[Federal Register Volume 75, Number 67 (Thursday, April 8, 2010)]
[Rules and Regulations]
[Pages 17868-17872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7868]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2007-0993; FRL-9134-8]
Approval and Promulgation of Implementation Plans; New Mexico;
Interstate Transport of Pollution
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the State of New Mexico for the purpose of addressing the
``good neighbor'' provisions of the Clean Air Act (CAA) section
110(a)(2)(D)(i) for the 1997 ozone standards and the 1997
PM2.5 standards. This SIP revision satisfies a portion of
the State of New Mexico's obligation to submit a SIP revision that
demonstrates that adequate provisions are in place to prohibit air
emissions from adversely affecting another state's air quality through
interstate transport. This rulemaking action is being taken under
section 110 of the CAA and addresses one element of CAA section
110(a)(2)(D)(i), which pertains to prohibiting air pollutant emissions
from within New Mexico from significantly contributing to nonattainment
of the ozone and PM2.5 NAAQS in any state.
DATES: This direct final rule will be effective June 7, 2010 without
further notice unless EPA receives relevant adverse comments by May 10,
2010. If adverse comments are received, EPA will publish a timely
withdrawal of the direct final rule in the Federal Register informing
the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2007-0993, by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD (Multimedia)'' and select
``Air'' before submitting comments.
E-mail: Mr. Guy Donaldson at [email protected]. Please
also send a copy by e-mail to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not
on legal holidays. Special arrangements should be made for deliveries
of boxed information.
Instructions: Direct your comments to Docket No. EPA-R06-OAR-2007-
0993. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Planning Section
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an
appointment. If possible, please make the appointment at least two
working days in advance of your visit. There will be a 15 cent per page
fee for making photocopies of documents. On the day of the visit,
please check in at the EPA Region 6 reception area at 1445 Ross Avenue,
Suite 700, Dallas, Texas.
The state submittal is also available for public inspection during
official business hours, by appointment, at the New Mexico Environment
Department, Air Quality Bureau, 1190 St. Francis Drive, Santa Fe, New
Mexico 87502.
FOR FURTHER INFORMATION CONTACT: Emad Shahin, Air Planning Section
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-6717; fax
number (214) 665-7263; e-mail address [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
Outline
I. What Action Is EPA Taking?
II. What Is a SIP?
III. What Is the Background for This Action?
IV. What Is EPA's Evaluation of the State's Submission?
V. Final Action
VI. Statutory and Executive Order Reviews
I. What Action Is EPA Taking?
We are approving a submission from the State of New Mexico
demonstrating that New Mexico has adequately addressed one of the
required elements of the CAA section 110(a)(2)(D)(i), the element that
prohibits air pollutant emissions from sources within a state from
significantly contributing to nonattainment of the relevant NAAQS in
any other state. We have determined that emissions from sources in New
Mexico do not significantly contribute to nonattainment of the 1997
ozone standards or of the 1997 PM2.5 standards in any other
state. The remaining three
[[Page 17869]]
elements of section 110(a)(2)(D) are SIPs addressing: (i) Interference
with the maintenance of the NAAQS in any other state; (ii) interference
with measures required to prevent significant deterioration of air
quality in any other state; and (iii) interference with measures
required to protect visibility in any other state. The aforementioned 3
elements will be evaluated and addressed in future rulemakings.
EPA is publishing this rule without prior proposal because we view
this as a noncontroversial amendment and anticipate no adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the SIP revision if adverse comments
are received. This rule will be effective on June 7, 2010 without
further notice unless we receive adverse comment by May 10, 2010. If we
receive adverse comments, we will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect. We will address all public comments in a subsequent final rule
based on the proposed rule. We will not institute a second comment
period on this action. Any parties interested in commenting must do so
at this time. Please note that if we receive adverse comment on an
amendment, paragraph, or section of this rule and if that provision may
be severed from the remainder of the rule, we may adopt as final those
provisions of the rule that are not the subject of an adverse comment.
II. What Is a SIP?
Section 110(a) of the CAA requires each state to develop a plan
that provides for the implementation, maintenance, and enforcement of
the national ambient air quality standards (NAAQS). EPA establishes
NAAQS under section 109 of the CAA. Currently, the NAAQS address six
criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead,
particulate matter, and sulfur dioxide.
The plan developed by a state is referred to as the state
implementation plan (SIP). The content of the SIP is specified in
section 110 of the CAA, other provisions of the CAA, and applicable
regulations. SIPs can be extensive, containing state regulations or
other enforceable measures and various types of supporting information,
such as emissions inventories, monitoring networks, and modeling
demonstrations.
A primary purpose of the SIP is to provide the air pollution
regulations, control strategies, and other means or techniques
developed by the state to ensure that the ambient air within that state
meets the NAAQS. However, another important aspect of the SIP is to
ensure that emissions from within the state do not have certain
prohibited impacts upon the ambient air in other states through
interstate transport of pollutants. This SIP requirement is specified
in section 110(a)(2)(D). Pursuant to that provision, each state's SIP
must contain provisions adequate to prevent, among other things,
emissions that significantly contribute to violations of the NAAQS in
any other state.
States are required to update or revise SIPs under certain
circumstances. One such circumstance is EPA's promulgation of a new or
revised NAAQS. Each state must submit these revisions to EPA for
approval and incorporation into the federally-enforceable SIP.
III. What Is the Background for This Action?
On July 18, 1997, EPA promulgated new standards for 8-hour ozone
and fine particulate matter (PM2.5). This action is being
taken in response to the July 18, 1997 revision to the 8-hour ozone
standards and PM2.5 standards. This action does not address
the requirements for the 2006 PM2.5 standards or the 2008 8-
hour ozone standards; those standards will be addressed in a later
action.
Section 110(a)(1) of the CAA requires states to submit SIPs to
address a new or revised NAAQS within 3 years after promulgation of
such standards, or within such shorter period as EPA may prescribe.
Section 110(a)(2) lists the elements that such new SIPs must address,
as applicable, including section 110(a)(2)(D)(i) which pertains to
interstate transport of certain emissions. On August 15, 2006, EPA
issued its ``Guidance for State Implementation Plan (SIP) Submission to
Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for
the 8-Hour Ozone and PM2.5 National Ambient Air Quality
Standards'' (``Guidance'') for SIP submissions that states should use
to address the requirements of section 110(a)(2)(D)(i). EPA developed
this guidance to make recommendations to states for making submissions
to meet the requirements of section 110(a)(2)(D) for the 1997 8-hour
ozone standards and 1997 PM2.5 standards.
On September 17, 2007, we received a SIP revision from the State of
New Mexico to address the requirements of section 110(a)(2)(D)(i) for
both the 1997 8-hour ozone standards and 1997 PM2.5
standards. This SIP submittal follows EPA's Guidance. As identified in
the Guidance, the ``good neighbor'' provisions in section
110(a)(2)(D)(i) require each State to submit a SIP that prohibits
emissions that adversely affect another state in the ways contemplated
in the statute. Section 110(a)(2)(D)(i) contains four distinct
requirements related to the impacts of interstate transport; however,
in this rulemaking EPA is addressing only the requirement that pertains
to preventing sources in the state from emitting pollutants in amounts
which will contribute significantly to nonattainment of the 1997 8-hour
ozone standards and 1997 PM2.5 standards in any other state.
In its submission, the State of New Mexico indicated that its current
SIP is adequate to prevent such significant contribution to
nonattainment in any other state, and thus no additional emissions
controls are necessary at this time to alleviate interstate transport.
IV. What Is EPA's Evaluation of the State's Submission?
In accordance with EPA's Guidance, the State of New Mexico has made
a SIP submission addressing interstate transport for the 1997 8-hour
ozone standards and 1997 PM2.5 standards. The State has made
a showing that emissions from New Mexico do not significantly
contribute to violations of either NAAQS in other states by two
different means. For PM2.5 the State has relied primarily
upon technical analysis performed by EPA in connection with another
regional rulemaking that addresses interstate transport. For ozone, the
State has relied primarily on additional modeling to address the extent
of interstate transport. We believe that the submission adequately
establishes that emissions from New Mexico do not significantly
contribute to violations of either NAAQS in other states, for the
reasons explained below.
To support a determination of no ``significant contribution'' for
the 1997 PM2.5 standards, the state has relied on EPA's
Clean Air Interstate Rule (CAIR) \1\ analysis. This approach is
consistent with EPA's Guidance to states for this SIP submission. In
CAIR, EPA evaluated which states significantly contribute to violations
of the 1997 8-hour ozone standards and 1997 PM2.5 standards
in other states. Based upon its analysis, EPA did not include New
Mexico in the CAIR region. In the CAIR preamble, EPA provided its
rationale for the exclusion
[[Page 17870]]
of the western states, including New Mexico, from further consideration
of transport for 8-hour ozone and PM2.5 and the requirements
of CAIR.
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\1\ See, ``Rule to Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162 (May 12, 2005). Information regarding CAA
section 110(a)(2)(D) SIPs can be found beginning of page 25263.
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The ``Technical Support Document for the Interstate Air Quality
Rule Air Quality Modeling Analysis'', January 2004 (available at http://www.epa.gov/cair/technical.html) contains documentation of the
modeling used to support CAIR. This modeling included an analysis of
the maximum impact of emissions from States without CAIR controls
applied on areas projected in PM2.5 nonattainment in 2010. A
maximum impact level of 0.15 [micro]g/m\3\ was considered significant
for this analysis (Note: In the final CAIR EPA changed the maximum
impact level for this significance test to 0.20 [micro]g/m\3\). EPA's
modeling indicated that the maximum impact from emissions from sources
in New Mexico on any projected nonattainment area in another state was
0.03 [micro]g/m\3\. This value is 20% of the significant impact level
that EPA used in the CAIR proposal, and therefore EPA determined that
emissions from the state of New Mexico do not significantly contribute
to pollutant levels in any area projected to be nonattainment of the
PM2.5 standard in that analysis.
CAIR was remanded by the U.S. Court of Appeals for the District of
Columbia, and EPA is currently in the process of developing a
replacement rule to address interstate transport for the 1997 8-hour
ozone and 1997 PM2.5 standards. We do not believe that the
CAIR remand affects New Mexico's reliance on EPA's CAIR analysis for
the purpose of evaluating New Mexico's PM 2.5 impacts on
other states. Specifically, EPA's modeling was conducted without
including the impact of any CAIR controls, and thus the evaluation is
not impacted by any uncertainty in the implementation of CAIR controls
due to the remand. Also, despite remand of the CAIR rules, EPA's
reliance on the maximum impact level of 0.20 [micro]g/m\3\ as the
cutoff for the inclusion of a state in the CAIR region was upheld by
the court. Therefore, with respect to the 1997 PM2.5
standards, we believe that New Mexico's submission adequately
establishes that sources in that state are not significantly
contributing to violations of that NAAQS in any other state.
To support a determination of no ``significant contribution'' for
the 8-hour ozone NAAQS, New Mexico could not rely upon EPA's CAIR
analysis because western states including New Mexico were not included
in the area modeled for ozone. Instead, New Mexico provided an
additional modeling analysis of the impact of emissions from the state
on projected 8-hour ozone nonattainment in downwind states. We note
that modeling is not necessarily required to support this type of SIP
submission, but this approach is consistent with EPA's Guidance to
states for this SIP submission.
The modeling relied upon by the state is described in greater
detail in its technical support document in the submission, and is
available at http://www.regulations.gov, Docket No. EPA-R06-OAR-2007-
0993. We note that EPA assisted the state with this analysis, including
the development of the modeling demonstration. In order to develop a
model scenario that could evaluate New Mexico's impacts, the state and
EPA determined that it was appropriate to rely on data developed by the
Central Regional Air Planning Association (CENRAP). Modeling was
conducted using a 2002 third quarter CENRAP modeling dataset that
included New Mexico in the modeling domain. While a more recent dataset
might be assumed to be more appropriate to support this action, a 2010
dataset was not available from CENRAP. However, we believe that the use
of the 2002 dataset is adequate to evaluate the degree of contribution
of New Mexico emissions sources to violations of the 1997 8-hour ozone
standards. Because the analysis is based on year 2002 emissions, we
believe it is a conservative estimate of potential transport impacts in
2010, as New Mexico's emissions have been decreasing since 2002 due to
various recent federal control programs (including On-Road and Nonroad
reductions). This trend is confirmed by available 2005 inventory. In
other words, if data from 2002 establish that there is no significant
contribution to violations of the 1997 8-hour ozone standards in other
states, then New Mexico sources would have even lower impacts currently
and consequently no significant contribution.
In the Guidance, we recommended a number of ways that states might
elect to evaluate whether or not there is significant contribution, and
we suggested that states might consider assessing the potential for
contribution using assumptions similar to those used by EPA in CAIR.
The state's analysis considered three factors comparable to those used
by EPA as screening criteria in determining significance for states in
CAIR: (a) The magnitude of the contribution, (b) the frequency of the
contribution, and (c) the relative amount of contribution. The
additional modeling yielded consistent results showing New Mexico
emissions do not contribute significantly to 8-hour ozone nonattainment
in any of the areas analyzed. New Mexico's highest overall contribution
to total nonattainment for any nonattainment area at the time of the
modeling was for Dallas/Fort Worth. New Mexico's highest impact on the
Dallas/Fort Worth area was a daily average contribution of 0.4%, with a
contribution average of 0.4 ppb. By EPA's own metrics (as established
in CAIR and upheld by the court), these impacts are considered to be
small and infrequent and well below screening criteria established at
1% and 2 ppb, respectively. Moreover, not a single metric of the three
contribution factors was found to be above the significance threshold
established by EPA for any of the downwind counties. For more details
please see the document titled ``Modeling Data and Report for New
Mexico from EPA Regions 6 and 7'' that is included in the docket
materials for this action.
At the time the modeling was performed, Denver's air quality was
meeting the standard. (The 2004-2006 8-Hour Ozone Design Value (DV) was
81 ppb). Therefore the state did not evaluate New Mexico's ozone
impacts on Denver. Denver had a very high ozone season in 2007 that
temporarily pushed the area into nonattainment. The preliminary 2007-
2009 DV (awaiting final data validation) is 82 ppb so the area appears
to now be back in attainment. The preliminary 2007-2009 DV is based
upon 4th High values of 90 ppb in 2007, 79 ppb in 2008, and 79 ppb in
2009 (preliminary). With the last two 4th Highs of 79 ppb, Denver would
have to monitor a 4th High value of 97 ppb in 2010 to go back into
nonattainment for the period 2008-2010. Denver has not had a 4th High
value of more than 92 ppb in the last 15 years, so it is unlikely that
Denver will be in nonattainment at the end of the 2010 ozone season for
the 84 ppb standard. Since based on preliminary 2007-2009 data, Denver
is attaining the standard, New Mexico's emissions should not be
considered as contributing to nonattainment in Denver.
With respect to the 1997 8-hour ozone standards, we believe that
New Mexico's submission adequately establishes that sources in that
state are not significantly contributing to violations of that NAAQS in
any other state. As noted previously, EPA will be acting on the other
elements of Section 110(a)(2)(D)(i) in separate rulemakings.
V. Final Action
We are approving revisions to the New Mexico SIP which adequately
demonstrates that air pollutant emissions from sources within New
[[Page 17871]]
Mexico do not add significantly to nonattainment of the relevant NAAQAS
on any other state.
Based on the information provided by NMED in the technical
demonstration, it has sufficiently been demonstrated that emissions
from New Mexico do not significantly contribute to downwind
nonattainment. Thus, EPA concludes that the New Mexico SIP complies
with CAA section 110(a)(2)(D)(i)(I).
VI. 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, 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 Order
12866 (58 FR 51735, October 4, 1993);
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 Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
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 June 7, 2010. 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, Volatile organic compounds.
Dated: March 30, 2010.
Al Armendariz,
Regional Administrator, Region 6.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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. The second table in Sec. 52.1620(e) entitled ``EPA Approved
Nonregulatory Provisions and Quasi-Regulatory Measures in the New
Mexico SIP'' is amended by adding an entry to the end to read as
follows:
Sec. 52.1620 Identification of plan.
* * * * *
(e) * * *
EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP
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State
Name of SIP provision Applicable geographic submittal/ EPA approval date Explanation
or nonattainment area effective date
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* * * * * * *
CAA 110(a)(2)(D)(i)(I) SIP-- New Mexico........... 09/17/07 04/08/10 [insert FR ..............
Interstate Transport. page number where
the document begins].
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[[Page 17872]]
[FR Doc. 2010-7868 Filed 4-7-10; 8:45 am]
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