Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport for the 2012 Fine Particulate Matter National Ambient Air Quality Standard and Revised Statutes, 60933-60939 [2017-27296]
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Federal Register / Vol. 82, No. 246 / Tuesday, December 26, 2017 / Proposed Rules
36.406(b), there are currently no specific
provisions in the ADA regulations that
include standards governing the
accessibility of equipment and furniture
that are not fixed. The Department has
not published any rulemaking
document regarding non-fixed
equipment and furniture since the 2010
ANPRM.
The Department is reevaluating
whether regulation of the accessibility
of non-fixed equipment and furniture is
necessary and appropriate. Accordingly,
the Department is withdrawing the
previously announced ANPRM entitled
‘‘Nondiscrimination on the Basis of
Disability by State and Local
Governments and Places of Public
Accommodation; Equipment and
Furniture’’ (RIN 1190–AA64) (75 FR
43452).
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C. Next Generation 9–1–1
On July 26, 2010, the Department
published an ANPRM announcing the
Department’s intention to consider a
rule to revise the ADA title II regulation
to address how Public Safety Answering
Points, which provide 9–1–1 services at
the local level, can shift from analog
telecommunications technology to new
internet-Protocol-enabled Next
Generation 9–1–1 (NG 9–1–1) services
that will provide voice and data (such
as text, pictures, and video) capabilities.
75 FR 43446. The Department has not
published any rulemaking document
regarding NG 9–1–1 since the 2010
ANPRM.
The Department is evaluating how
best to address the accessibility of NG
9–1–1 services in light of changing
circumstances. With the increased
adoption of NG 9–1–1, the Department
is evaluating whether regulatory action
is necessary and appropriate to promote
the increased availability of text to 9–1–
1 services to improve access for people
with communication disabilities.
Accordingly, the Department is
withdrawing the previously announced
ANPRM entitled ‘‘Nondiscrimination on
the Basis of Disability in State and Local
Government Services; Accessibility of
Next Generation 9–1–1’’ (RIN 1190–
AA62) (75 FR 43446).
Conclusion
In consideration of the foregoing, the
Department announces the withdrawal
of the four above-named ANPRMs. Such
ANPRMs had no force or effect of law,
and no party should rely upon them as
presenting the Department of Justice’s
position on these issues. This
notification does not preclude the
Department from issuing other
documents on these subjects in the
future or commit the Department to any
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future course of action, nor does it
constitute an interpretation of existing
law. Should the Department decide to
undertake rulemaking in the future, the
Department will publish new
rulemaking actions and provide new
opportunities for public comment.
Furthermore, this notification only
addresses the specific ANPRMs
identified in this document, and does
not address any other pending proposals
that the Department has issued or is
considering.
Dated: December 15, 2017.
John M. Gore,
Acting Assistant Attorney General, Civil
Rights Division.
[FR Doc. 2017–27510 Filed 12–22–17; 8:45 am]
BILLING CODE 4410–13–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2015–0850; FRL–9971–
17—Region 6]
Approval and Promulgation of Air
Quality Implementation Plans; New
Mexico; Infrastructure and Interstate
Transport for the 2012 Fine Particulate
Matter National Ambient Air Quality
Standard and Revised Statutes
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
State Implementation Plan (SIP)
revisions submitted by the State of New
Mexico to address the requirements of
section 110(a)(1) and (2) of the Clean Air
Act (CAA or Act) for 2012 fine
particulate matter (PM2.5) National
Ambient Air Quality Standard
(NAAQS). The revisions address how
the existing SIP provides for
implementation, maintenance, and
enforcement of PM2.5 (infrastructure SIP
or i-SIP). Under CAA sections 110(a)(1)
and 110(a)(2), each state is required to
submit a SIP that provides for the
implementation, maintenance, and
enforcement of a revised primary or
secondary NAAQS. CAA section
110(a)(1) and (2) require each state to
make a new SIP submission within
three years after EPA promulgates a new
or revised NAAQS for approval into the
existing SIP to assure that the SIP meets
the applicable requirements for such
new and revised NAAQS. This type of
SIP submission is commonly referred to
as an ‘‘infrastructure SIP or ‘‘i-SIP.’’ We
propose approval of this action under
SUMMARY:
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60933
Section 110 of the Act. EPA is also
proposing to approve a SIP revision to
update the New Mexico statutes
incorporated into the SIP.
DATES: Written comments must be
received on or before January 25, 2018.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
OAR–2015–0850, at https://
www.regulations.gov or via email to
fuerst.sherry@epa.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 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 Sherry Fuerst, (214) 665–6454,
fuerst.sherry@epa.gov. For the full EPA
public comment policy, information
about CBI or multimedia submissions,
and general guidance on making
effective comments, please visit https://
www2.epa.gov/dockets/commentingepa-dockets.
Docket: The index to the docket for
this action is available electronically at
www.regulations.gov and in hard copy
at EPA Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas. 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:
Sherry Fuerst, (214) 665–6454,
fuerst.sherry@epa.gov. To inspect the
hard copy materials, please schedule an
appointment with her or Bill Deese at
(214) 665–7253.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
or ‘‘our’’ mean EPA.
I. Background
On December 14, 2012 we
promulgated a revised primary annual
PM2.5 NAAQS of 12.0 mg/m3 (78 FR
3085, January 15,2013), and we retained
the primary 24-hour PM2.5 standard of
35 mg/m3 and the secondary standards.
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Primary standards are set to protect
human health while secondary
standards are set to protect public
welfare.
Pursuant to section 110(a)(1) of the
CAA, states are required to submit an iSIP within three years after the
promulgation of a new or revised
NAAQS. Section 110(a)(2) of the CAA
includes a list of specific elements the
i-SIP must include to adequately
address such new or revised NAAQS as
applicable. EPA issued guidance
addressing the i-SIP elements for
NAAQS.1 The New Mexico
Environment (NMED) and AlbuquerqueBernalillo County each provided
demonstrations of how the existing New
Mexico SIP meets the applicable
110(a)(2) requirements for the 2012
PM2.5 NAAQS on August 6, 2015 and
December 8, 2015, respectively. Our
technical evaluation of these submittals
is provided in the Technical Support
Document (TSD), which is in the
rulemaking.2
Additionally, NMED provided
updated statutes for the SIP. Sections
110(a)(2)(E)(ii) and 128 of the CAA
require SIPs to contain statutory or
regulatory provisions that: (1) Any
board or body which approves permits
or enforcement orders under the CAA
have at least a majority of its members
represent the public interest and not
derive any significant portion of their
income from persons subject to permits
or enforcement orders under the CAA;
and (2) any potential conflict of interest
by members of such board or body or
the head of an executive agency with
similar powers be adequately disclosed.
II. EPA’s Evaluation of New Mexico’s
and Albuquerque-Bernalillo County’s
NAAQS Infrastructure Submissions
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The State’s submissions on August 6,
2015 and December 8, 2015,
demonstrate how the existing New
Mexico SIP meets the infrastructure
requirements for the 2012 PM2.5
NAAQS. A detailed discussion of our
evaluation can be found in the
Technical Support Document TSD for
this action. The TSD can be accessed
through www.regulations.gov (e-docket
EPA–R06–OAR–2015–0850). Below is a
summary of EPA’s evaluation of the
New Mexico i-SIP and Albuquerque1 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act sections 110(a)(1) and 110(a)(2),’’
Memorandum from Stephen D. Page, September 13,
2013.
2 A detailed discussion of our evaluation can be
found in the TSD for this action. The TSD can be
accessed through www.regulations.gov (e-docket
EPA–R06–OAR–2015–0850).
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Bernalillo County i-SIP for each
applicable element of 110(a)(2) A–M.
(A) Emission limits and other control
measures: The CAA § 110(a)(2)(A)
requires the SIP to include enforceable
emission limits and other control
measures, means or techniques
(including economic incentives such as
fees, marketable permits, and auctions
of emissions rights), as well as
schedules and timetables for
compliance, as may be necessary or
appropriate to meet the applicable
requirements of the Act and other
related matters as needed to implement,
maintain and enforce each of the
NAAQS.3 The New Mexico
Environmental Improvement Act (EIA),
codified in Chapter 74, Article 1 of the
New Mexico Statutes Annotated 1978
(NMSA), created the New Mexico
Environment Department (NMED) and
the New Mexico Environmental
Improvement Board (EIB). Statutory
authority for Albuquerque-Bernalillo
County’s air quality program, codified
in Chapter 74 EIA, Article 2, Air
Pollution, of the New Mexico statutes,
gives the Air Board and Albuquerque
Environmental Health Department’s Air
Quality Program (AQP) the authority to
implement the CAA in AlbuquerqueBernalillo County, New Mexico. NMED
has jurisdiction over all of New Mexico
except for Albuquerque-Bernalillo
County. We will distinguish between
these two authorities by referring to
them as NMED, EIB or the State for
everywhere outside of AlbuquerqueBernalillo County and as AQP or the Air
Board as everything pertaining to within
Bernalillo County.
The New Mexico Air Quality Control
Act (AQCA) codified at NMSA 1978,
Subpart 74–2 et seq., delegates authority
to the EIB to adopt, promulgate, publish,
amend and repeal regulations consistent
with the AQCA to attain and maintain
the NAAQS and prevent or abate air
pollution. The AQCA also designates
the NMED as the State’s air pollution
control agency and the EIA provides
NMED with enforcement authority
everywhere within the State of New
Mexico excluding AlbuquerqueBernalillo County. Chapter 2 Title 20 of
3 The specific nonattainment area plan
requirements of CAA section 110(a)(2)(I) are subject
to the timing requirements of CAA section 172, not
the timing requirement of CAA section 110(a)(1).
Thus, CAA section 110(a)(2)(A) does not require
that states submit regulations or emissions limits
specifically for attaining the 2012 PM2.5 NAAQS.
Those SIP provisions are due as part of each state’s
attainment plan, and will be addressed separately
from the requirements of CAA section 110(a)(2)(A).
In the context of an infrastructure SIP, EPA is not
evaluating the existing SIP provisions for this
purpose. Instead, EPA is only evaluating whether
the state’s SIP has basic structural provisions for the
implementation of the NAAQS.
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the New Mexico Administrative Code
(NMAC) establishes NMED as the State’s
air pollution control agency (within the
State of New Mexico excluding
Albuquerque-Bernalillo County) and
establishes its enforcement authority,
referencing the NMSA 1978 (44
FR21019, April 9, 1979; revised 49 FR
44101, November 2, 1984; recodification
approved in 62 FR 50518, September 26,
1997, approving various statutory and
regulatory provisions in New Mexico’s
SIP). This authority has been employed
to adopt and submit multiple revisions
to the New Mexico SIP.
With regard to AlbuquerqueBernalillo County, enforceable emission
limitations and other control measures
are authorized by the New Mexico
AQCA which established the Air Board
and those provisions of NMAC Title 20,
Environmental Protection, Chapter 11,
Albuquerque-Bernalillo County Air
Quality Control Board. It can adopt
emission standards and compliance
schedules applicable to regulated
entities; emission standards and
limitations and any other measures
necessary for attainment and
maintenance of national standards; and,
enforce applicable laws, regulations,
standards and compliance schedules,
and seek injunctive relief within the
boundaries of Bernalillo County. This
authority has been employed to adopt
and submit multiple revisions to the
Albuquerque-Bernalillo County, New
Mexico SIP. The approved SIP for the
State of New Mexico, including
Albuquerque-Bernalillo County is
documented at 40 CFR part 52.1620,
Subpart GG.4 EPA is therefore proposing
to find that the New Mexico SIP meets
the requirements of section 110(a)(2)(A)
of the Act with respect to 2012 PM2.5.
(B) Ambient air quality monitoring/
data system: Section 110(a)(2)(B) of the
CAA requires SIPs to include provisions
for establishment and operation of
ambient air quality monitors, collecting
and analyzing ambient air quality data,
and making these data available to EPA
upon request.
The AQCA provides the authority
allowing EIB, NMED and AQP to collect
air monitoring data, quality-assure the
results, and report the data (NMSA
1978, 74–2–5.1(B). New Mexico and
AQP each maintain and operate PM2.5
networks to measure ambient levels. All
monitoring data is measured using EPA
approved methods and subject to the
EPA quality assurance requirements.
NMED and AQP submit all required
4 https://www.ecfr.gov/cgi-bin/retrieveECFR
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sp40.4.52.gg.
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data to EPA, following the EPA rules.
These networks have been approved
into the SIP (46 FR 4005, August 6,
1981) and they undergo recurrent
annual review by EPA.5 In addition,
NMED and AQP conduct recurrent
assessments of their monitoring
networks every five years, which
includes an evaluation of ambient
monitoring for PM2.5, as required by
EPA rules. The most recent of these 5year monitoring network assessments
were conducted by NMED and AQP in
2015 and EPA reviewed and commented
on these reviews. The comment letter is
in the docket.6 The NMED and AQP
websites provide the monitor locations
and posts past and current
concentrations of criteria pollutants
measured in these network of monitors.7
In summary, New Mexico and
Albuquerque-Bernalillo County meet
the requirement to establish, operate,
and maintain an ambient air monitoring
network; collect and analyze the
monitoring data; and make the data
available to EPA upon request. EPA is
proposing to find that the current New
Mexico SIP meets the requirements of
section 110(a)(2)(B) with respect to 2012
PM2.5.
(C) Program for enforcement of
control measures: The CAA
§ 110(a)(2)(C) requires SIPs include the
following three elements: (1) A program
providing for enforcement of the
measures in paragraph A above; (2) a
program for the regulation of the
modification and construction of
stationary sources as necessary to
protect the applicable NAAQS (i.e.,
state-wide permitting of minor sources);
and (3) a permit program to meet the
major source permitting requirements of
the CAA (for areas designated as
attainment or unclassifiable for the
NAAQS in question).8
(1) Enforcement of SIP Measures. As
noted in (A), the AQCA provides
authority for the EIB, NMED and AQP
to enforce the requirements of the
AQCA within Albuquerque-Bernalillo
County and New Mexico, and any
regulations, permits or final compliance
orders. Its statutes also provide the EIB,
NMED and AQP with general
enforcement powers. Among other
things, they can file lawsuits to compel
5 A copy of the 2016 Annual Air Monitoring
Network Plan and EPA’s approval letter are
included in the docket for this proposed
rulemaking.
6 A copy of the 2015 5-year ambient monitoring
network assessment and EPA’s approval letter are
included in the docket for this proposed
rulemaking.
7 See https://www.env.nm.gov/aqb/monitor/
airmonitoringnetwork.html.
8 As discussed in further detail in the TSD.
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compliance with statutes and
regulations; commence civil actions;
issue field citations, conduct
investigations of regulated entities;
collect criminal and civil penalties;
develop and enforce rules and standards
related to protection of air quality; issue
compliance orders; pursue criminal
prosecutions; investigate, enter into
remediation agreements; and issue
emergency cease and desist orders. The
AQAC also provides additional
enforcement authorities and funding
mechanisms. (NMSA 1978, sections 74–
2–12, 74–2–2, and 74–1–6.F.
(2) Minor New Source Review. Section
110(a)(2)(C) also requires that the SIP
include measures to regulate
construction and modification of
stationary sources to protect the
NAAQS. Both the New Mexico (78 FR
15296, March 11, 2013) and
Albuquerque-Bernalillo County (69 FR
78312, December 30, 2004) minor NSR
permitting requirements are approved as
part of the SIP.9
(3) Prevention of Significant
Deterioration (PSD) permit program.
Both Albuquerque-Bernalillo County (80
FR 52401, August 31, 2015) and New
Mexico (78 FR 15296, March 11, 2013)
PSD program portions of the SIP cover
all NSR regulated pollutants as well as
the requirements for the 2012 PM2.5
NAAQS and have been approved into
the SIP by EPA.10
(D) Interstate and international
transport: Under CAA section
110(a)(2)(D)(i), there are four
requirements the SIP must include
relating to interstate transport. The first
two of the four requirements are
outlined in CAA section
110(a)(2)(D)(i)(I) and require that the SIP
contain adequate provisions prohibiting
emissions to other states which will (1)
contribute significantly to
nonattainment of the NAAQS, and (2)
interfere with maintenance of the
NAAQS. The third and fourth
requirements are outlined in CAA
section 110(a)(2)(D)(i)(II) and require
that the SIP contain adequate provisions
prohibiting emissions to other states
9 EPA is not proposing to approve or disapprove
the existing New Mexico or Albuquerque-Bernalillo
County minor NSR programs to the extent that it
may be inconsistent with EPA’s regulations
governing this program. EPA has maintained that
the CAA does not require that new infrastructure
SIP submissions correct any defects in existing
EPA-approved provisions of minor NSR programs
in order for EPA to approve the infrastructure SIP
for element C (e.g., 76 FR 41076–41079, July 13
2011). EPA believes that a number of states may
have minor NSR provisions that are contrary to the
existing EPA regulations for this program. The
statutory requirements of CAA section 110(a)(2)(C)
provide for considerable flexibility in designing
minor NSR programs.
10 As discussed further in the TSD.
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60935
which will (1) interfere with measures
required to prevent significant
deterioration or (2) interfere with
measures to protect visibility.
Both SIP revision submittals included
the same attachment with the evaluation
of CAA section 110(a)(2)(D)(i)(I). This
evaluation considered the following
factors:
• An analysis of the most recent
annual PM2.5 design values to determine
which areas near New Mexico violate,
or are close to violating the 2012 annual
PM2.5 NAAQS;
• An analysis of the PM2.5 annual
design value trends in New Mexico
(including Bernalillo County) to
determine if the PM2.5 concentrations in
New Mexico are increasing or
decreasing; and,
• An investigation of PM2.5 annual
design value trends in other states to
determine whether PM2.5 concentrations
in those areas are increasing or
decreasing.
This evaluation concluded that New
Mexico did not significantly contribute
to nonattainment or interfere with
maintenance of the PM2.5 NAAQS in
other states.
On March 17, 2016 EPA issued a
memo providing information on the
development and review of SIPs that
address CAA section 110(a)(2)(D)(i) for
the 2012 PM2.5.11 We used the
information in the memo and additional
supplemental information for our
evaluation and came to the same
conclusion as the state. In our
evaluation, potential downwind
nonattainment and maintenance
receptors were identified. These
potential receptors were evaluated to
determine if New Mexico emissions
could possibly contribute to the
attainment challenges. After reviewing
air quality reports, modeling reports,
designation letters, designation
technical support documents,
attainment plans and other reports for
these areas, EPA is proposing to approve
the SIP revisions as meeting the CAA
section 110(a)(2)(i)(I) requirement that
New Mexico (including AlbuquerqueBernalillo County) emissions will not
interfere with maintenance or contribute
significantly to nonattainment of the
2012 PM2.5 NAAQS for any other state.
With regard to CAA section
110(a)(2)(D)(i)(II), both New Mexico and
Albuquerque-Bernalillo County state
that as noted in Element C above, they
each have a comprehensive EPAapproved PSD and regional haze
11 March 17, 2016 information memo
‘‘Information on the Interstate Transport ‘‘Good
Neighbor’’ Provision for the 2012 Fine Particulate
Matter National Ambient Air Quality Standards
under Clean Air Act Section 110(a)(2)(D)(i)(I).’’
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programs. As we have approved both
New Mexico and AlbuquerqueBernalillo County comprehensive PSD
programs (80 FR 40915, July 14, 2015
and 80 FR 52402, August 31, 2015,
respectively) and regional haze plans
(79 FR 60992, October 9, 2014, 77 FR
71119, November 29, 2012,
respectively), we propose to approve the
revisions pertaining to CAA section
110(a)(2)(D)(i)(II). A more detailed
evaluation of how the SIP revisions
meet the requirements of CAA section
110(a)(2)(D)(i) may be found in the TSD.
CAA section 110(a)(2)(D)(ii) requires
that the SIP contain adequate provisions
insuring compliance with the applicable
requirements of sections 126 (relating to
interstate pollution abatement) and 115
(relating to international pollution
abatement). As stated in their
submittals, New Mexico and
Albuquerque-Bernalillo County meet
the section 126 requirements as (1) they
have fully approved PSD SIPs
(Albuquerque-Bernalillo County 80 FR
52401, August 31, 2015 and New
Mexico 78 FR 15296, March 11, 2013)
which include notification to
neighboring air agencies of potential
impacts from each new or modified
major source and (2) no source or
sources have been identified by the EPA
as having any interstate impacts under
section 126 in any pending action
related to any air pollutant. New Mexico
and Albuquerque-Bernalillo County
meet section 115 requirements as there
are no findings by EPA that New Mexico
or Albuquerque-Bernalillo County air
emissions affect other countries.
Therefore, we propose to approve the
submitted revisions pertaining to CAA
section 110(a)(2)(D)(ii).
(E) Adequate authority, resources,
implementation, and oversight: CAA
110(a)(2)(E) requires that the SIP
provide for the following: (1) Necessary
assurances that the state (and other
entities within the state responsible for
implementing the SIP) will have
adequate personnel, funding, and
authority under state or local law to
implement the SIP, and that there are no
legal impediments to such
implementation; (2) Compliance with
requirements relating to state boards as
required under section 128 of the CAA;
and (3) necessary assurances that the
state has responsibility for ensuring
adequate implementation of any plan
provision for which it relies on local
governments or other entities to carry
out that portion of the plan. Both
elements (A) and (E) address the
requirement that there is adequate
authority to implement and enforce the
SIP and that there are no legal
impediments.
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The i-SIP submissions for the 2012
PM2.5 NAAQS describe the SIP
regulations governing the various
functions of personnel within the EIB,
NMEQ, AQP and the Air Board,
including the administrative, technical
support, planning, enforcement, and
permitting functions of the program.
(NMSA 1978, sections 9–7A–6(B)(4), 9–
7A–11A, 74–2–5.1(F) and 74–2–5.2).
With respect to funding, the AQCA
requires NMED to establish an
emissions fee schedule for sources in
order to fund the reasonable costs of
administering various air pollution
control programs and authorizes NMED
to collect additional fees necessary to
cover reasonable costs associated with
processing of air permit applications
(NMSA 1978, sections 9–7A–6(B)(4), 9–
7A–11A, 74–2–5.1.(F) and 74–2–5.2).
EPA conducts periodic program reviews
to ensure that the state has adequate
resources and funding to among other
things implement and enforce the SIP.
With respect to funding for AQP and the
Air Board, the resources to carry out the
plan are provided through General
Funds, Permit Fees and the CAA grant
process. Permit Fees are collected under
the authority of NMSA 1978 section 74–
2–7.
As required by § 110(a)(2)(E)(ii) of the
CAA, and the EIA, the SIP must
stipulate that any board or body, or head
of agency with similar powers
adequately disclose any potential
conflicts of interest. NMSA 1978 section
74–1–4 provides the Air Board, contain
at least a majority of members who
represent the public interest and do not
derive any ‘‘significant portion’’ of their
income from persons subject to permits
and enforcement orders or who appear
before the board on issues related to the
CAA or AQCA. The members of the
board or body, or the head of an agency
with similar powers, are required to
adequately disclose any potential
conflicts of interest.
With respect to assurances that the
State and the Air Board have
responsibility to implement the SIP
adequately when it authorizes local or
other agencies to carry out portions of
the plan, the EIA and the AQCA
designate the NMED and the Air Board
(within Albuquerque-Bernalillo County)
as the primary air pollution control
agencies. The statutes allow for local
agencies to carry out some or all the
Act’s responsibilities (NMSA 1978
section 74–2–4.D).
There is one local air quality control
agency, the Air Board, which assumes
jurisdiction for local administration and
enforcement of the AQCA in Bernalillo
County. There are Albuquerque-
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Bernalillo County SIP provisions which
are part of the New Mexico SIP.12
(F) Stationary source monitoring
system: CAA § 110(a)(2)(F) requires the
SIP provide for the establishment of a
system to monitor emissions from
stationary sources and to submit
periodic emission reports. It must
require the installation, maintenance,
and replacement of equipment, and the
implementation of other necessary
steps, by owners or operators of
stationary sources, to monitor emissions
from such sources. The SIP shall also
require periodic reports on the nature
and amounts of emissions and
emissions-related data from such
sources, and require that the state
correlate the source reports with
emission limitations or standards
established under the CAA. These
reports must be made available for
public inspection at reasonable times.
The AQCA authorizes the NMED and
Air Board to require persons engaged in
operations which result in air pollution
to monitor or test emissions and to file
reports containing information relating
to the nature and amount of emissions
NMSA 1978 section 74–2–5(C)(6). There
also are SIP-approved state regulations
pertaining to sampling and testing and
requirements for reporting of emissions
inventories (20.2 NMAC Parts 5,7–8,
10–20, 30–34, 40–41, and 72–74. In
addition, SIP rules establish general
requirements for maintaining records
and reporting emissions (20 NMAC Part
11.47).
The NMED uses this information, in
addition to information obtained from
other sources, to track progress towards
maintaining the NAAQS, developing
control and maintenance strategies,
identifying sources and general
emission levels, and determining
compliance with SIP regulations and
additional EPA requirements. The SIP
requires this information be made
available to the public. Provisions
concerning the handling of confidential
data and proprietary business
information are included in the SIP’s
regulations (20 NMAC Part 11.90).
These rules specifically exclude from
confidential treatment any records
concerning the nature and amount of
emissions reported by sources. We are
proposing that the New Mexico SIP
meets the requirements of
CAA§ 110(a)(2)(F).
(G) Emergency authority: CAA
§ 110(a)(2)(G) requires a demonstration
that the NMED has the authority to
12 Albuquerque/Bernalillo County SIP 40 CFR
part 52.1620(e) https://www.ecfr.gov/cgi-bin/textidx?SID=5388fcaf4e0e68b29abfaececc68fca9&mc=
true&node=sp40.4.52.gg&rgn=div6.
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restrain any source from causing
imminent and substantial endangerment
to public health or welfare or the
environment. The SIP must include an
adequate contingency plan to
implement such authorities as
necessary.
The AQCA provides the NMED and
the Air Board with authority to address
environmental emergencies, inclusive of
contingency plans to implement
emergency episode provisions.
Upon a finding that any owner/
operator is unreasonably affecting the
public health, safety or welfare, or the
health of animal or plant life, or
property, AQCA authorizes NMED to,
after a reasonable attempt to give notice,
declare a state of emergency and issue
without hearing an emergency special
order directing the owner/operator to
cease such pollution immediately
(NMSA 1978 74–2–10).
New Mexico promulgated the ‘‘Air
Pollution Episode Contingency Plan for
New Mexico,’’ which includes
contingency measures, and these
provisions were approved into the SIP
on August 21, 1990 (55 FR 34013).
Pursuant to 40 CFR 51, Subpart H,
Prevention of Air Pollution Emergency
Episodes, on January 26, 1989, the Air
Board adopted the Air Pollution
Contingency Plan for Bernalillo County
[8/21/91, 56 FR 38074; 40 CFR 52.1639,
Prevention of Air Emergency Episodes],
which is part of the SIP, which covers
air pollution episodes and the
occurrence of an emergency due to the
effects of the pollutants on the health of
persons.
(H) Future SIP revisions: CAA
§ 110(a)(2)(H) requires that States must
have the authority to revise their SIPs in
response to changes in the NAAQS,
availability of improved methods for
attaining the NAAQS, or in response to
an EPA finding that the SIP is
substantially inadequate to attain the
NAAQS.
The AQCA requires the NMED to
revise its SIP, as necessary, to account
for revisions of the NAAQS, new
NAAQS, to attain and maintain the
NAAQS, to abate air pollution, to adopt
more effective methods of attaining the
NAAQS, and to respond to EPA SIP
calls concerning NAAQS adoption or
implementation (NMSA 1978 sections
74–2–5(B)(1) and 74–2–5.2(B)).
Albuquerque-Bernalillo County’s SIP
is a compilation of regulations, plans
and submittals that act to improve and
maintain air quality in accordance with
national standards. The authority to
develop or revise the SIP is based on the
authority to adopt new regulations and
revise existing regulations to meet the
NAAQS. NMSA 1978 section 74–7–5
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gives the Air Board the authority to
perform these functions. Section 74–7–
5 also gives the Air Board the authority
to adopt regulations to abate, control
and prohibit air pollution throughout
Albuquerque-Bernalillo County in
accordance with the State Rules Act.
Nothing in New Mexico’s statutory or
regulatory authority prohibits
Albuquerque-Bernalillo County from
revising the SIP in the event of a
revision to the NAAQS. The AQCA
specifically requires revisions to the SIP
if the scenarios set forth in CAA section
110(a)(2)(H) occur.
(I) Nonattainment areas: The CAA
section 110(a)(2)(I) requires that in the
case of a plan or plan revision for areas
designated as nonattainment areas,
states must meet applicable
requirements of part D of the CAA,
relating to SIP requirements for
designated nonattainment areas.
As noted in element C, above, EPA
does not expect infrastructure SIP
submissions to address subsection (I).
The specific SIP submissions for
designated nonattainment areas, as
required under CAA title I, part D, are
subject to different submission
schedules than those for section 110
infrastructure elements. Instead, EPA
will take action on part D attainment
plan SIP submissions through a separate
rulemaking process governed by the
requirements for nonattainment areas,
as described in part D.
(J) Consultation with government
officials, public notification, PSD and
visibility protection: The SIP must meet
the following three CAA requirements:
(1) Section 121, relating to interagency
consultation regarding certain CAA
requirements; (2) section 127, relating to
public notification of NAAQS
exceedances and related issues; and (3)
prevention of significant deterioration of
air quality and (4) visibility protection.
(1) Interagency consultation: As
required by the AQCA, there must be a
public hearing before the adoption of
any regulations or emission control
requirements and all interested persons
must be given a reasonable opportunity
to submit data, view documents, or
argue orally or in writing and to
examine testimony of witnesses from
the hearing (NMSA 1978 section 74–2–
6B, C, and D). In addition, the AQAC
provides for the power and duty to
‘‘advise, consult, contract with and
cooperate with local authorities, other
states, the federal government and other
interested persons or groups in regard to
matters of common interest in the field
of air quality control.’’ (NMSA 1978
section 74–2–5.2(B)). Furthermore, New
Mexico’s PSD SIP rules mandate public
participation and notification regarding
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60937
permitting applications to any other
state or local air pollution control
agencies, local government officials of
the city or county where the source will
be located, tribal authorities, and
Federal Land Managers (FLMs) whose
lands may be affected by emissions from
the source or modification. The State’s
Transportation Conformity SIP rules
also provide procedures for interagency
consultation, resolution of conflicts, and
public notification. These rules apply to
both New Mexico and AlbuquerqueBernalillo County.
(2) Public Notification: The submitted
revisions provide the SIP regulatory
citations requiring both the Air Board
and NMED to regularly notify the public
of instances or areas in which any
NAAQS are exceeded, advise the public
of the health hazard associated with
such exceedances, and enhance public
awareness of measures that can prevent
such exceedances and ways in which
the public can participate in efforts to
improve air quality. 20.11.82 NMAC,
Rulemaking Procedures—Air Quality
Board, stipulates notice requirements
for rulemaking and is used as a guide for
notice requirements when adopting
SIPs.
(3) PSD and Visibility Protection: The
PSD requirements here are the same as
those addressed under (C). The New
Mexico SIP requirements for both the
state and Albuquerque-Bernalillo
County relating to visibility and regional
haze are not affected when EPA
establishes or revises a NAAQS.
Therefore, EPA has determined that
there are no new visibility protection
requirements due to the revision of the
NAAQS, and consequently there are no
newly applicable visibility protection
obligations pursuant to infrastructure
element J after the promulgation of a
new or revised NAAQS.
(K) Air quality and modeling/data:
The SIP must provide for performing air
quality modeling, as prescribed by EPA,
to predict the effects on ambient air
quality of any emissions of any NAAQS
pollutant, and for submission of such
data to EPA upon request (NMSA 1978
section 74–2–5.2(B)).
AQP has the duty, authority and
technical capability to conduct air
quality modeling, pursuant to the
AQCA, in order to assess the effect on
ambient air quality of relevant pollutant
emissions; and can provide relevant
data as part of the permitting and
NAAQS implementation process
(NMSA 1978 section 74–2–5.2(B) and
20.2.72 NMAC and 20.2.74 NMAC).
AQP follows EPA guidelines for air
dispersion modeling. Upon request,
AQP will submit current and future data
relating to air quality modeling to EPA.
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Likewise, The NMED has the power
and duty, under the AQCA to
investigate and develop facts providing
for the functions of environmental air
quality assessment (20.2.72 NMAC and
20.2.74 NMAC). Past modeling and
emissions reductions measures have
been submitted by the State and
approved into the SIP.
The New Mexico AQCA authorizes
and requires NMED to cooperate with
the federal government and local
authorities concerning matters of
common interest in the field of air
quality control, thereby allowing the
agency to make such submissions to the
EPA.
(L) Permitting Fees: The SIP must
require each major stationary source to
pay permitting fees to the permitting
authority, as a condition of any permit
required under CAA section 504, to
cover the cost of reviewing and acting
upon any application for such a permit,
and, if the permit is issued, the costs of
implementing and enforcing the terms
of the permit. The fee requirement
applies until a fee program established
by the state pursuant to Title V of the
CAA, relating to operating permits, is
approved by EPA.
The fee requirements of 20.11.2
NMAC have been approved by EPA as
meeting the CAA requirements and
were incorporated into the
Albuquerque-Bernalillo County, New
Mexico SIP [4/10/80, 45 FR 24468].
Albuquerque-Bernalillo County’s title V
operating permit program codified at
20.11.42 NMAC, Operating Permits, was
approved by EPA on 9/8/04 [FR vol. 69,
No. 173, pp. 54244–47]. In addition, see
element (E) above for the description of
the mandatory collection of permitting
fees outlined in the SIP for the entire
state.
(M) Consultation/participation by
affected local entities: CAA
§ 110(a)(2)(M) requires that the SIP must
provide for consultation and
participation by local political
subdivisions affected by the SIP.
See element J (1) and (2) for a
discussion of the SIP’s public
participation process, the authority to
advise and consult, and the PSD SIP’s
public participation requirements.
Additionally, the AQCA also requires
initiation of cooperative action between
local authorities and the NMED,
between one local authority and
another, or among any combination of
local authorities and the NMED for
control of air pollution in areas having
related air pollution problems that
overlap the boundaries of political
subdivisions, and entering into
agreements and compacts with
adjoining states and Indian tribes, where
appropriate (NMSA 1978 section 74–2–
5.2(B)). The transportation conformity
component of New Mexico’s SIP
requires that interagency consultation
and opportunity for public involvement
be provided before making
transportation conformity
determinations and before adopting
applicable SIP revisions on
transportation-related issues.
Additionally, with regard to the Air
Board, the New Mexico State Statute
section 74–2–5.2 State Air Pollution
Control Agency; Specific Duties and
Powers of the Department, states that,
‘‘The department is the state air
pollution control agency for all
purposes under federal legislation
relating to pollution. The department is
required to ‘‘advise, consult, contract
and cooperate with local authorities,
other states, the federal government and
other interested persons or groups in
regard to matters of common interest in
the field of air quality control.’’
III. EPA’s Evaluation of CAA Section
128: State Boards and Heads of
Executive Agency, Conflicts of Interest
On August 6, 2015, New Mexico
submitted a SIP revision that contains
revisions to the New Mexico Statutes
Annotated 1978 for inclusion into the
SIP. The revisions that are necessary for
inclusion into the State’s SIP address
the requirements of CAA section 128 in
relation to State Boards/Heads of
Executive Agency and Conflicts of
Interest/Disclosure.
In this submittal, New Mexico
demonstrated how State Boards or the
head of an executive agency who
approves CAA permits or enforcement
orders disclose any potential conflicts of
interest as required by CAA section 128.
The State’s Conflict of Interest Act and
NM EIB Code of Conduct was initially
approved into the SIP on June 1, 1999.
This submission updates the prior
submission by providing an official
change of name for the ‘‘Conflict of
Interest Act’’ to ‘‘Governmental Conduct
Act’’, adding definitions, prohibits
public officials from disclosing
confidential information acquired from
local government agency positions,
more clearly defining contracts
involving public officers or employees,
expanding EIB from 5 to 7 members and
correcting grammatical errors. The
submission included a table specifically
outlining all these changes. This table is
included in the docket.
IV. Proposed Action
EPA is proposing to approve the
August 6, 2015, and December 8, 2015
submitted revisions for the SIP for New
Mexico and Albuquerque-Bernalillo
County pursuant to the requirements of
CAA sections 110(a)(1) and (2) as
applicable to the 2012 PM2.5 NAAQS.
The Table below outlines the specific
actions EPA is proposing to approve. By
this action, EPA is also approving
revisions to the New Mexico SIP
regarding State Boards or the head of an
executive agency who approves CAA
permits or enforcement orders for the
State of New Mexico. The SIP revisions
were submitted by the State to update
the SIP with updated language from
NMSA.
TABLE 1—PROPOSED ACTION ON NEW MEXICO INFRASTRUCTURE SIP SUBMITTAL FOR VARIOUS NAAQS
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Element
2012
PM2.5
(A): Emission limits and other control measures ............................................................................................................................................
(B): Ambient air quality monitoring and data system ......................................................................................................................................
(C)(i): Enforcement of SIP measures ..............................................................................................................................................................
(C)(ii): PSD program for major sources and major modifications ...................................................................................................................
(C)(iii): Permitting program for minor sources and minor modifications .........................................................................................................
(D)(i): Prohibit emissions to other states which will (1) significantly contribute to nonattainment of the NAAQS, (2) interfere with maintenance of the NAAQS, (3) interfere with PSD requirements or (4) interfere with visibility protection .........................................................
(D)(ii): Interstate and International Pollution Abatement .................................................................................................................................
(E)(i): Adequate resources ..............................................................................................................................................................................
(E)(ii): State boards .........................................................................................................................................................................................
(E)(iii): Necessary assurances with respect to local agencies ........................................................................................................................
(F): Stationary source monitoring system .......................................................................................................................................................
(G): Emergency power ....................................................................................................................................................................................
A
A
A
A
A
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A
A
A
A
A
A
A
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60939
TABLE 1—PROPOSED ACTION ON NEW MEXICO INFRASTRUCTURE SIP SUBMITTAL FOR VARIOUS NAAQS—Continued
Element
2012
PM2.5
(H): Future SIP revisions .................................................................................................................................................................................
(I): Nonattainment area plan or plan revisions under part D ..........................................................................................................................
(J)(i): Consultation with government officials ..................................................................................................................................................
(J)(ii): Public notification ..................................................................................................................................................................................
(J)(iii): PSD ......................................................................................................................................................................................................
(J)(iv): Visibility protection ................................................................................................................................................................................
(K): Air quality modeling and data ...................................................................................................................................................................
(L): Permitting fees ..........................................................................................................................................................................................
(M): Consultation and participation by affected local entities .........................................................................................................................
A
+
A
A
A
+
A
A
A
Key to Table:
A—Proposed Approval.
+—Not germane to infrastructure SIPs.
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Based upon our review of these
infrastructure SIP submissions and
relevant statutory and regulatory
authorities and provisions referenced in
these submissions or referenced in the
Albuquerque-Bernalillo County, New
Mexico or New Mexico SIP, EPA finds
that New Mexico and AlbuquerqueBernalillo County have the
infrastructure in place to address all
applicable required elements of CAA
sections 110(a)(1) and (2) to ensure that
the 2012 PM2.5, NAAQS are
implemented in the state and in
Albuquerque-Bernalillo County.
We are proposing to approve the
submitted revisions to the New Mexico
SIP that provides emendation to the
New Mexico Statutes Annotated 1978
and update the federally approved New
Mexico SIP accordingly. Those include
emendation to the following: New
Mexico Statutes at Chapter 9
Department of Environment Act Article
7A–6 Secretary; duties and general
powers; and 7A–11 Cooperation with
the federal government; authority of
secretary; single state agency status;
Chapter 10 Public Officers and
Employees Article 16–1 through 10–16–
16 Governmental Conduct; and Chapter
74 Environmental Improvement Article
1 General Provisions and Article 2 Air
Pollution.
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 Statutes as
described in the Proposed Action
section above. We have 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
(please contact Ms. Sherry Fuerst for
more information).
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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,
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 FR3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866;
• 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);
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• 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, Intergovernmental relations,
Particulate matter, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 13, 2017.
Samuel Coleman,
Acting Regional Administrator, Region 6.
[FR Doc. 2017–27296 Filed 12–22–17; 8:45 am]
BILLING CODE 6560–50–P
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[Federal Register Volume 82, Number 246 (Tuesday, December 26, 2017)]
[Proposed Rules]
[Pages 60933-60939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-27296]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2015-0850; FRL-9971-17--Region 6]
Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport for the 2012 Fine
Particulate Matter National Ambient Air Quality Standard and Revised
Statutes
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve State Implementation Plan (SIP) revisions submitted by the
State of New Mexico to address the requirements of section 110(a)(1)
and (2) of the Clean Air Act (CAA or Act) for 2012 fine particulate
matter (PM2.5) National Ambient Air Quality Standard
(NAAQS). The revisions address how the existing SIP provides for
implementation, maintenance, and enforcement of PM2.5
(infrastructure SIP or i-SIP). Under CAA sections 110(a)(1) and
110(a)(2), each state is required to submit a SIP that provides for the
implementation, maintenance, and enforcement of a revised primary or
secondary NAAQS. CAA section 110(a)(1) and (2) require each state to
make a new SIP submission within three years after EPA promulgates a
new or revised NAAQS for approval into the existing SIP to assure that
the SIP meets the applicable requirements for such new and revised
NAAQS. This type of SIP submission is commonly referred to as an
``infrastructure SIP or ``i-SIP.'' We propose approval of this action
under Section 110 of the Act. EPA is also proposing to approve a SIP
revision to update the New Mexico statutes incorporated into the SIP.
DATES: Written comments must be received on or before January 25, 2018.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2015-0850, 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 Sherry Fuerst, (214) 665-
6454, [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://www2.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 EPA Region 6,
1445 Ross Avenue, Suite 700, Dallas, Texas. 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: Sherry Fuerst, (214) 665-6454,
[email protected]. To inspect the hard copy materials, please
schedule an appointment with her or Bill Deese at (214) 665-7253.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or
``our'' mean EPA.
I. Background
On December 14, 2012 we promulgated a revised primary annual
PM2.5 NAAQS of 12.0 [micro]g/m\3\ (78 FR 3085, January
15,2013), and we retained the primary 24-hour PM2.5 standard
of 35 [micro]g/m\3\ and the secondary standards.
[[Page 60934]]
Primary standards are set to protect human health while secondary
standards are set to protect public welfare.
Pursuant to section 110(a)(1) of the CAA, states are required to
submit an i-SIP within three years after the promulgation of a new or
revised NAAQS. Section 110(a)(2) of the CAA includes a list of specific
elements the i-SIP must include to adequately address such new or
revised NAAQS as applicable. EPA issued guidance addressing the i-SIP
elements for NAAQS.\1\ The New Mexico Environment (NMED) and
Albuquerque-Bernalillo County each provided demonstrations of how the
existing New Mexico SIP meets the applicable 110(a)(2) requirements for
the 2012 PM2.5 NAAQS on August 6, 2015 and December 8, 2015,
respectively. Our technical evaluation of these submittals is provided
in the Technical Support Document (TSD), which is in the rulemaking.\2\
---------------------------------------------------------------------------
\1\ ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act sections 110(a)(1) and 110(a)(2),''
Memorandum from Stephen D. Page, September 13, 2013.
\2\ A detailed discussion of our evaluation can be found in the
TSD for this action. The TSD can be accessed through
www.regulations.gov (e-docket EPA-R06-OAR-2015-0850).
---------------------------------------------------------------------------
Additionally, NMED provided updated statutes for the SIP. Sections
110(a)(2)(E)(ii) and 128 of the CAA require SIPs to contain statutory
or regulatory provisions that: (1) Any board or body which approves
permits or enforcement orders under the CAA have at least a majority of
its members represent the public interest and not derive any
significant portion of their income from persons subject to permits or
enforcement orders under the CAA; and (2) any potential conflict of
interest by members of such board or body or the head of an executive
agency with similar powers be adequately disclosed.
II. EPA's Evaluation of New Mexico's and Albuquerque-Bernalillo
County's NAAQS Infrastructure Submissions
The State's submissions on August 6, 2015 and December 8, 2015,
demonstrate how the existing New Mexico SIP meets the infrastructure
requirements for the 2012 PM2.5 NAAQS. A detailed discussion
of our evaluation can be found in the Technical Support Document TSD
for this action. The TSD can be accessed through www.regulations.gov
(e-docket EPA-R06-OAR-2015-0850). Below is a summary of EPA's
evaluation of the New Mexico i-SIP and Albuquerque-Bernalillo County i-
SIP for each applicable element of 110(a)(2) A-M.
(A) Emission limits and other control measures: The CAA Sec.
110(a)(2)(A) requires the SIP to include enforceable emission limits
and other control measures, means or techniques (including economic
incentives such as fees, marketable permits, and auctions of emissions
rights), as well as schedules and timetables for compliance, as may be
necessary or appropriate to meet the applicable requirements of the Act
and other related matters as needed to implement, maintain and enforce
each of the NAAQS.\3\ The New Mexico Environmental Improvement Act
(EIA), codified in Chapter 74, Article 1 of the New Mexico Statutes
Annotated 1978 (NMSA), created the New Mexico Environment Department
(NMED) and the New Mexico Environmental Improvement Board (EIB).
Statutory authority for Albuquerque-Bernalillo County's air quality
program, codified in Chapter 74 EIA, Article 2, Air Pollution, of the
New Mexico statutes, gives the Air Board and Albuquerque Environmental
Health Department's Air Quality Program (AQP) the authority to
implement the CAA in Albuquerque-Bernalillo County, New Mexico. NMED
has jurisdiction over all of New Mexico except for Albuquerque-
Bernalillo County. We will distinguish between these two authorities by
referring to them as NMED, EIB or the State for everywhere outside of
Albuquerque-Bernalillo County and as AQP or the Air Board as everything
pertaining to within Bernalillo County.
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\3\ The specific nonattainment area plan requirements of CAA
section 110(a)(2)(I) are subject to the timing requirements of CAA
section 172, not the timing requirement of CAA section 110(a)(1).
Thus, CAA section 110(a)(2)(A) does not require that states submit
regulations or emissions limits specifically for attaining the 2012
PM2.5 NAAQS. Those SIP provisions are due as part of each
state's attainment plan, and will be addressed separately from the
requirements of CAA section 110(a)(2)(A). In the context of an
infrastructure SIP, EPA is not evaluating the existing SIP
provisions for this purpose. Instead, EPA is only evaluating whether
the state's SIP has basic structural provisions for the
implementation of the NAAQS.
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The New Mexico Air Quality Control Act (AQCA) codified at NMSA
1978, Subpart 74-2 et seq., delegates authority to the EIB to adopt,
promulgate, publish, amend and repeal regulations consistent with the
AQCA to attain and maintain the NAAQS and prevent or abate air
pollution. The AQCA also designates the NMED as the State's air
pollution control agency and the EIA provides NMED with enforcement
authority everywhere within the State of New Mexico excluding
Albuquerque-Bernalillo County. Chapter 2 Title 20 of the New Mexico
Administrative Code (NMAC) establishes NMED as the State's air
pollution control agency (within the State of New Mexico excluding
Albuquerque-Bernalillo County) and establishes its enforcement
authority, referencing the NMSA 1978 (44 FR21019, April 9, 1979;
revised 49 FR 44101, November 2, 1984; recodification approved in 62 FR
50518, September 26, 1997, approving various statutory and regulatory
provisions in New Mexico's SIP). This authority has been employed to
adopt and submit multiple revisions to the New Mexico SIP.
With regard to Albuquerque-Bernalillo County, enforceable emission
limitations and other control measures are authorized by the New Mexico
AQCA which established the Air Board and those provisions of NMAC Title
20, Environmental Protection, Chapter 11, Albuquerque-Bernalillo County
Air Quality Control Board. It can adopt emission standards and
compliance schedules applicable to regulated entities; emission
standards and limitations and any other measures necessary for
attainment and maintenance of national standards; and, enforce
applicable laws, regulations, standards and compliance schedules, and
seek injunctive relief within the boundaries of Bernalillo County. This
authority has been employed to adopt and submit multiple revisions to
the Albuquerque-Bernalillo County, New Mexico SIP. The approved SIP for
the State of New Mexico, including Albuquerque-Bernalillo County is
documented at 40 CFR part 52.1620, Subpart GG.\4\ EPA is therefore
proposing to find that the New Mexico SIP meets the requirements of
section 110(a)(2)(A) of the Act with respect to 2012 PM2.5.
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\4\ https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=d13cf1de493c65047374561758ed5ea3&mc=true&r=PART&n=pt40.4.52#sp40.4.52.gg.
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(B) Ambient air quality monitoring/data system: Section
110(a)(2)(B) of the CAA requires SIPs to include provisions for
establishment and operation of ambient air quality monitors, collecting
and analyzing ambient air quality data, and making these data available
to EPA upon request.
The AQCA provides the authority allowing EIB, NMED and AQP to
collect air monitoring data, quality-assure the results, and report the
data (NMSA 1978, 74-2-5.1(B). New Mexico and AQP each maintain and
operate PM2.5 networks to measure ambient levels. All
monitoring data is measured using EPA approved methods and subject to
the EPA quality assurance requirements. NMED and AQP submit all
required
[[Page 60935]]
data to EPA, following the EPA rules. These networks have been approved
into the SIP (46 FR 4005, August 6, 1981) and they undergo recurrent
annual review by EPA.\5\ In addition, NMED and AQP conduct recurrent
assessments of their monitoring networks every five years, which
includes an evaluation of ambient monitoring for PM2.5, as
required by EPA rules. The most recent of these 5-year monitoring
network assessments were conducted by NMED and AQP in 2015 and EPA
reviewed and commented on these reviews. The comment letter is in the
docket.\6\ The NMED and AQP websites provide the monitor locations and
posts past and current concentrations of criteria pollutants measured
in these network of monitors.\7\
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\5\ A copy of the 2016 Annual Air Monitoring Network Plan and
EPA's approval letter are included in the docket for this proposed
rulemaking.
\6\ A copy of the 2015 5-year ambient monitoring network
assessment and EPA's approval letter are included in the docket for
this proposed rulemaking.
\7\ See https://www.env.nm.gov/aqb/monitor/airmonitoringnetwork.html.
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In summary, New Mexico and Albuquerque-Bernalillo County meet the
requirement to establish, operate, and maintain an ambient air
monitoring network; collect and analyze the monitoring data; and make
the data available to EPA upon request. EPA is proposing to find that
the current New Mexico SIP meets the requirements of section
110(a)(2)(B) with respect to 2012 PM2.5.
(C) Program for enforcement of control measures: The CAA Sec.
110(a)(2)(C) requires SIPs include the following three elements: (1) A
program providing for enforcement of the measures in paragraph A above;
(2) a program for the regulation of the modification and construction
of stationary sources as necessary to protect the applicable NAAQS
(i.e., state-wide permitting of minor sources); and (3) a permit
program to meet the major source permitting requirements of the CAA
(for areas designated as attainment or unclassifiable for the NAAQS in
question).\8\
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\8\ As discussed in further detail in the TSD.
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(1) Enforcement of SIP Measures. As noted in (A), the AQCA provides
authority for the EIB, NMED and AQP to enforce the requirements of the
AQCA within Albuquerque-Bernalillo County and New Mexico, and any
regulations, permits or final compliance orders. Its statutes also
provide the EIB, NMED and AQP with general enforcement powers. Among
other things, they can file lawsuits to compel compliance with statutes
and regulations; commence civil actions; issue field citations, conduct
investigations of regulated entities; collect criminal and civil
penalties; develop and enforce rules and standards related to
protection of air quality; issue compliance orders; pursue criminal
prosecutions; investigate, enter into remediation agreements; and issue
emergency cease and desist orders. The AQAC also provides additional
enforcement authorities and funding mechanisms. (NMSA 1978, sections
74-2-12, 74-2-2, and 74-1-6.F.
(2) Minor New Source Review. Section 110(a)(2)(C) also requires
that the SIP include measures to regulate construction and modification
of stationary sources to protect the NAAQS. Both the New Mexico (78 FR
15296, March 11, 2013) and Albuquerque-Bernalillo County (69 FR 78312,
December 30, 2004) minor NSR permitting requirements are approved as
part of the SIP.\9\
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\9\ EPA is not proposing to approve or disapprove the existing
New Mexico or Albuquerque-Bernalillo County minor NSR programs to
the extent that it may be inconsistent with EPA's regulations
governing this program. EPA has maintained that the CAA does not
require that new infrastructure SIP submissions correct any defects
in existing EPA-approved provisions of minor NSR programs in order
for EPA to approve the infrastructure SIP for element C (e.g., 76 FR
41076-41079, July 13 2011). EPA believes that a number of states may
have minor NSR provisions that are contrary to the existing EPA
regulations for this program. The statutory requirements of CAA
section 110(a)(2)(C) provide for considerable flexibility in
designing minor NSR programs.
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(3) Prevention of Significant Deterioration (PSD) permit program.
Both Albuquerque-Bernalillo County (80 FR 52401, August 31, 2015) and
New Mexico (78 FR 15296, March 11, 2013) PSD program portions of the
SIP cover all NSR regulated pollutants as well as the requirements for
the 2012 PM2.5 NAAQS and have been approved into the SIP by
EPA.\10\
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\10\ As discussed further in the TSD.
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(D) Interstate and international transport: Under CAA section
110(a)(2)(D)(i), there are four requirements the SIP must include
relating to interstate transport. The first two of the four
requirements are outlined in CAA section 110(a)(2)(D)(i)(I) and require
that the SIP contain adequate provisions prohibiting emissions to other
states which will (1) contribute significantly to nonattainment of the
NAAQS, and (2) interfere with maintenance of the NAAQS. The third and
fourth requirements are outlined in CAA section 110(a)(2)(D)(i)(II) and
require that the SIP contain adequate provisions prohibiting emissions
to other states which will (1) interfere with measures required to
prevent significant deterioration or (2) interfere with measures to
protect visibility.
Both SIP revision submittals included the same attachment with the
evaluation of CAA section 110(a)(2)(D)(i)(I). This evaluation
considered the following factors:
An analysis of the most recent annual PM2.5
design values to determine which areas near New Mexico violate, or are
close to violating the 2012 annual PM2.5 NAAQS;
An analysis of the PM2.5 annual design value
trends in New Mexico (including Bernalillo County) to determine if the
PM2.5 concentrations in New Mexico are increasing or
decreasing; and,
An investigation of PM2.5 annual design value
trends in other states to determine whether PM2.5
concentrations in those areas are increasing or decreasing.
This evaluation concluded that New Mexico did not significantly
contribute to nonattainment or interfere with maintenance of the
PM2.5 NAAQS in other states.
On March 17, 2016 EPA issued a memo providing information on the
development and review of SIPs that address CAA section 110(a)(2)(D)(i)
for the 2012 PM2.5.\11\ We used the information in the memo
and additional supplemental information for our evaluation and came to
the same conclusion as the state. In our evaluation, potential downwind
nonattainment and maintenance receptors were identified. These
potential receptors were evaluated to determine if New Mexico emissions
could possibly contribute to the attainment challenges. After reviewing
air quality reports, modeling reports, designation letters, designation
technical support documents, attainment plans and other reports for
these areas, EPA is proposing to approve the SIP revisions as meeting
the CAA section 110(a)(2)(i)(I) requirement that New Mexico (including
Albuquerque-Bernalillo County) emissions will not interfere with
maintenance or contribute significantly to nonattainment of the 2012
PM2.5 NAAQS for any other state.
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\11\ March 17, 2016 information memo ``Information on the
Interstate Transport ``Good Neighbor'' Provision for the 2012 Fine
Particulate Matter National Ambient Air Quality Standards under
Clean Air Act Section 110(a)(2)(D)(i)(I).''
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With regard to CAA section 110(a)(2)(D)(i)(II), both New Mexico and
Albuquerque-Bernalillo County state that as noted in Element C above,
they each have a comprehensive EPA-approved PSD and regional haze
[[Page 60936]]
programs. As we have approved both New Mexico and Albuquerque-
Bernalillo County comprehensive PSD programs (80 FR 40915, July 14,
2015 and 80 FR 52402, August 31, 2015, respectively) and regional haze
plans (79 FR 60992, October 9, 2014, 77 FR 71119, November 29, 2012,
respectively), we propose to approve the revisions pertaining to CAA
section 110(a)(2)(D)(i)(II). A more detailed evaluation of how the SIP
revisions meet the requirements of CAA section 110(a)(2)(D)(i) may be
found in the TSD.
CAA section 110(a)(2)(D)(ii) requires that the SIP contain adequate
provisions insuring compliance with the applicable requirements of
sections 126 (relating to interstate pollution abatement) and 115
(relating to international pollution abatement). As stated in their
submittals, New Mexico and Albuquerque-Bernalillo County meet the
section 126 requirements as (1) they have fully approved PSD SIPs
(Albuquerque-Bernalillo County 80 FR 52401, August 31, 2015 and New
Mexico 78 FR 15296, March 11, 2013) which include notification to
neighboring air agencies of potential impacts from each new or modified
major source and (2) no source or sources have been identified by the
EPA as having any interstate impacts under section 126 in any pending
action related to any air pollutant. New Mexico and Albuquerque-
Bernalillo County meet section 115 requirements as there are no
findings by EPA that New Mexico or Albuquerque-Bernalillo County air
emissions affect other countries. Therefore, we propose to approve the
submitted revisions pertaining to CAA section 110(a)(2)(D)(ii).
(E) Adequate authority, resources, implementation, and oversight:
CAA 110(a)(2)(E) requires that the SIP provide for the following: (1)
Necessary assurances that the state (and other entities within the
state responsible for implementing the SIP) will have adequate
personnel, funding, and authority under state or local law to implement
the SIP, and that there are no legal impediments to such
implementation; (2) Compliance with requirements relating to state
boards as required under section 128 of the CAA; and (3) necessary
assurances that the state has responsibility for ensuring adequate
implementation of any plan provision for which it relies on local
governments or other entities to carry out that portion of the plan.
Both elements (A) and (E) address the requirement that there is
adequate authority to implement and enforce the SIP and that there are
no legal impediments.
The i-SIP submissions for the 2012 PM2.5 NAAQS describe
the SIP regulations governing the various functions of personnel within
the EIB, NMEQ, AQP and the Air Board, including the administrative,
technical support, planning, enforcement, and permitting functions of
the program. (NMSA 1978, sections 9-7A-6(B)(4), 9-7A-11A, 74-2-5.1(F)
and 74-2-5.2).
With respect to funding, the AQCA requires NMED to establish an
emissions fee schedule for sources in order to fund the reasonable
costs of administering various air pollution control programs and
authorizes NMED to collect additional fees necessary to cover
reasonable costs associated with processing of air permit applications
(NMSA 1978, sections 9-7A-6(B)(4), 9-7A-11A, 74-2-5.1.(F) and 74-2-
5.2). EPA conducts periodic program reviews to ensure that the state
has adequate resources and funding to among other things implement and
enforce the SIP. With respect to funding for AQP and the Air Board, the
resources to carry out the plan are provided through General Funds,
Permit Fees and the CAA grant process. Permit Fees are collected under
the authority of NMSA 1978 section 74-2-7.
As required by Sec. 110(a)(2)(E)(ii) of the CAA, and the EIA, the
SIP must stipulate that any board or body, or head of agency with
similar powers adequately disclose any potential conflicts of interest.
NMSA 1978 section 74-1-4 provides the Air Board, contain at least a
majority of members who represent the public interest and do not derive
any ``significant portion'' of their income from persons subject to
permits and enforcement orders or who appear before the board on issues
related to the CAA or AQCA. The members of the board or body, or the
head of an agency with similar powers, are required to adequately
disclose any potential conflicts of interest.
With respect to assurances that the State and the Air Board have
responsibility to implement the SIP adequately when it authorizes local
or other agencies to carry out portions of the plan, the EIA and the
AQCA designate the NMED and the Air Board (within Albuquerque-
Bernalillo County) as the primary air pollution control agencies. The
statutes allow for local agencies to carry out some or all the Act's
responsibilities (NMSA 1978 section 74-2-4.D).
There is one local air quality control agency, the Air Board, which
assumes jurisdiction for local administration and enforcement of the
AQCA in Bernalillo County. There are Albuquerque-Bernalillo County SIP
provisions which are part of the New Mexico SIP.\12\
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\12\ Albuquerque/Bernalillo County SIP 40 CFR part 52.1620(e)
https://www.ecfr.gov/cgi-bin/text-idx?SID=5388fcaf4e0e68b29abfaececc68fca9&mc=true&node=sp40.4.52.gg&rgn=div6.
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(F) Stationary source monitoring system: CAA Sec. 110(a)(2)(F)
requires the SIP provide for the establishment of a system to monitor
emissions from stationary sources and to submit periodic emission
reports. It must require the installation, maintenance, and replacement
of equipment, and the implementation of other necessary steps, by
owners or operators of stationary sources, to monitor emissions from
such sources. The SIP shall also require periodic reports on the nature
and amounts of emissions and emissions-related data from such sources,
and require that the state correlate the source reports with emission
limitations or standards established under the CAA. These reports must
be made available for public inspection at reasonable times.
The AQCA authorizes the NMED and Air Board to require persons
engaged in operations which result in air pollution to monitor or test
emissions and to file reports containing information relating to the
nature and amount of emissions NMSA 1978 section 74-2-5(C)(6). There
also are SIP-approved state regulations pertaining to sampling and
testing and requirements for reporting of emissions inventories (20.2
NMAC Parts 5,7-8, 10-20, 30-34, 40-41, and 72-74. In addition, SIP
rules establish general requirements for maintaining records and
reporting emissions (20 NMAC Part 11.47).
The NMED uses this information, in addition to information obtained
from other sources, to track progress towards maintaining the NAAQS,
developing control and maintenance strategies, identifying sources and
general emission levels, and determining compliance with SIP
regulations and additional EPA requirements. The SIP requires this
information be made available to the public. Provisions concerning the
handling of confidential data and proprietary business information are
included in the SIP's regulations (20 NMAC Part 11.90). These rules
specifically exclude from confidential treatment any records concerning
the nature and amount of emissions reported by sources. We are
proposing that the New Mexico SIP meets the requirements of CAASec.
110(a)(2)(F).
(G) Emergency authority: CAA Sec. 110(a)(2)(G) requires a
demonstration that the NMED has the authority to
[[Page 60937]]
restrain any source from causing imminent and substantial endangerment
to public health or welfare or the environment. The SIP must include an
adequate contingency plan to implement such authorities as necessary.
The AQCA provides the NMED and the Air Board with authority to
address environmental emergencies, inclusive of contingency plans to
implement emergency episode provisions.
Upon a finding that any owner/operator is unreasonably affecting
the public health, safety or welfare, or the health of animal or plant
life, or property, AQCA authorizes NMED to, after a reasonable attempt
to give notice, declare a state of emergency and issue without hearing
an emergency special order directing the owner/operator to cease such
pollution immediately (NMSA 1978 74-2-10).
New Mexico promulgated the ``Air Pollution Episode Contingency Plan
for New Mexico,'' which includes contingency measures, and these
provisions were approved into the SIP on August 21, 1990 (55 FR 34013).
Pursuant to 40 CFR 51, Subpart H, Prevention of Air Pollution
Emergency Episodes, on January 26, 1989, the Air Board adopted the Air
Pollution Contingency Plan for Bernalillo County [8/21/91, 56 FR 38074;
40 CFR 52.1639, Prevention of Air Emergency Episodes], which is part of
the SIP, which covers air pollution episodes and the occurrence of an
emergency due to the effects of the pollutants on the health of
persons.
(H) Future SIP revisions: CAA Sec. 110(a)(2)(H) requires that
States must have the authority to revise their SIPs in response to
changes in the NAAQS, availability of improved methods for attaining
the NAAQS, or in response to an EPA finding that the SIP is
substantially inadequate to attain the NAAQS.
The AQCA requires the NMED to revise its SIP, as necessary, to
account for revisions of the NAAQS, new NAAQS, to attain and maintain
the NAAQS, to abate air pollution, to adopt more effective methods of
attaining the NAAQS, and to respond to EPA SIP calls concerning NAAQS
adoption or implementation (NMSA 1978 sections 74-2-5(B)(1) and 74-2-
5.2(B)).
Albuquerque-Bernalillo County's SIP is a compilation of
regulations, plans and submittals that act to improve and maintain air
quality in accordance with national standards. The authority to develop
or revise the SIP is based on the authority to adopt new regulations
and revise existing regulations to meet the NAAQS. NMSA 1978 section
74-7-5 gives the Air Board the authority to perform these functions.
Section 74-7-5 also gives the Air Board the authority to adopt
regulations to abate, control and prohibit air pollution throughout
Albuquerque-Bernalillo County in accordance with the State Rules Act.
Nothing in New Mexico's statutory or regulatory authority prohibits
Albuquerque-Bernalillo County from revising the SIP in the event of a
revision to the NAAQS. The AQCA specifically requires revisions to the
SIP if the scenarios set forth in CAA section 110(a)(2)(H) occur.
(I) Nonattainment areas: The CAA section 110(a)(2)(I) requires that
in the case of a plan or plan revision for areas designated as
nonattainment areas, states must meet applicable requirements of part D
of the CAA, relating to SIP requirements for designated nonattainment
areas.
As noted in element C, above, EPA does not expect infrastructure
SIP submissions to address subsection (I). The specific SIP submissions
for designated nonattainment areas, as required under CAA title I, part
D, are subject to different submission schedules than those for section
110 infrastructure elements. Instead, EPA will take action on part D
attainment plan SIP submissions through a separate rulemaking process
governed by the requirements for nonattainment areas, as described in
part D.
(J) Consultation with government officials, public notification,
PSD and visibility protection: The SIP must meet the following three
CAA requirements: (1) Section 121, relating to interagency consultation
regarding certain CAA requirements; (2) section 127, relating to public
notification of NAAQS exceedances and related issues; and (3)
prevention of significant deterioration of air quality and (4)
visibility protection.
(1) Interagency consultation: As required by the AQCA, there must
be a public hearing before the adoption of any regulations or emission
control requirements and all interested persons must be given a
reasonable opportunity to submit data, view documents, or argue orally
or in writing and to examine testimony of witnesses from the hearing
(NMSA 1978 section 74-2-6B, C, and D). In addition, the AQAC provides
for the power and duty to ``advise, consult, contract with and
cooperate with local authorities, other states, the federal government
and other interested persons or groups in regard to matters of common
interest in the field of air quality control.'' (NMSA 1978 section 74-
2-5.2(B)). Furthermore, New Mexico's PSD SIP rules mandate public
participation and notification regarding permitting applications to any
other state or local air pollution control agencies, local government
officials of the city or county where the source will be located,
tribal authorities, and Federal Land Managers (FLMs) whose lands may be
affected by emissions from the source or modification. The State's
Transportation Conformity SIP rules also provide procedures for
interagency consultation, resolution of conflicts, and public
notification. These rules apply to both New Mexico and Albuquerque-
Bernalillo County.
(2) Public Notification: The submitted revisions provide the SIP
regulatory citations requiring both the Air Board and NMED to regularly
notify the public of instances or areas in which any NAAQS are
exceeded, advise the public of the health hazard associated with such
exceedances, and enhance public awareness of measures that can prevent
such exceedances and ways in which the public can participate in
efforts to improve air quality. 20.11.82 NMAC, Rulemaking Procedures--
Air Quality Board, stipulates notice requirements for rulemaking and is
used as a guide for notice requirements when adopting SIPs.
(3) PSD and Visibility Protection: The PSD requirements here are
the same as those addressed under (C). The New Mexico SIP requirements
for both the state and Albuquerque-Bernalillo County relating to
visibility and regional haze are not affected when EPA establishes or
revises a NAAQS. Therefore, EPA has determined that there are no new
visibility protection requirements due to the revision of the NAAQS,
and consequently there are no newly applicable visibility protection
obligations pursuant to infrastructure element J after the promulgation
of a new or revised NAAQS.
(K) Air quality and modeling/data: The SIP must provide for
performing air quality modeling, as prescribed by EPA, to predict the
effects on ambient air quality of any emissions of any NAAQS pollutant,
and for submission of such data to EPA upon request (NMSA 1978 section
74-2-5.2(B)).
AQP has the duty, authority and technical capability to conduct air
quality modeling, pursuant to the AQCA, in order to assess the effect
on ambient air quality of relevant pollutant emissions; and can provide
relevant data as part of the permitting and NAAQS implementation
process (NMSA 1978 section 74-2-5.2(B) and 20.2.72 NMAC and 20.2.74
NMAC). AQP follows EPA guidelines for air dispersion modeling. Upon
request, AQP will submit current and future data relating to air
quality modeling to EPA.
[[Page 60938]]
Likewise, The NMED has the power and duty, under the AQCA to
investigate and develop facts providing for the functions of
environmental air quality assessment (20.2.72 NMAC and 20.2.74 NMAC).
Past modeling and emissions reductions measures have been submitted by
the State and approved into the SIP.
The New Mexico AQCA authorizes and requires NMED to cooperate with
the federal government and local authorities concerning matters of
common interest in the field of air quality control, thereby allowing
the agency to make such submissions to the EPA.
(L) Permitting Fees: The SIP must require each major stationary
source to pay permitting fees to the permitting authority, as a
condition of any permit required under CAA section 504, to cover the
cost of reviewing and acting upon any application for such a permit,
and, if the permit is issued, the costs of implementing and enforcing
the terms of the permit. The fee requirement applies until a fee
program established by the state pursuant to Title V of the CAA,
relating to operating permits, is approved by EPA.
The fee requirements of 20.11.2 NMAC have been approved by EPA as
meeting the CAA requirements and were incorporated into the
Albuquerque-Bernalillo County, New Mexico SIP [4/10/80, 45 FR 24468].
Albuquerque-Bernalillo County's title V operating permit program
codified at 20.11.42 NMAC, Operating Permits, was approved by EPA on 9/
8/04 [FR vol. 69, No. 173, pp. 54244-47]. In addition, see element (E)
above for the description of the mandatory collection of permitting
fees outlined in the SIP for the entire state.
(M) Consultation/participation by affected local entities: CAA
Sec. 110(a)(2)(M) requires that the SIP must provide for consultation
and participation by local political subdivisions affected by the SIP.
See element J (1) and (2) for a discussion of the SIP's public
participation process, the authority to advise and consult, and the PSD
SIP's public participation requirements. Additionally, the AQCA also
requires initiation of cooperative action between local authorities and
the NMED, between one local authority and another, or among any
combination of local authorities and the NMED for control of air
pollution in areas having related air pollution problems that overlap
the boundaries of political subdivisions, and entering into agreements
and compacts with adjoining states and Indian tribes, where appropriate
(NMSA 1978 section 74-2-5.2(B)). The transportation conformity
component of New Mexico's SIP requires that interagency consultation
and opportunity for public involvement be provided before making
transportation conformity determinations and before adopting applicable
SIP revisions on transportation-related issues.
Additionally, with regard to the Air Board, the New Mexico State
Statute section 74-2-5.2 State Air Pollution Control Agency; Specific
Duties and Powers of the Department, states that, ``The department is
the state air pollution control agency for all purposes under federal
legislation relating to pollution. The department is required to
``advise, consult, contract and cooperate with local authorities, other
states, the federal government and other interested persons or groups
in regard to matters of common interest in the field of air quality
control.''
III. EPA's Evaluation of CAA Section 128: State Boards and Heads of
Executive Agency, Conflicts of Interest
On August 6, 2015, New Mexico submitted a SIP revision that
contains revisions to the New Mexico Statutes Annotated 1978 for
inclusion into the SIP. The revisions that are necessary for inclusion
into the State's SIP address the requirements of CAA section 128 in
relation to State Boards/Heads of Executive Agency and Conflicts of
Interest/Disclosure.
In this submittal, New Mexico demonstrated how State Boards or the
head of an executive agency who approves CAA permits or enforcement
orders disclose any potential conflicts of interest as required by CAA
section 128. The State's Conflict of Interest Act and NM EIB Code of
Conduct was initially approved into the SIP on June 1, 1999. This
submission updates the prior submission by providing an official change
of name for the ``Conflict of Interest Act'' to ``Governmental Conduct
Act'', adding definitions, prohibits public officials from disclosing
confidential information acquired from local government agency
positions, more clearly defining contracts involving public officers or
employees, expanding EIB from 5 to 7 members and correcting grammatical
errors. The submission included a table specifically outlining all
these changes. This table is included in the docket.
IV. Proposed Action
EPA is proposing to approve the August 6, 2015, and
December 8, 2015 submitted revisions for the SIP for New Mexico and
Albuquerque-Bernalillo County pursuant to the requirements of CAA
sections 110(a)(1) and (2) as applicable to the 2012 PM2.5
NAAQS. The Table below outlines the specific actions EPA is proposing
to approve. By this action, EPA is also approving revisions to the New
Mexico SIP regarding State Boards or the head of an executive agency
who approves CAA permits or enforcement orders for the State of New
Mexico. The SIP revisions were submitted by the State to update the SIP
with updated language from NMSA.
Table 1--Proposed Action on New Mexico Infrastructure SIP Submittal for
Various NAAQS
------------------------------------------------------------------------
2012
Element PM2.5
------------------------------------------------------------------------
(A): Emission limits and other control measures.............. A
(B): Ambient air quality monitoring and data system.......... A
(C)(i): Enforcement of SIP measures.......................... A
(C)(ii): PSD program for major sources and major A
modifications...............................................
(C)(iii): Permitting program for minor sources and minor A
modifications...............................................
(D)(i): Prohibit emissions to other states which will (1) A
significantly contribute to nonattainment of the NAAQS, (2)
interfere with maintenance of the NAAQS, (3) interfere with
PSD requirements or (4) interfere with visibility protection
(D)(ii): Interstate and International Pollution Abatement.... A
(E)(i): Adequate resources................................... A
(E)(ii): State boards........................................ A
(E)(iii): Necessary assurances with respect to local agencies A
(F): Stationary source monitoring system..................... A
(G): Emergency power......................................... A
[[Page 60939]]
(H): Future SIP revisions.................................... A
(I): Nonattainment area plan or plan revisions under part D.. +
(J)(i): Consultation with government officials............... A
(J)(ii): Public notification................................. A
(J)(iii): PSD................................................ A
(J)(iv): Visibility protection............................... +
(K): Air quality modeling and data........................... A
(L): Permitting fees......................................... A
(M): Consultation and participation by affected local A
entities....................................................
------------------------------------------------------------------------
Key to Table:
A--Proposed Approval.
+--Not germane to infrastructure SIPs.
Based upon our review of these infrastructure SIP submissions and
relevant statutory and regulatory authorities and provisions referenced
in these submissions or referenced in the Albuquerque-Bernalillo
County, New Mexico or New Mexico SIP, EPA finds that New Mexico and
Albuquerque-Bernalillo County have the infrastructure in place to
address all applicable required elements of CAA sections 110(a)(1) and
(2) to ensure that the 2012 PM2.5, NAAQS are implemented in
the state and in Albuquerque-Bernalillo County.
We are proposing to approve the submitted revisions to the New
Mexico SIP that provides emendation to the New Mexico Statutes
Annotated 1978 and update the federally approved New Mexico SIP
accordingly. Those include emendation to the following: New Mexico
Statutes at Chapter 9 Department of Environment Act Article 7A-6
Secretary; duties and general powers; and 7A-11 Cooperation with the
federal government; authority of secretary; single state agency status;
Chapter 10 Public Officers and Employees Article 16-1 through 10-16-16
Governmental Conduct; and Chapter 74 Environmental Improvement Article
1 General Provisions and Article 2 Air Pollution.
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 Statutes as described in the
Proposed Action section above. We have 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 (please
contact Ms. Sherry Fuerst 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, 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 FR3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 13, 2017.
Samuel Coleman,
Acting Regional Administrator, Region 6.
[FR Doc. 2017-27296 Filed 12-22-17; 8:45 am]
BILLING CODE 6560-50-P
