is also higher than 
the national average (11.2 percent versus 1.3 percent). The percent of 
people living below the poverty level in New Mexico is higher than the 
national average (16.8 percent versus 11.4 percent). The percent of 
people in New Mexico over age 25 with a high school diploma is lower 
than the national average (86.5 percent versus 88.5 percent), and the 
percent with a Bachelor's degree or higher is also slightly lower than 
the national average (28.1 percent versus 32.9 percent).
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    \13\ https://www.census.gov/quickfacts/NM?.
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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 periods of 
SSM can be considerably higher than emissions under normal steady-state 
operations.
    As to all population groups within the State of New Mexico, we 
believe that this proposed action will be beneficial and may reduce 
impacts as explained below. 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 all counties in the 
State, except 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 SSM events. Removal of such impermissible 
affirmative defense provisions from the SIP is necessary to preserve 
the enforcement structure of the CAA, the jurisdiction of courts to 
adjudicate questions of liability and remedies in judicial enforcement 
actions, and 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 overburdened communities and affected populations across the State 
and downwind areas receive the full human health and environmental 
protection provided by the CAA. 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 remove 
20.2.7.111 NMAC, 20.2.7.112 NMAC, 20.2.7.113 NMAC, 20.2.7.6(B) NMAC, 
20.2.7.110(B)(15) NMAC, 20.2.7.115 NMAC, and 20.2.7.116 NMAC of Part 7 
Excess Emissions from the New Mexico SIP, as described in the Proposed 
Action section above. 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 Indian 
country, the proposed rule does not have tribal implications and will 
not impose substantial direct costs on tribal

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governments or preempt tribal law as specified by Executive Order 13175 
(65 FR 67249, November 9, 2000). However, in light of Oklahoma Dept. of 
Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014), this 
proposed rule, if finalized as proposed, will apply to non-reservation 
Indian allotments within the state and, therefore, has tribal 
implications as specified in E.O. 13175. This action will neither 
impose substantial direct compliance costs on federally recognized 
tribal governments, nor preempt tribal law. This action will not impose 
substantial direct compliance costs on federally recognized tribal 
governments because no actions will be required of tribal governments. 
This action will also not preempt tribal law as no tribe in New Mexico 
implements a Tribal Implementation Program under the CAA. Consistent 
with the EPA Policy on Consultation and Coordination with Indian Tribes 
(May 4, 2011), EPA has offered consultation to tribal governments that 
may be affected by this action.

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: September 26, 2022.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2022-21246 Filed 9-29-22; 8:45 am]
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