Air Plan Approval; New Mexico; Infrastructure for the 2015 Ozone National Ambient Air Quality Standards and Repeal of State Regulations for Total Suspended Particulate, 49057-49062 [2019-19500]
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Federal Register / Vol. 84, No. 181 / Wednesday, September 18, 2019 / Rules and Regulations
§ 721.63(a)(1), (a)(2)(i), (a)(3), when
determining which persons are
reasonably likely to be exposed as
required for § 721.63(a)(1) engineering
control measures (e.g., enclosure or
confinement of the operation, general
and local ventilation) or administrative
control measures (e.g., workplace
policies and procedures) shall be
considered and implemented to prevent
exposure, where feasible,
(b)(concentration set 1.0%), and (c).
(ii) Hazard communication.
Requirements as specified in § 721.72(a)
through (e)(concentration set 1.0%), (f),
(g)(1)(vi), (adrenal effects), (liver effects),
(g)(2)(i), (ii), (iii), (v), and (g)(5).
(iii) Industrial, commercial, and
consumer activities. Requirements as
specified in § 721.80(t) and (y)(1).
(b) Specific requirements. The
provisions of subpart A of this part
apply to this section except as modified
by this paragraph (b).
(1) Recordkeeping. Recordkeeping
requirements as specified in
§ 721.125(a) through (i) are applicable to
manufacturers and processors of this
substance.
(2) Limitations or revocation of
certain notification requirements. The
provisions of § 721.185 apply to this
section.
(3) Determining whether a specific use
is subject to this section. The provisions
of § 721.1725(b)(1) apply to paragraph
(a)(2)(iii) of this section.
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§ 721.11094 Poly(oxy-1,2ethanediyl),alpha-(2-benzoyl)-omega-[(2benzoylbenzoyl)oxy]-.
(a) Chemical substance and
significant new uses subject to reporting.
(1) The chemical substance identified as
poly(oxy-1,2-ethanediyl),alpha-(2benzoyl)-omega-[(2benzoylbenzoyl)oxy]- (PMN P–17–261;
CAS No. 1246194–73–9) is subject to
reporting under this section for the
significant new uses described in
paragraph (a)(2) of this section. The
requirements of this section do not
apply to quantities of the substance after
they have been reacted (cured).
(2) The significant new uses are:
(i) Protection in the workplace.
Requirements as specified in
§ 721.63(a)(1), (a)(2)(i), (a)(3), when
determining which persons are
reasonably likely to be exposed as
required for § 721.63(a)(1) engineering
control measures (e.g., enclosure or
confinement of the operation, general
and local ventilation) or administrative
control measures (e.g., workplace
policies and procedures) shall be
considered and implemented to prevent
exposure, where feasible,
(b)(concentration set at 1.0%), and (c).
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(ii) Hazard communication.
Requirements as specified in § 721.72(a)
through (e) (concentration set at 1.0%),
(f), (g)(1)(irritation),
(photosensitization), (g)(2)(i), (ii), (iii),
(v), and (g)(5).
(iii) Industrial, commercial, and
consumer activities. Requirements as
specified in § 721.80(f) and (q).
(b) Specific requirements. The
provisions of subpart A of this part
apply to this section except as modified
by this paragraph (b).
(1) Recordkeeping. Recordkeeping
requirements as specified in
§ 721.125(a) through (i) are applicable to
manufacturers and processors of this
substance.
(2) Limitations or revocation of
certain notification requirements. The
provisions of § 721.185 apply to this
section.
(3) Determining whether a specific use
is subject to this section. The provisions
of § 721.1725(b)(1) apply to paragraph
(a)(2)(iii) of this section.
[FR Doc. 2019–19667 Filed 9–17–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2018–0706; FRL–9998–72–
Region 6]
Air Plan Approval; New Mexico;
Infrastructure for the 2015 Ozone
National Ambient Air Quality
Standards and Repeal of State
Regulations for Total Suspended
Particulate
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
Pursuant to the Federal Clean
Air Act (CAA or the Act), the
Environmental Protection Agency (EPA)
is approving State Implementation Plan
(SIP) infrastructure certifications from
the State of New Mexico and
Albuquerque-Bernalillo County to
address CAA section 110(a)(1) and (2)
requirements for the 2015 ozone (O3)
National Ambient Air Quality Standards
(NAAQS). The submittals address how
the existing SIP provides for the
implementation, maintenance, and
enforcement of the 2015 O3 NAAQS
(infrastructure SIP or i-SIP). The i-SIP
ensures that the New Mexico SIP is
adequate to meet the state’s
responsibilities under the CAA for this
NAAQS. The EPA is also approving a
SIP revision for the repeal of the New
Mexico Ambient Air Quality Standards
SUMMARY:
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(NMAAQS) for total suspended
particulate (TSP) in the New Mexico
regulations incorporated into the SIP.
DATES: This rule is effective on October
18, 2019.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–R06–OAR–2018–0706. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
https://www.regulations.gov or in hard
copy at the EPA Region 6 Office, 1201
Elm Street, Suite 500, Dallas, Texas
75270.
FOR FURTHER INFORMATION CONTACT: Ms.
Karolina Ruan Lei, EPA Region 6 Office,
1201 Elm Street, Suite 500, Dallas, TX
75270, (214) 665–7346, ruanlei.karolina@epa.gov. To inspect the
hard copy materials, please schedule an
appointment with Ms. Karolina Ruan
Lei or Mr. Bill Deese at (214) 665–7253.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ means the EPA.
I. Background
The background for this action is
discussed in detail in our proposal
published on April 18, 2019 (84 FR
16226). In that notice we proposed to
approve the November 1, 2018, and
September 24, 2018, i-SIP certifications
submitted by the State of New Mexico
and Albuquerque-Bernalillo County,
respectively. The November 1, 2018,
and September 24, 2018, submittals
addressed the implementation,
maintenance, and enforcement of the
2015 O3 NAAQS in New Mexico,
including two of the four interstate
transport requirements (CAA section
110(a)(2)(D)(i)(II)). We also proposed to
approve a SIP revision submitted on
November 16, 2018, by the State of New
Mexico that pertains to the repeal of the
air quality standards for TSP in New
Mexico. The November 16, 2018,
submital included a demonstration that
the repeal of the TSP NMAAQS will not
interfere with the attainment and
maintenance of the NAAQS or any other
CAA requirement.
We received comments on the April
18, 2019, proposal from two
commenters on the infrastructure
portion of the action. One commenter
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was anonymous and submitted adverse
comments on several elements of the
New Mexico i-SIPs. The other
commenter was the City of Albuquerque
Environmental Health Department
(EHD), who submitted a comment letter
to correct certain statements made in the
proposal. We did not receive any
comments regarding the repeal of the
TSP NMAAQS. Our response to the
comments is provided in the section
below.
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II. Response to Comments
Comment: The commenter stated that
the EPA should disapprove the current
infrastructure SIP as it relates to
prevention of significant deterioration
(PSD) elements. The current approved
version of the New Mexico regulation
does not require ammonia as a precursor
to fine particulate matter (PM2.5)
evaluations. The commenter stated that
the EPA claims the State and County
have a ‘‘comprehensive’’ program, but
the approved regulation does not
include ammonia as a precursor. The
commenter stated that New Mexico
must update its permitting programs for
both the State and the counties.
Response: The EPA disagrees with the
comment. The EPA’s minimum
requirements for a state PSD program at
40 CFR 51.166 do not regulate ammonia
as either a precursor or a presumed
precursor for PM2.5 for PSD permitting.
Regulated precursors for PM2.5 for PSD
permitting are defined at 40 CFR
51.166(b)(49)(i)(b)(2) and (3) as sulfur
dioxide and nitrogen oxides,
respectively.1 The State of New Mexico
and Albuquerque-Bernalillo County
PSD programs were SIP-approved for
the regulation of PM2.5 and its
precursors on January 22, 2013, and
September 19, 2012, respectively (78 FR
4339 and 77 FR 58032). The New
Mexico State and County SIP-approved
PSD programs are comprehensive PSD
programs that cover all regulated
pollutants, including PM2.5 and its
applicable precursors.
Comment: The commenter stated that
New Mexico’s permitting program
requires ambient air quality modeling to
be performed ‘‘as specified in EPA’s
Guideline on Air Quality Models (EPA–
450/2–78–027R, July 1986), its
1 It should also be noted that 40 CFR
51.166(b)(49)(i)(b)(3) provides that a state may
overcome the presumption that nitrogen oxides
(NOX) is a regulated precursor if it demonstrates
NOX emissions from sources in a particular area do
not significantly contribute to that area’s ambient
PM2.5 concentrations. The PSD requirements also
include a presumption that volatile organic
compounds are not precursors to PM2.5 in any
attainment or unclassifiable area unless found to be
a significant contributor to that area’s ambient PM2.5
concentrations. See 40 CFR 51.166(b)(49)(i)(b)(4).
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revisions, or any superseding document,
and approved by the Department.’’ The
commenter stated that this text in the
regulation restricts the State from
requiring the most up-to-date modeling
as required in 40 CFR part 52, Appendix
W, which is not a ‘‘superseding
document’’, as it is a regulation
promulgated by the EPA and not a
document.
The commenter also stated that the
State’s rule appears to give the State
inappropriate director’s discretion in
the use of what air quality modeling is
used as the language ‘‘and approved by
the department’’ appears to allow the
department to disregard EPA-required
modeling if the department does not
approve of it. The commenter stated that
director’s discretion was outlawed by
the Courts in NRDC v. EPA in 2013 and
was affirmed by the EPA in its startup,
shutdown, and malfunction SIP call.
The commenter additionally stated that
this modeling problem should also
require the EPA to disapprove Element
K as well, since that also has to do with
modeling.
Response: The EPA disagrees with the
commenter that the text in the New
Mexico regulation, which the
commenter cited from 20.2.74.305 of the
New Mexico Administrative Code
(NMAC), restricts the State from
requiring the most up-to-date modeling.
The EPA notes that the commenter
likely meant to refer to 40 CFR part 51
rather than 40 CFR part 52 as there is
no Appendix W in 40 CFR part 52, and
the EPA’s Guideline on Air Quality
Models is codified at 40 CFR part 51,
Appendix W.
The general definition of the term
‘‘document’’ can mean any written,
printed, or electronic material that
provides information or conveys
thoughts or ideas. Any regulation in the
CFR is considered a document. The
EPA’s Guideline on Air Quality Models
(40 CFR part 51, Appendix W) also
refers to itself as a document at several
instances throughout its text. The most
recent version of the Guideline on Air
Quality Models is therefore a
‘‘superseding document’’ to the July
1986 Guideline on Air Quality Models
cited in the New Mexico regulations at
20.2.74.305 NMAC.
Additionally, the text in the New
Mexico regulations at 20.2.74.305
NMAC also includes any ‘‘revisions’’ to
the EPA’s Guideline on Air Quality
Models. The January 17, 2017, final rule
for the most recent update to Appendix
W is titled ‘‘Revisions to the Guideline
on Air Quality Models: Enhancements
to the AERMOD Dispersion Modeling
System and Incorporation of
Approaches To Address Ozone and Fine
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Particulate Matter’’ and contains a
description of the action in the
summary, which states that ‘‘[i]n this
action, the Environmental Protection
Agency (EPA) promulgates revisions to
the Guideline on Air Quality Models’’
(82 FR 5182). The January 17, 2017,
final rule also describes in the
background section the past revisions of
the Guideline on Air Quality Models
(Id.). Therefore, the most recent version
of the Guideline on Air Quality Models
is clearly a ‘‘revision’’ to older versions,
including the July 1986 version cited in
the New Mexico regulation, of the EPA’s
Guideline on Air Quality Models.
The EPA also disagrees with the
commenter that the provisions at
20.2.74.305 NMAC provide
inappropriate director’s discretion to the
State of New Mexico. This provision
clearly requires that modeling be
conducted pursuant to the latest version
of the EPA’s Guideline on Air Quality
Models. According to 20.2.74.305
NMAC, ‘‘[a]ny substitution or
modification of a model must be
approved by the Department’’, and
‘‘[n]otification shall be given by the
Department of such a substitution or
modification and the opportunity for
public comment provided for in
fulfilling the public notice requirements
in subsection B of 20.2.74.400 NMAC’’.
Additionally, 20.2.74.305 NMAC states
that the New Mexico Environment
Department (NMED) ‘‘will seek EPA
approval of such substitutions or
modifications’’. The provisions at
20.2.74.305 NMAC, the EPA’s
regulations at 40 CFR 51.166(l) and the
Guideline on Air Quality Models itself
provide that alternative models,
modeling scenarios, or model
substitutions may be used if approved
by the EPA. The New Mexico rule
requires an additional approval from the
state air director in addition to the EPA
before an applicant can use such an
alternative model or model substitution
for permitting.
The New Mexico regulations at
20.2.74.305 NMAC, therefore, do not
restrict the State from requiring the most
recent modeling for permitting as
required by 40 CFR 51.166(l) nor do
they provide inappropriate director’s
discretion to the State of New Mexico.
Comment: The commenter asked,
with respect to adequate funding,
whether the EPA has done a full
accounting of the department’s finances.
The commenter also asked how the EPA
can be sure that New Mexico is
collecting the correct amount in fees
from major title V sources to adequately
fund the department and stated that
there is no accounting or financial
evaluation in the docket that proves
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New Mexico or the County is adequately
funded. The commenter also asked if
they are supposed to take the State’s
word at face value.
Response: A ‘‘full accounting of the
NMED’s finances’’ is not required.
Section 110(a)(2) does not require a
specific quantitative metric or
methodology for determining adequate
resources. Section 110(a)(2)(E) requires
that the state provide necessary
assurances that the state will have
adequate funding under state law to
carry out the SIP. As mentioned in our
TSD for the proposal, to address
adequate funding, the NMED and the
EHD have the resources necessary to
carry out the SIP, which are provided
through general funds, permit fees, and
the CAA section 103 and 105 grant
processes. NMSA 1978, § 74–2–5.1(F)
provides the NMED and the EHD with
the power to accept, receive and
administer grants or other funds or gifts
from public and private agencies,
including the federal government, or
from any person. NMSA 1978, § 74–2–
7 authorizes and requires the State and
County to adopt regulations to include
for the collection of permit fees.
The State of New Mexico’s Permit Fee
System implements a fee system for all
preconstruction air permits issued by
the NMED and can be found at 20.2.75
NMAC, Construction Permit Fees. The
provisions in 20.2.75 NMAC were most
recently approved by the EPA on March
29, 2012 (77 FR 18923). In the March 29,
2012, final rule, the EPA found that the
rule and revisions to 20.2.75 NMAC met
the applicable fee-related requirements
in section 110(a)(2) of the CAA (77 FR
18923). Under the provisions of 20.2.75
NMAC, the NMED assesses fees when
an owner or operator applies for a notice
of intent, a permit to construct or
modify a source, or a revision to a
construction permit. Additionally,
annual fees are assessed for sources that
have been issued a permit under 20.2.72
NMAC, Construction Permits.
Albuquerque-Bernalillo County’s
provisions for permit fees are codified
in 20.11.2 NMAC, Fees, and 20.11.41,
Construction Permits, which were most
recently approved by the EPA on May
24, 2012, and June 29, 2017,
respectively (77 FR 30900 and 82 FR
29421). The EPA found that the
submitted rules and revisions to 20.11.2
NMAC met the applicable fee-related
requirements of section 110(a)(2) of the
CAA (76 FR 68385, November 4, 2011;
77 FR 30900, May 24, 2012). Under the
provisions of 20.11.2 NMAC, the EHD
assesses fees when an owner or operator
applies for an air permit, air permit
renewal, or air permit amendment.
Annual fees are also assessed for
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sources with existing source
registrations or permits.
The State of New Mexico and
Albuquerque-Bernalillo County each
concluded in their i-SIP submittals that
they do not anticipate a need for
additional resources to implement their
respective plans for the 2015 O3 NAAQS
beyond those which have been utilized
for the preparation of said plans, plan
revisions submitted to the EPA, and
other current programmatic demands.
Additionally, section 110(a)(2)(L)
requires SIPs to require each major
stationary source to pay permitting fees
to the permitting authority to cover the
cost of reviewing, approving,
implementing and enforcing a permit.
Section 110(a)(2) falls under title I of the
CAA and governs the implementation,
maintenance, and enforcement of the
NAAQS, in this instance 2015 O3,
through the federally approved SIP.
Section 110 and 40 CFR part 51 also
provide mechanisms for programmatic
remedies with respect to the SIP.
Furthermore, title I addresses minor and
major new source review SIP
preconstruction permits. The title V
program, by contrast, governs operating
permits and is addressed by CAA
sections 502 through 507. Any
evaluation of the title V program and
any consequent programmatic remedies
must be done pursuant to CAA section
502 and 40 CFR part 70. The scope of
this action is limited to determining
whether the New Mexico SIP meets
certain infrastructure requirements of
CAA 110(a)(2) with respect to the 2015
O3 NAAQS. The State of New Mexico
and Albuquerque-Bernalillo County’s
title V programs are not part of the New
Mexico SIP but were approved by the
EPA on November 26, 1996 (61 FR
60032). Title V fees are separate from
title I fees. As mentioned earlier in this
action, title V is subject to evaluation
under different statutory and regulatory
mechanisms provided for outside the
SIP parameters for evaluation under
CAA section 110 and 40 CFR part 51.
Therefore, the part of the comment that
questions whether New Mexico
collected the correct amount in fees
from major title V sources (Element L)
to adequately fund the department is
irrelevant to the approval of Element E.
As described in our proposal, TSD,
and previously in this response, the
EPA’s evaluation and approval of
adequate resources for the State of New
Mexico and Albuquerque-Bernalillo
County are based upon various sources
of funding, state statutes and rules
pursuant to section 110(a)(2). The EPA
has not identified sufficient information
to support the necessary finding for
disapproval with regard to adequate
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49059
funding. Also, the commenter has not
identified any flaws or specific program
deficiencies in the State’s or County’s
accounting or fee system, or description
of why we would question such. The
EPA noted no significant deficiencies,
thus indicating that both the State of
New Mexico and AlbuquerqueBernalillo County have sufficient
resources to implement their respective
SIPs. Therefore, the EPA is approving
Element E for the State of New Mexico
and Albuquerque-Bernalillo County for
meeting infrastructure requirements for
the 2015 O3 NAAQS.
Comment: The commenter stated that
in Table 1 of the proposed action, the
EPA notes that Element J as it pertains
to visibility is ‘‘not germane to
infrastructure SIPs’’. The commenter
stated that this statement is incorrect as
Element J is a necessary element that
needs to be addressed in each and every
SIP.
Response: The EPA disagrees with the
commenter that the visibility subelement of Element J needs to be
addressed in these infrastructure SIPs
from the State of New Mexico and
Albuquerque-Bernalillo County for the
2015 O3 NAAQS. Under 40 CFR part 51
subpart P, implementing the visibility
requirements of CAA title I, part C,
states are subject to requirements for
reasonably attributable visibility
impairment, new source review for
possible impacts on air quality related
values in Class I areas, and regional
haze planning. These include
timeframes for SIP submittals related to
visibility requirements. See, e.g., 40 CFR
51.308(b) (establishing a deadline for
initial SIPs to meet regional haze
requirements of December 17, 2007). As
the EPA recognized in the 2013
Infrastructure SIP Guidance, generally
speaking, when the EPA establishes or
revises a NAAQS, the visibility
requirements under part C of title I of
the Clean Air Act do not change. See
Guidance at pages 54–55.2 There are no
new visibility protection requirements
under part C as a result of the revised
NAAQS here. Therefore, there are no
newly applicable visibility protection
obligations pursuant to Element J
applicable in or to New Mexico, and
this sub-element is therefore not being
addressed in this action. We note that
the State of New Mexico and
Albuquerque-Bernalillo County each
currently have a fully approved SIP
under subpart P, addressing best
2 ‘‘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, U.S. EPA,
Office of Air Quality Planning and Standards.
September 13, 2013.
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available retrofit technology (BART) and
reasonable progress requirements as part
of their long-term strategy for improving
visibility during the first planning
period. For the State of New Mexico, see
77 FR 70693 (November 27, 2012) and
79 FR 60985 (October 9, 2014) for the
final approval of the State’s regional
haze SIP, and see 82 FR 27127 (June 14,
2017) for the final approval of the
State’s five-year progress report. For
Albuquerque-Bernalillo County, see 77
FR 71119 (November 29, 2012) for the
final approval of the County’s regional
haze SIP, and see 82 FR 58347
(December 12, 2017) for the final
approval of the County’s five-year
progress report. New Mexico and other
states are in the process of developing
SIPs for the second planning period,
which are due to the EPA on July 31,
2021. See Final Rule, Protection of
Visibility: Amendments to
Requirements for State Plans, 82 FR
3078 (January 10, 2017).
Comment: The commenter stated that
the EPA should also issue a federal plan
for the interstate transport elements, as
these elements were due in October
2018, and it is now (at the time the
comment was submitted) seven months
late, and both the EPA and New Mexico
have stated that the State does not have
an interstate transport submission
(section 110(a)(2)(D)(i)(I)) prepared by
stating ‘‘as a sufficient basis for a
submittal addressing these requirements
does not yet exist’’. The commenter
stated that since the EPA is formally
recognizing in the proposed notice that
the State has not made a submission for
the interstate transport elements, this
should be considered a finding of failure
to submit, and finalization of this
regulation should start a 24-month clock
for the EPA to issue a federal
implementation plan.
Response: In this action, the EPA is
only evaluating whether the SIP
submissions under review have met the
statutory requirements they purport to
address. Whether or not the State of
New Mexico or Albuquerque-Bernalillo
County have otherwise made a timely
submission addressing the interstate
transport elements (section
110(a)(2)(D)(i)(I)) for the 2015 O3
NAAQS infrastructure requirements is
outside the scope of this rulemaking
because the EPA is not addressing these
elements in this action. The EPA
interprets its authority under CAA
section 110(k) as affording the Agency
the discretion to approve, disapprove, or
conditionally approve, individual
elements of the New Mexico
infrastructure and transport SIP
submissions for the 2015 O3 NAAQS.
The EPA views discrete infrastructure
SIP requirements, such as the
requirements of 110(a)(2)(D)(i)(I), as
severable from other infrastructure SIP
elements and interprets section 110(k)
as allowing it to act on individual
severable elements or requirements in a
SIP submission. In short, the EPA has
the discretion under CAA section 110(k)
to act upon the various individual
elements of a state’s infrastructure SIP
submission, separately or together, as
appropriate. Here, the EPA has focused
its evaluation on the individual
infrastructure SIP elements addressed in
the SIP submissions under review. The
EPA will evaluate whether it is
necessary to issue a separate notice to
formally address the requirements of
section 110(a)(2)(D)(i)(I) in the future.
Comment: We received one comment
from the City of Albuquerque
Environmental Health Department
(EHD) stating that the EPA incorrectly
made two statements which misstate
New Mexico law in the April 18, 2019,
proposal. The EHD provided proposed
corrections to the two statements and
clarified the EHD’s authority under New
Mexico law as well as the EHD’s
relation to the New Mexico
Environmental Improvement Board
(EIB) and the Albuquerque and
Bernalillo County Joint Air Quality
Control Board (Air Board).
The EHD stated that the first incorrect
statement is: ‘‘The AQCA [New Mexico
Air Quality Control Act] and
Ordinances [Albuquerque and
Bernalillo County Joint Air Quality
Control Board Ordinances] also state
that the EHD is the administrative
agency for the EIB and give the EHD
authority to enforce air quality
regulations.’’ The EHD stated that the
statement would be correct if changed
to: ‘‘The AQCA and Ordinances also
state that the EHD is the administrative
agency for the Air Board and give the
EHD authority to enforce the Air Board’s
air quality regulations.’’
The EHD stated that the second
incorrect statement is: ‘‘[T]he AQCA
provides authority for the NMED and
the EHD to enforce the requirements of
the AQCA and any regulations of the
EIB, permits, or final compliance
orders.’’ The EHD stated that the
statement would be correct if changed
to: ‘‘[T]he AQCA provides authority for
the NMED and the EHD to enforce the
requirements of the AQCA and, within
their respective jurisdiction, any
applicable regulations, or permits, or
final compliance orders each agency
(NMED and EHD) has issued.’’
Response: The EPA agrees with the
EHD’s corrected statements of its
authority under New Mexico law.
III. Final Action
We are approving the November 1,
2018, and September 24, 2018, i-SIP
submittals pertaining to the
implementation, maintenance, and
enforcement of the 2015 O3 NAAQS,
including two of the transport subelements (CAA section
110(a)(2)(D)(i)(II)), in the State of New
Mexico and Albuquerque-Bernalillo
County. Table 1 below outlines the final
action EPA is taking on specific
infrastructure elements.
TABLE 1—FINAL ACTION ON NEW MEXICO INFRASTRUCTURE SIP SUBMITTALS FOR THE 2015 O3 NAAQS
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Element
2015 O3
(A): Emission limits and other control measures ......................................................................................................................................
(B): Ambient air quality monitoring and data systems ..............................................................................................................................
(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)(I): Prohibit emissions to other states which will (1) significantly contribute to nonattainment of the NAAQS, (2) interfere with
maintenance of the NAAQS.
(D)(i)(II): Prohibit emissions to other states which will (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 ..............................................................................................................................................................................
(H): Future SIP revisions ...........................................................................................................................................................................
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A
A
A
A
A
NA
A
A
A
A
A
A
A
A
49061
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TABLE 1—FINAL ACTION ON NEW MEXICO INFRASTRUCTURE SIP SUBMITTALS FOR THE 2015 O3 NAAQS—Continued
Element
2015 O3
(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
Key to Table: A—Approved; +—Not germane to infrastructure SIPs; NA—No action.
We are also approving the November
16, 2018, submittal which consists of a
revision to 20.2.3 NMAC (Ambient Air
Quality Standards) . The approved SIP
revision removes section 109 (Total
Suspended Particulates) from 20.2.3
NMAC, as the EPA found that such a
revision will not adversely affect the
attainment of applicable CAA
requirements.
IV. Incorporation by Reference
In this document, EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation
by reference of a revision to 20.2.3
NMAC. EPA has made, and will
continue to make, these materials
generally available through
www.regulations.gov and at the EPA
Region 6 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information)’’.
Therefore, these materials have been
approved by the EPA for inclusion in
the SIP, have been incorporated by
reference by the EPA into that plan, are
fully federally enforceable under
sections 110 and 113 of the CAA as of
the effective date of the final rulemaking
of the EPA’s approval, and will be
incorporated by reference in the next
update to the SIP compilation.
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V. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, the EPA’s role is to
approve state choices, provided that
they meet the criteria of the Clean Air
Act. Accordingly, this action merely
approves state law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this action:
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• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• 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, described in
the Unfunded Mandates Reform Act of
1995 (Pub. L. 104–4);
• Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
PO 00000
Frm 00057
Fmt 4700
Sfmt 4700
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).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by November 18,
2019. Filing a petition for
reconsideration by the Administrator of
this final rule does not affect the finality
of this action for the purposes of judicial
review nor does it extend the time
within which a petition for judicial
review may be filed, and shall not
postpone the effectiveness of such rule
or action. This action may not be
challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Ozone, Particulate matter, Reporting
and recordkeeping requirements.
Dated: August 28, 2019.
Kenley McQueen,
Regional Administrator, Region 6.
40 CFR part 52 is amended as follows:
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Federal Register / Vol. 84, No. 181 / Wednesday, September 18, 2019 / Rules and Regulations
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
Regulatory Measures in the New Mexico
SIP,’’ by adding an entry at the end for
‘‘Infrastructure for the 2015 Ozone
NAAQS’’.
The revision and addition read as
follows:
Subpart GG—New Mexico
2. Section 52.1620 is amended:
a. In paragraph (c), under the first
table titled ‘‘EPA Approved New
Mexico Regulations,’’ by revising the
entry for Part 3;
■ b. In paragraph (e), under the second
table titled ‘‘EPA-Approved
Nonregulatory Provisions and Quasi■
■
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
§ 52.1620
*
Identification of plan.
*
*
(c) * * *
*
*
EPA APPROVED NEW MEXICO REGULATIONS
State citation
State
approval/
effective
date
Title/subject
EPA approval date
Comments
New Mexico Administrative Code (NMAC) Title 20—Environment Protection Chapter 2—Air Quality
*
*
Part 3 ...........................................
*
*
*
*
Ambient Air Quality Standards ....
*
*
*
*
*
*
11/16/2018
*
*
9/18/2019, [Insert Federal Register citation].
*
*
*
*
*
(e) * * *
EPA-APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE NEW MEXICO SIP
Name of SIP provision
*
Infrastructure for the
2015 Ozone NAAQS.
Applicable geographic
or nonattainment area
*
*
Statewide ......................
[FR Doc. 2019–19500 Filed 9–17–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2019–0036; FRL–9999–67–
Region 3]
Approval and Promulgation of Air
Quality Implementation Plans;
Maryland; Infrastructure Requirements
for the 2015 Ozone National Ambient
Air Quality Standard
Environmental Protection
Agency (EPA).
ACTION: Final rule.
khammond on DSKJM1Z7X2PROD with RULES
AGENCY:
The Environmental Protection
Agency (EPA) is approving a state
implementation plan (SIP) revision
submitted by the State of Maryland for
the 2015 ozone national ambient air
quality standard (NAAQS or standard).
Whenever EPA promulgates a new or
SUMMARY:
VerDate Sep<11>2014
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State
submittal/
effective
date
9/24/2018,
11/1/2018
EPA approval date
*
*
*
*
9/18/2019, [Insert FedSIPs adopted by NMED and City of Albueral Register citation].
querque. Does not address CAA section
110(a)(2)(D)(i)(I).
revised NAAQS, states are required to
make a SIP submission showing how
the existing approved SIP has all the
provisions necessary to meet certain SIP
requirements for the new or revised
NAAQS, or to add any needed
provisions necessary to meet these
requirements. The SIP revision is
required to address basic program
elements, including, but not limited to,
regulatory structure, monitoring,
modeling, legal authority, and adequate
resources necessary to assure attainment
and maintenance of the standards.
These elements are referred to as
infrastructure requirements. Maryland
has made a submittal addressing the
infrastructure requirements for the 2015
ozone NAAQS. EPA is approving
Maryland’s SIP revision addressing the
infrastructure requirements for the 2015
ozone NAAQS in accordance with the
requirements of section 110(a) of the
Clean Air Act (CAA).
This final rule is effective on
October 18, 2019.
DATES:
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Explanation
Fmt 4700
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EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2019–0036. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., confidential business
information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
www.regulations.gov, or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional availability information.
FOR FURTHER INFORMATION CONTACT:
Ellen Schmitt, Planning &
Implementation Branch (3AD30), Air &
Radiation Division, U.S. Environmental
Protection Agency, Region III, 1650
Arch Street, Philadelphia, Pennsylvania
19103. The telephone number is (215)
ADDRESSES:
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]]>Agencies
[Federal Register Volume 84, Number 181 (Wednesday, September 18, 2019)]
[Rules and Regulations]
[Pages 49057-49062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19500]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2018-0706; FRL-9998-72-Region 6]
Air Plan Approval; New Mexico; Infrastructure for the 2015 Ozone
National Ambient Air Quality Standards and Repeal of State Regulations
for Total Suspended Particulate
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is approving State Implementation
Plan (SIP) infrastructure certifications from the State of New Mexico
and Albuquerque-Bernalillo County to address CAA section 110(a)(1) and
(2) requirements for the 2015 ozone (O3) National Ambient
Air Quality Standards (NAAQS). The submittals address how the existing
SIP provides for the implementation, maintenance, and enforcement of
the 2015 O3 NAAQS (infrastructure SIP or i-SIP). The i-SIP
ensures that the New Mexico SIP is adequate to meet the state's
responsibilities under the CAA for this NAAQS. The EPA is also
approving a SIP revision for the repeal of the New Mexico Ambient Air
Quality Standards (NMAAQS) for total suspended particulate (TSP) in the
New Mexico regulations incorporated into the SIP.
DATES: This rule is effective on October 18, 2019.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2018-0706. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through https://www.regulations.gov or
in hard copy at the EPA Region 6 Office, 1201 Elm Street, Suite 500,
Dallas, Texas 75270.
FOR FURTHER INFORMATION CONTACT: Ms. Karolina Ruan Lei, EPA Region 6
Office, 1201 Elm Street, Suite 500, Dallas, TX 75270, (214) 665-7346,
[email protected]. To inspect the hard copy materials, please
schedule an appointment with Ms. Karolina Ruan Lei or Mr. Bill Deese at
(214) 665-7253.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
I. Background
The background for this action is discussed in detail in our
proposal published on April 18, 2019 (84 FR 16226). In that notice we
proposed to approve the November 1, 2018, and September 24, 2018, i-SIP
certifications submitted by the State of New Mexico and Albuquerque-
Bernalillo County, respectively. The November 1, 2018, and September
24, 2018, submittals addressed the implementation, maintenance, and
enforcement of the 2015 O3 NAAQS in New Mexico, including
two of the four interstate transport requirements (CAA section
110(a)(2)(D)(i)(II)). We also proposed to approve a SIP revision
submitted on November 16, 2018, by the State of New Mexico that
pertains to the repeal of the air quality standards for TSP in New
Mexico. The November 16, 2018, submital included a demonstration that
the repeal of the TSP NMAAQS will not interfere with the attainment and
maintenance of the NAAQS or any other CAA requirement.
We received comments on the April 18, 2019, proposal from two
commenters on the infrastructure portion of the action. One commenter
[[Page 49058]]
was anonymous and submitted adverse comments on several elements of the
New Mexico i-SIPs. The other commenter was the City of Albuquerque
Environmental Health Department (EHD), who submitted a comment letter
to correct certain statements made in the proposal. We did not receive
any comments regarding the repeal of the TSP NMAAQS. Our response to
the comments is provided in the section below.
II. Response to Comments
Comment: The commenter stated that the EPA should disapprove the
current infrastructure SIP as it relates to prevention of significant
deterioration (PSD) elements. The current approved version of the New
Mexico regulation does not require ammonia as a precursor to fine
particulate matter (PM2.5) evaluations. The commenter stated
that the EPA claims the State and County have a ``comprehensive''
program, but the approved regulation does not include ammonia as a
precursor. The commenter stated that New Mexico must update its
permitting programs for both the State and the counties.
Response: The EPA disagrees with the comment. The EPA's minimum
requirements for a state PSD program at 40 CFR 51.166 do not regulate
ammonia as either a precursor or a presumed precursor for
PM2.5 for PSD permitting. Regulated precursors for
PM2.5 for PSD permitting are defined at 40 CFR
51.166(b)(49)(i)(b)(2) and (3) as sulfur dioxide and nitrogen oxides,
respectively.\1\ The State of New Mexico and Albuquerque-Bernalillo
County PSD programs were SIP-approved for the regulation of
PM2.5 and its precursors on January 22, 2013, and September
19, 2012, respectively (78 FR 4339 and 77 FR 58032). The New Mexico
State and County SIP-approved PSD programs are comprehensive PSD
programs that cover all regulated pollutants, including
PM2.5 and its applicable precursors.
---------------------------------------------------------------------------
\1\ It should also be noted that 40 CFR 51.166(b)(49)(i)(b)(3)
provides that a state may overcome the presumption that nitrogen
oxides (NOX) is a regulated precursor if it demonstrates
NOX emissions from sources in a particular area do not
significantly contribute to that area's ambient PM2.5
concentrations. The PSD requirements also include a presumption that
volatile organic compounds are not precursors to PM2.5 in
any attainment or unclassifiable area unless found to be a
significant contributor to that area's ambient PM2.5
concentrations. See 40 CFR 51.166(b)(49)(i)(b)(4).
---------------------------------------------------------------------------
Comment: The commenter stated that New Mexico's permitting program
requires ambient air quality modeling to be performed ``as specified in
EPA's Guideline on Air Quality Models (EPA-450/2-78-027R, July 1986),
its revisions, or any superseding document, and approved by the
Department.'' The commenter stated that this text in the regulation
restricts the State from requiring the most up-to-date modeling as
required in 40 CFR part 52, Appendix W, which is not a ``superseding
document'', as it is a regulation promulgated by the EPA and not a
document.
The commenter also stated that the State's rule appears to give the
State inappropriate director's discretion in the use of what air
quality modeling is used as the language ``and approved by the
department'' appears to allow the department to disregard EPA-required
modeling if the department does not approve of it. The commenter stated
that director's discretion was outlawed by the Courts in NRDC v. EPA in
2013 and was affirmed by the EPA in its startup, shutdown, and
malfunction SIP call. The commenter additionally stated that this
modeling problem should also require the EPA to disapprove Element K as
well, since that also has to do with modeling.
Response: The EPA disagrees with the commenter that the text in the
New Mexico regulation, which the commenter cited from 20.2.74.305 of
the New Mexico Administrative Code (NMAC), restricts the State from
requiring the most up-to-date modeling. The EPA notes that the
commenter likely meant to refer to 40 CFR part 51 rather than 40 CFR
part 52 as there is no Appendix W in 40 CFR part 52, and the EPA's
Guideline on Air Quality Models is codified at 40 CFR part 51, Appendix
W.
The general definition of the term ``document'' can mean any
written, printed, or electronic material that provides information or
conveys thoughts or ideas. Any regulation in the CFR is considered a
document. The EPA's Guideline on Air Quality Models (40 CFR part 51,
Appendix W) also refers to itself as a document at several instances
throughout its text. The most recent version of the Guideline on Air
Quality Models is therefore a ``superseding document'' to the July 1986
Guideline on Air Quality Models cited in the New Mexico regulations at
20.2.74.305 NMAC.
Additionally, the text in the New Mexico regulations at 20.2.74.305
NMAC also includes any ``revisions'' to the EPA's Guideline on Air
Quality Models. The January 17, 2017, final rule for the most recent
update to Appendix W is titled ``Revisions to the Guideline on Air
Quality Models: Enhancements to the AERMOD Dispersion Modeling System
and Incorporation of Approaches To Address Ozone and Fine Particulate
Matter'' and contains a description of the action in the summary, which
states that ``[i]n this action, the Environmental Protection Agency
(EPA) promulgates revisions to the Guideline on Air Quality Models''
(82 FR 5182). The January 17, 2017, final rule also describes in the
background section the past revisions of the Guideline on Air Quality
Models (Id.). Therefore, the most recent version of the Guideline on
Air Quality Models is clearly a ``revision'' to older versions,
including the July 1986 version cited in the New Mexico regulation, of
the EPA's Guideline on Air Quality Models.
The EPA also disagrees with the commenter that the provisions at
20.2.74.305 NMAC provide inappropriate director's discretion to the
State of New Mexico. This provision clearly requires that modeling be
conducted pursuant to the latest version of the EPA's Guideline on Air
Quality Models. According to 20.2.74.305 NMAC, ``[a]ny substitution or
modification of a model must be approved by the Department'', and
``[n]otification shall be given by the Department of such a
substitution or modification and the opportunity for public comment
provided for in fulfilling the public notice requirements in subsection
B of 20.2.74.400 NMAC''. Additionally, 20.2.74.305 NMAC states that the
New Mexico Environment Department (NMED) ``will seek EPA approval of
such substitutions or modifications''. The provisions at 20.2.74.305
NMAC, the EPA's regulations at 40 CFR 51.166(l) and the Guideline on
Air Quality Models itself provide that alternative models, modeling
scenarios, or model substitutions may be used if approved by the EPA.
The New Mexico rule requires an additional approval from the state air
director in addition to the EPA before an applicant can use such an
alternative model or model substitution for permitting.
The New Mexico regulations at 20.2.74.305 NMAC, therefore, do not
restrict the State from requiring the most recent modeling for
permitting as required by 40 CFR 51.166(l) nor do they provide
inappropriate director's discretion to the State of New Mexico.
Comment: The commenter asked, with respect to adequate funding,
whether the EPA has done a full accounting of the department's
finances. The commenter also asked how the EPA can be sure that New
Mexico is collecting the correct amount in fees from major title V
sources to adequately fund the department and stated that there is no
accounting or financial evaluation in the docket that proves
[[Page 49059]]
New Mexico or the County is adequately funded. The commenter also asked
if they are supposed to take the State's word at face value.
Response: A ``full accounting of the NMED's finances'' is not
required. Section 110(a)(2) does not require a specific quantitative
metric or methodology for determining adequate resources. Section
110(a)(2)(E) requires that the state provide necessary assurances that
the state will have adequate funding under state law to carry out the
SIP. As mentioned in our TSD for the proposal, to address adequate
funding, the NMED and the EHD have the resources necessary to carry out
the SIP, which are provided through general funds, permit fees, and the
CAA section 103 and 105 grant processes. NMSA 1978, Sec. 74-2-5.1(F)
provides the NMED and the EHD with the power to accept, receive and
administer grants or other funds or gifts from public and private
agencies, including the federal government, or from any person. NMSA
1978, Sec. 74-2-7 authorizes and requires the State and County to
adopt regulations to include for the collection of permit fees.
The State of New Mexico's Permit Fee System implements a fee system
for all preconstruction air permits issued by the NMED and can be found
at 20.2.75 NMAC, Construction Permit Fees. The provisions in 20.2.75
NMAC were most recently approved by the EPA on March 29, 2012 (77 FR
18923). In the March 29, 2012, final rule, the EPA found that the rule
and revisions to 20.2.75 NMAC met the applicable fee-related
requirements in section 110(a)(2) of the CAA (77 FR 18923). Under the
provisions of 20.2.75 NMAC, the NMED assesses fees when an owner or
operator applies for a notice of intent, a permit to construct or
modify a source, or a revision to a construction permit. Additionally,
annual fees are assessed for sources that have been issued a permit
under 20.2.72 NMAC, Construction Permits.
Albuquerque-Bernalillo County's provisions for permit fees are
codified in 20.11.2 NMAC, Fees, and 20.11.41, Construction Permits,
which were most recently approved by the EPA on May 24, 2012, and June
29, 2017, respectively (77 FR 30900 and 82 FR 29421). The EPA found
that the submitted rules and revisions to 20.11.2 NMAC met the
applicable fee-related requirements of section 110(a)(2) of the CAA (76
FR 68385, November 4, 2011; 77 FR 30900, May 24, 2012). Under the
provisions of 20.11.2 NMAC, the EHD assesses fees when an owner or
operator applies for an air permit, air permit renewal, or air permit
amendment. Annual fees are also assessed for sources with existing
source registrations or permits.
The State of New Mexico and Albuquerque-Bernalillo County each
concluded in their i-SIP submittals that they do not anticipate a need
for additional resources to implement their respective plans for the
2015 O3 NAAQS beyond those which have been utilized for the
preparation of said plans, plan revisions submitted to the EPA, and
other current programmatic demands.
Additionally, section 110(a)(2)(L) requires SIPs to require each
major stationary source to pay permitting fees to the permitting
authority to cover the cost of reviewing, approving, implementing and
enforcing a permit. Section 110(a)(2) falls under title I of the CAA
and governs the implementation, maintenance, and enforcement of the
NAAQS, in this instance 2015 O3, through the federally
approved SIP. Section 110 and 40 CFR part 51 also provide mechanisms
for programmatic remedies with respect to the SIP. Furthermore, title I
addresses minor and major new source review SIP preconstruction
permits. The title V program, by contrast, governs operating permits
and is addressed by CAA sections 502 through 507. Any evaluation of the
title V program and any consequent programmatic remedies must be done
pursuant to CAA section 502 and 40 CFR part 70. The scope of this
action is limited to determining whether the New Mexico SIP meets
certain infrastructure requirements of CAA 110(a)(2) with respect to
the 2015 O3 NAAQS. The State of New Mexico and Albuquerque-
Bernalillo County's title V programs are not part of the New Mexico SIP
but were approved by the EPA on November 26, 1996 (61 FR 60032). Title
V fees are separate from title I fees. As mentioned earlier in this
action, title V is subject to evaluation under different statutory and
regulatory mechanisms provided for outside the SIP parameters for
evaluation under CAA section 110 and 40 CFR part 51. Therefore, the
part of the comment that questions whether New Mexico collected the
correct amount in fees from major title V sources (Element L) to
adequately fund the department is irrelevant to the approval of Element
E.
As described in our proposal, TSD, and previously in this response,
the EPA's evaluation and approval of adequate resources for the State
of New Mexico and Albuquerque-Bernalillo County are based upon various
sources of funding, state statutes and rules pursuant to section
110(a)(2). The EPA has not identified sufficient information to support
the necessary finding for disapproval with regard to adequate funding.
Also, the commenter has not identified any flaws or specific program
deficiencies in the State's or County's accounting or fee system, or
description of why we would question such. The EPA noted no significant
deficiencies, thus indicating that both the State of New Mexico and
Albuquerque-Bernalillo County have sufficient resources to implement
their respective SIPs. Therefore, the EPA is approving Element E for
the State of New Mexico and Albuquerque-Bernalillo County for meeting
infrastructure requirements for the 2015 O3 NAAQS.
Comment: The commenter stated that in Table 1 of the proposed
action, the EPA notes that Element J as it pertains to visibility is
``not germane to infrastructure SIPs''. The commenter stated that this
statement is incorrect as Element J is a necessary element that needs
to be addressed in each and every SIP.
Response: The EPA disagrees with the commenter that the visibility
sub-element of Element J needs to be addressed in these infrastructure
SIPs from the State of New Mexico and Albuquerque-Bernalillo County for
the 2015 O3 NAAQS. Under 40 CFR part 51 subpart P,
implementing the visibility requirements of CAA title I, part C, states
are subject to requirements for reasonably attributable visibility
impairment, new source review for possible impacts on air quality
related values in Class I areas, and regional haze planning. These
include timeframes for SIP submittals related to visibility
requirements. See, e.g., 40 CFR 51.308(b) (establishing a deadline for
initial SIPs to meet regional haze requirements of December 17, 2007).
As the EPA recognized in the 2013 Infrastructure SIP Guidance,
generally speaking, when the EPA establishes or revises a NAAQS, the
visibility requirements under part C of title I of the Clean Air Act do
not change. See Guidance at pages 54-55.\2\ There are no new visibility
protection requirements under part C as a result of the revised NAAQS
here. Therefore, there are no newly applicable visibility protection
obligations pursuant to Element J applicable in or to New Mexico, and
this sub-element is therefore not being addressed in this action. We
note that the State of New Mexico and Albuquerque-Bernalillo County
each currently have a fully approved SIP under subpart P, addressing
best
[[Page 49060]]
available retrofit technology (BART) and reasonable progress
requirements as part of their long-term strategy for improving
visibility during the first planning period. For the State of New
Mexico, see 77 FR 70693 (November 27, 2012) and 79 FR 60985 (October 9,
2014) for the final approval of the State's regional haze SIP, and see
82 FR 27127 (June 14, 2017) for the final approval of the State's five-
year progress report. For Albuquerque-Bernalillo County, see 77 FR
71119 (November 29, 2012) for the final approval of the County's
regional haze SIP, and see 82 FR 58347 (December 12, 2017) for the
final approval of the County's five-year progress report. New Mexico
and other states are in the process of developing SIPs for the second
planning period, which are due to the EPA on July 31, 2021. See Final
Rule, Protection of Visibility: Amendments to Requirements for State
Plans, 82 FR 3078 (January 10, 2017).
---------------------------------------------------------------------------
\2\ ``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, U.S. EPA, Office of Air Quality
Planning and Standards. September 13, 2013.
---------------------------------------------------------------------------
Comment: The commenter stated that the EPA should also issue a
federal plan for the interstate transport elements, as these elements
were due in October 2018, and it is now (at the time the comment was
submitted) seven months late, and both the EPA and New Mexico have
stated that the State does not have an interstate transport submission
(section 110(a)(2)(D)(i)(I)) prepared by stating ``as a sufficient
basis for a submittal addressing these requirements does not yet
exist''. The commenter stated that since the EPA is formally
recognizing in the proposed notice that the State has not made a
submission for the interstate transport elements, this should be
considered a finding of failure to submit, and finalization of this
regulation should start a 24-month clock for the EPA to issue a federal
implementation plan.
Response: In this action, the EPA is only evaluating whether the
SIP submissions under review have met the statutory requirements they
purport to address. Whether or not the State of New Mexico or
Albuquerque-Bernalillo County have otherwise made a timely submission
addressing the interstate transport elements (section
110(a)(2)(D)(i)(I)) for the 2015 O3 NAAQS infrastructure
requirements is outside the scope of this rulemaking because the EPA is
not addressing these elements in this action. The EPA interprets its
authority under CAA section 110(k) as affording the Agency the
discretion to approve, disapprove, or conditionally approve, individual
elements of the New Mexico infrastructure and transport SIP submissions
for the 2015 O3 NAAQS. The EPA views discrete infrastructure
SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as
severable from other infrastructure SIP elements and interprets section
110(k) as allowing it to act on individual severable elements or
requirements in a SIP submission. In short, the EPA has the discretion
under CAA section 110(k) to act upon the various individual elements of
a state's infrastructure SIP submission, separately or together, as
appropriate. Here, the EPA has focused its evaluation on the individual
infrastructure SIP elements addressed in the SIP submissions under
review. The EPA will evaluate whether it is necessary to issue a
separate notice to formally address the requirements of section
110(a)(2)(D)(i)(I) in the future.
Comment: We received one comment from the City of Albuquerque
Environmental Health Department (EHD) stating that the EPA incorrectly
made two statements which misstate New Mexico law in the April 18,
2019, proposal. The EHD provided proposed corrections to the two
statements and clarified the EHD's authority under New Mexico law as
well as the EHD's relation to the New Mexico Environmental Improvement
Board (EIB) and the Albuquerque and Bernalillo County Joint Air Quality
Control Board (Air Board).
The EHD stated that the first incorrect statement is: ``The AQCA
[New Mexico Air Quality Control Act] and Ordinances [Albuquerque and
Bernalillo County Joint Air Quality Control Board Ordinances] also
state that the EHD is the administrative agency for the EIB and give
the EHD authority to enforce air quality regulations.'' The EHD stated
that the statement would be correct if changed to: ``The AQCA and
Ordinances also state that the EHD is the administrative agency for the
Air Board and give the EHD authority to enforce the Air Board's air
quality regulations.''
The EHD stated that the second incorrect statement is: ``[T]he AQCA
provides authority for the NMED and the EHD to enforce the requirements
of the AQCA and any regulations of the EIB, permits, or final
compliance orders.'' The EHD stated that the statement would be correct
if changed to: ``[T]he AQCA provides authority for the NMED and the EHD
to enforce the requirements of the AQCA and, within their respective
jurisdiction, any applicable regulations, or permits, or final
compliance orders each agency (NMED and EHD) has issued.''
Response: The EPA agrees with the EHD's corrected statements of its
authority under New Mexico law.
III. Final Action
We are approving the November 1, 2018, and September 24, 2018, i-
SIP submittals pertaining to the implementation, maintenance, and
enforcement of the 2015 O3 NAAQS, including two of the
transport sub-elements (CAA section 110(a)(2)(D)(i)(II)), in the State
of New Mexico and Albuquerque-Bernalillo County. Table 1 below outlines
the final action EPA is taking on specific infrastructure elements.
Table 1--Final Action on New Mexico Infrastructure SIP Submittals for
the 2015 O3 NAAQS
------------------------------------------------------------------------
Element 2015 O3
------------------------------------------------------------------------
(A): Emission limits and other control A
measures.
(B): Ambient air quality monitoring and data A
systems.
(C)(i): Enforcement of SIP measures......... A
(C)(ii):PSD program for major sources and A
major modifications.
(C)(iii): Permitting program for minor A
sources and minor modifications.
(D)(i)(I): Prohibit emissions to other NA
states which will (1) significantly
contribute to nonattainment of the NAAQS,
(2) interfere with maintenance of the NAAQS.
(D)(i)(II): Prohibit emissions to other A
states which will (3) interfere with PSD
requirements or (4) interfere with
visibility protection.
(D)(ii): Interstate and international A
pollution abatement.
(E)(i): Adequate resources.................. A
(E)(ii): State boards....................... A
(E)(iii): Necessary assurances with respect A
to local agencies.
(F): Stationary source monitoring system.... A
(G): Emergency power........................ A
(H): Future SIP revisions................... A
[[Page 49061]]
(I): Nonattainment area plan or plan +
revisions under part D.
(J)(i): Consultation with government A
officials.
(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 A
affected local entities.
------------------------------------------------------------------------
Key to Table: A--Approved; +--Not germane to infrastructure SIPs; NA--No
action.
We are also approving the November 16, 2018, submittal which
consists of a revision to 20.2.3 NMAC (Ambient Air Quality Standards) .
The approved SIP revision removes section 109 (Total Suspended
Particulates) from 20.2.3 NMAC, as the EPA found that such a revision
will not adversely affect the attainment of applicable CAA
requirements.
IV. Incorporation by Reference
In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of a revision to
20.2.3 NMAC. EPA has made, and will continue to make, these materials
generally available through www.regulations.gov and at the EPA Region 6
Office (please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section of this preamble for more information)''.
Therefore, these materials have been approved by the EPA for inclusion
in the SIP, have been incorporated by reference by the EPA into that
plan, are fully federally enforceable under sections 110 and 113 of the
CAA as of the effective date of the final rulemaking of the EPA's
approval, and will be incorporated by reference in the next update to
the SIP compilation.
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
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, described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 18, 2019. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Particulate matter,
Reporting and recordkeeping requirements.
Dated: August 28, 2019.
Kenley McQueen,
Regional Administrator, Region 6.
40 CFR part 52 is amended as follows:
[[Page 49062]]
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart GG--New Mexico
0
2. Section 52.1620 is amended:
0
a. In paragraph (c), under the first table titled ``EPA Approved New
Mexico Regulations,'' by revising the entry for Part 3;
0
b. In paragraph (e), under the second table titled ``EPA-Approved
Nonregulatory Provisions and Quasi-Regulatory Measures in the New
Mexico SIP,'' by adding an entry at the end for ``Infrastructure for
the 2015 Ozone NAAQS''.
The revision and addition read as follows:
Sec. 52.1620 Identification of plan.
* * * * *
(c) * * *
EPA Approved New Mexico Regulations
----------------------------------------------------------------------------------------------------------------
State
approval/
State citation Title/subject effective EPA approval date Comments
date
----------------------------------------------------------------------------------------------------------------
New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 2--Air Quality
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Part 3......................... Ambient Air 11/16/2018 9/18/2019, ............................
Quality [Insert Federal
Standards. Register
citation].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
(e) * * *
EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP
----------------------------------------------------------------------------------------------------------------
State
Applicable submittal/
Name of SIP provision geographic or effective EPA approval date Explanation
nonattainment area date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Infrastructure for the 2015 Statewide.......... 9/24/2018, 9/18/2019, [Insert SIPs adopted by NMED
Ozone NAAQS. 11/1/2018 Federal Register and City of
citation]. Albuquerque. Does not
address CAA section
110(a)(2)(D)(i)(I).
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2019-19500 Filed 9-17-19; 8:45 am]
BILLING CODE 6560-50-P
