[Federal Register Volume 88, Number 42 (Friday, March 3, 2023)]
[Rules and Regulations]
[Pages 13320-13322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03887]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2016-0676; FRL-10186-02-R6]


Air Plan Approval; 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, the Act), the 
Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the New Mexico 
Environment Department (NMED) on October 13, 2016. The revision was 
submitted in response to a finding of substantial inadequacy and SIP 
call as published by EPA on June 12, 2015, concerning excess emissions 
during periods of startup, shutdown, and malfunction (SSM) events. EPA 
is approving the SIP revision and finds that such revision corrects the 
inadequacies identified in New Mexico's SIP in the June 12, 2015 SIP 
call.

DATES: This rule is effective on April 3, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2016-0676. 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 
September 30, 2022 (87 FR 59373) proposal. In that document we proposed 
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. Specifically, we 
proposed to approve the removal of sections 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 also proposed to determine that

[[Page 13321]]

such SIP revision corrects the substantial inadequacies with the New 
Mexico identified in the June 12, 2015 SIP call.

II. Response to Comments

    The public comment period for our proposed approval and 
determination expired on October 30, 2022, and no adverse comments were 
received. We received one comment supporting removal of sections 
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. Therefore, we are finalizing 
our action as proposed.

III. Final Action

    The EPA is approving 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. Specifically, 
we are approving the removal of sections 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 approving these revisions in accordance with 
section 110 of the Act. EPA is also determining that such SIP revision 
corrects the deficiencies in New Mexico's SIP identified in the June 
12, 2015 SIP call.

IV. Environmental Justice Considerations

    As stated in the proposal and for informational purposes only, EPA 
provided additional information regarding this action and potentially 
impacted populations. 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.'' \1\
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    \1\ 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 September 30, 2022 proposal (87 FR 59373). As 
discussed in the proposal, this action is intended to ensure that all 
communities and populations across New Mexico, 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. There is nothing in the 
record which would indicate that this action will 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 certain 
sections of the ``20.2.7 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 New Mexico 
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 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 September 29, 2022) on our proposed rulemaking to tribal 
governments that may be affected by this action. We received no 
requests for formal 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).

[[Page 13322]]

    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 May 2, 2023. 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: January 30, 2023.
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

0
2. In Sec.  52.1620(c), the first table titled ``EPA Approved New 
Mexico Regulations'' is amended by revising the entry for ``Part 7'' to 
read as follows:


Sec.  52.1620  Identification of plan.

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    (c) * * *

                                       EPA Approved New Mexico Regulations
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                                   State approval/ effective     EPA approval
State citation   Title/ subject               date                   date                    Comments
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          New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 2--Air Quality
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                                                  * * * * * * *
Part 7........  Excess Emissions        7/10/2008, 10/13/2016  9/14/2009, 74 FR  Sections 20.2.7.111 NMAC,
                                                                46910, 3/3/2023   20.2.7.112 NMAC, 20.2.7.113
                                                                [Insert Federal   NMAC, 20.2.7.6(B) NMAC,
                                                                Register          20.2.7.110(B)(15) NMAC,
                                                                citation].        20.2.7.115 NMAC, and
                                                                                  20.2.7.116 NMAC are no longer
                                                                                  in SIP, 3/3/2023.
 
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[FR Doc. 2023-03887 Filed 3-2-23; 8:45 am]
BILLING CODE 6560-50-P