[Federal Register Volume 87, Number 123 (Tuesday, June 28, 2022)]
[Proposed Rules]
[Pages 38362-38365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13725]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2021-0772; FRL-9889-01-R6]


Air Plan Approval; New Mexico; Interstate Transport Requirements 
for 2010 Nitrogen Dioxide National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the State Implementation Plan (SIP) revision submitted by the 
State of New Mexico, through New Mexico Environment Department (NMED) 
dated June 25, 2021, for the purpose of addressing the Clean Air Act 
(CAA or ``Act'') ``good neighbor'' interstate transport (prongs 1 and 
2) infrastructure SIP requirements for the 2010 1-hour Nitrogen Dioxide 
(NO2) National Ambient Air Quality Standard (NAAQS). The CAA 
requires that each state adopt and submit a SIP for the implementation, 
maintenance, and enforcement of each NAAQS promulgated by the EPA, 
commonly referred to as an ``infrastructure SIP.'' Specifically, the 
EPA is proposing to approve New Mexico's June 25, 2021, SIP revision 
addressing prongs 1 and 2 to ensure that air emissions in the State do 
not significantly contribute to nonattainment or interfere with 
maintenance of the 2010 1-hour NO2 NAAQS in any other state. 
The EPA is proposing to approve this action pursuant to section 110 and 
part D of the CAA and the EPA's regulations.

DATES: Written comments must be received on or before July 28, 2022.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2021-0772, at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other

[[Page 38363]]

information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT SECTION. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov. While all documents in the 
docket are listed in the index, some information may not be publicly 
available due to docket file size restrictions or content (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Ms. Nevine Salem, EPA Region 6 Office, 
Infrastructure and Ozone Section, 214-665-7222, [email protected]. 
The EPA Region 6 office may be closed to the public to reduce the risk 
of transmitting COVID-19. We encourage the public to submit comments 
via https://www.regulations.gov, as there is a delay in processing mail 
and no courier or hand deliveries will be accepted. Please call or 
email the contact listed above if you need alternative access to 
material indexed but not provided in the docket.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

I. Background

    On January 22, 2010, the EPA established a new 1-hour primary NAAQS 
for NO2 at a level of 100 parts per billion (ppb), based on 
a 3-year average of the 98th percentile of the yearly distribution of 
1-hour daily maximum concentrations.\1\ See 75 FR 6474 (February 9, 
2010). This NAAQS is designed to protect against exposure to the entire 
group of nitrogen oxides (NOX). NO2 is the 
component of greatest concern and is used as the indicator for the 
larger group of NOX. Emissions that lead to the formation of 
NO2 generally also lead to the formation of other 
NOX. Therefore, control measures that reduce NO2 
can generally be expected to reduce population exposures to all gaseous 
NOX which may have the co-benefit of reducing the formation 
of ozone and fine particles both of which pose significant public 
health threats. For comprehensive information on the 2010 1-hour 
NO2 NAAQS, please refer to the February 9, 2010 Federal 
Register action. See 75 FR 6474.
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    \1\ Subsequently, after careful consideration of the scientific 
evidence and information available, on April 18, 2018, EPA published 
a final action to retain the current NO2 standard at the 
2010 level of 100 ppb. This action was taken after review of the 
full body of available scientific evidence and information, giving 
particular weight to the assessment of the evidence in the 2016 
NOX Integrated Science Assessment; analyses and 
considerations in the Policy Assessment; the advice and 
recommendations of the Clean Air Scientific Advisory Committee; and 
public comments. See 83 FR 17226 (April 18, 2018).
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    Whenever the EPA promulgates a new or revised NAAQS, CAA section 
110(a)(1) requires states to submit SIPs meeting the applicable 
requirements of section 110(a)(2) within 3 years after promulgation of 
a new or revised NAAQS or within such shorter period as the EPA may 
prescribe. Section 110(a)(2) requires states to address structural SIP 
elements such as requirements for monitoring, basic program 
requirements, and legal authority that are designed to provide for 
implementation, maintenance, and enforcement of the NAAQS. The EPA 
refers to the SIP submissions required by these provisions as 
``infrastructure SIPs.'' Section 110(a) imposes the obligation upon 
states to make an infrastructure SIP submission to the EPA for a new or 
revised NAAQS, but the contents of individual state submissions may 
vary depending upon the facts and circumstances. This proposed rule 
pertains to the infrastructure SIP requirements for interstate 
transport of air pollution. These submissions must meet the various 
requirements of CAA section 110(a)(2), as applicable.\2\
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    \2\ States were required to submit infrastructure SIPs for the 
2010 1-hour NO2 NAAQS to EPA no later than January 22, 
2013.
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    Section 110(a)(2)(D)(i) of the CAA requires SIPs to include 
provisions prohibiting any source or other type of emissions activity 
in one state from emitting any air pollutant in amounts that will 
contribute significantly to nonattainment, or interfere with 
maintenance, of the NAAQS, or interfere with measures required to 
prevent significant deterioration of air quality or to protect 
visibility in any other state. This proposed rule addresses the two 
requirements under section 110(a)(2)(D)(i)(I), which we refer to as 
prong 1 (significant contribution to nonattainment of the NAAQS in any 
other state) and prong 2 (interference with maintenance of the NAAQS in 
any other state). The EPA often refers to SIP revisions addressing the 
requirements of section 110(a)(2)(D)(i)(I) as ``interstate transport 
SIPs.''
    The EPA evaluates each state's interstate transport SIP to see how 
the state evaluates the transport of air pollution to other states for 
a given air pollutant; what types of information the state used in its 
analysis; how that analysis compares with prior EPA rulemakings, 
modeling, monitoring, and guidance; and what conclusions were drawn by 
the state. If the EPA concludes that the SIP contains adequate 
provisions to prohibit sources from emitting air pollutants that 
significantly contribute to nonattainment, or interfere with 
maintenance, of a given NAAQS in any other state, we will approve the 
state's submission with regard to prongs 1 and 2 of CAA section 
110(a)(2)(D)(i)(I).

II. State's Submittal

    On March 12, 2014, the New Mexico Environment Department (NMED) 
submitted its Infrastructure SIP to the EPA for the revised 2010 1-hour 
NO2 standard. At that time, NMED addressed the 2010 
NO2 interstate transport prongs 1 and 2 by referencing the 
EPA's November 19, 2012 Memorandum \3\ which outlined the EPA's 
intention to abide by the August 21, 2012 decision of the U.S. Court of 
Appeals for the D.C. Circuit, holding that a SIP cannot be deemed 
deficient for failing to meet the prong 1 and 2 requirements in Section 
110(a)(2)(D)(i) before the EPA quantifies the state's obligation. EME 
Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012). In the 
March 2014 submittal, the state stated that the EPA had not yet 
quantified New Mexico's interstate transport obligation under the 2010 
NO2 and therefore New Mexico's infrastructure SIP was 
adequate for section 110(a)(2)(D)(i)(I).
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    \3\ See ``Next Steps for Pending Redesignation Requests and 
State Implementation Plan Actions Affected by the Recent Court 
Decision Vacating the 2011 Cross-State Air Pollution Rule,'' signed 
by EPA Assistant Administrator Gina McCarthy November 19, 2012. This 
memorandum is in the docket for this action.
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    On April 29, 2014, the U.S. Supreme Court reversed and remanded the 
D.C. Circuit's EME Homer City ruling and upheld the EPA's approach in 
the Cross-State Air Pollution Rule. EPA v. EME Homer City Generation, 
L.P., 572 U.S. 489 (2014). As a result of the Supreme Court reversal, 
each state was again required to address the interstate transport 
requirements of 110(a)(2)(D)(i) regardless of whether the EPA had 
quantified the state's obligation. In accordance with the Supreme 
Court's

[[Page 38364]]

decision, on June 25, 2021, the state of New Mexico supplemented its 
2010 NO2 infrastructure SIP to address interstate transport 
prongs 1 and 2 of Section 110(a)(2)(D)(i), the submission supplements 
the State's prior 2014 interstate transport SIP for the NO2 
NAAQS.

III. The EPA's Evaluation

A. Evaluation for the 2010 1-Hour NO2

1. The EPA's General Approach To Evaluating the 2010 NO2
    Unlike certain other NAAQS like ozone and PM2.5, the EPA 
has not developed a recommended approach for states to use when 
addressing prongs 1 and 2 for the 2010 NO2 NAAQS. Following 
promulgation of the 2010 NO2 NAAQS, the EPA designated all 
areas of the United States as ``unclassifiable/attainment'' for this 
NAAQS because monitors throughout the country had indicated no 
violations of the NAAQS from 2008-2010.\4\ 77 FR 9532 (February 17, 
2012). Additionally, no violations occurred at any monitor in the 
country in the most recent available design value period of 2018-
2020.\5\ For these reasons, 110(a)(2)(D)(i)(I) demonstrations for 
states have been relatively straightforward because the EPA has not 
identified areas in any state to which emissions from another state 
would likely contribute significantly to nonattainment or interfere 
with maintenance.
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    \4\ For comparison with the 2010 NO2 1-hour NAAQS, a 
three-year design value is used. 40 CFR 50.11(f).
    \5\ See https://www.epa.gov/air-trends/air-quality-design-values#report. As this report indicates, no regulatory monitor in 
the U.S. recorded a design value above 80 ppb for the 2018-2020 
design value period.
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2. State's Submission
    In New Mexico's June 25, 2021, SIP revision, NMED concluded that 
its SIP adequately addresses prong 1 and 2 with respect to the 2010 1-
hour NO2 NAAQS. NMED provided the following reasons for its 
determinations: (1) all areas in the United States are designated as 
unclassifiable/attainment for the 2010 1-hour NO2 NAAQS; (2) 
there are SIP-approved and state-only regulations that directly or 
indirectly control NO2 emissions.
3. The EPA's Analysis
    In addition to the information provided in the SIP, the EPA notes 
that the highest monitored valid NO2 design values in each 
state bordering New Mexico are well below the NAAQS (see Table 1, 
below), as are the maximum single year 98th percentile values from each 
neighboring state between 2018-2020 (see Table 2, below). These facts 
further support the State's assertion that significant contribution to 
nonattainment or interference with maintenance of the NO2 
NAAQS from New Mexico is unlikely.

 Table 1--1-Hour NO2 Design Values in New Mexico and Neighboring States
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                                                        2018-2020  NO2
                        State                            design value
                                                             (ppb)
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New Mexico..........................................                  38
Arizona.............................................                  49
Colorado............................................                  52
Oklahoma............................................                  26
Texas...............................................                  32
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    Table 2--Max 98th Percentile NO2 Concentration in New Mexico and
                           Neighboring States
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                                                        Highest single
                                                           year 98th
              State                      Year          percentile value
                                                        from  2018-2020
                                                             (ppb)
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New Mexico......................                2020                  49
Arizona.........................                2018                  62
Colorado........................                2020                  71
Oklahoma........................                2018                  41
Texas...........................                2018                  69
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    With respect to prong 2 (interference with maintenance), 
specifically, in addition to the lack of areas violating the 
NO2 NAAQS, there are also no areas in neighboring states 
approaching a violation of the 2010 NO2 NAAQS (i.e., 100 
ppb) which might therefore be expected to have difficulty maintaining 
the standard. With respect to both prongs, we also note that there are 
no areas elsewhere in the United States approaching a violation of the 
2010 NO2 NAAQS.
    NMED notified the public with the publication of the notice in both 
print and online versions of the Albuquerque Journal (in English and 
Spanish). The public notice provided opportunity for comment and public 
hearing. NMED did not receive any public comment and no request for 
public hearing was received. A copy of the New Mexico SIP revision 
submittal is available online at www.regulations.gov, Docket number 
EPA-R06-OAR-2021-0772

IV. Proposed Action

    Based on our review of New Mexico's June 25, 2021, SIP revision 
submission, and our analysis of additional relevant information, we 
propose to determine that emissions from New Mexico will not 
significantly contribute to nonattainment or interfere with the 
maintenance of the 2010 NO2 NAAQS in any other state. 
Accordingly, we propose to approve the June 25, 2021, New Mexico SIP 
submission as satisfying the requirements of CAA section 
110(a)(2)(D)(i)(I) for the 2010 1-hour NO2 NAAQS interstate 
transport prongs 1 and 2. The EPA is soliciting public comments on this 
proposed action and will consider public comments received during the 
comment period.

[[Page 38365]]

V. Environmental Justice Considerations

    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
The EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.'' \6\ The EPA is 
providing additional analysis of environmental justice associated with 
this action for the purpose of providing information to the public.
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    \6\ https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
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    The EPA reviewed demographic data, which provides an assessment of 
individual demographic groups of the populations within New Mexico.\7\ 
The EPA then compared the data to the national average for each of the 
demographic groups. The results of the demographic analysis indicate 
that, for populations within New Mexico, the percentage of people of 
color (persons who reported their race as a category other than White 
alone (not Hispanic or Latino)) is significantly higher than the 
national average (63.8 percent versus 40 percent). Within people of 
color, the percentage of the population that is Hispanic or Latino is 
higher than the national averages (49.3 percent versus 18.5 percent) 
and the percentage of the population that is American Indian/Alaska 
Native is also higher than the national average (11.0 percent versus 
1.3 percent). The percentage of people living below the poverty level 
in New Mexico is higher than the national average (16.8 percent versus 
11.4 percent). The percentage of people over 25 with a high school 
diploma in New Mexico is slightly below the national average (86.5 
percent versus 88.5 percent), similarly, for the percentage with a 
bachelor's degree or higher education is slightly lower than the 
national average (28.1 percent versus 32.9 percent).
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    \7\ See the United States Census Bureau's QuickFacts on New 
Mexico at https://www.census.gov/quickfacts/fact/table/NM,US/PST045221.
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    Communities in close proximity to and/or downwind of industrial 
sources may be subject to disproportionate environmental impacts of 
NO2 emissions. Short- and/or long-term exposure to elevated 
concentrations of NO2 may contribute to the development of 
asthma and may potentially increase susceptibility to respiratory 
infections. People with asthma, as well as children and the elderly are 
generally at greater risk for the health effects of NO2.\8\ 
However, there are no areas in New Mexico or nationwide that show 
problems attaining or maintaining air quality with regard to 
NO2 emissions that may contribute to environmental and 
health impacts on all populations including minority and low-income 
population. In addition, the national average of NO2 
concentrations have decreased substantially over the years.\9\ We 
therefore conclude that this proposed rule will not have or lead to 
disproportionately high or adverse human health or environmental 
effects on communities with environmental justice concerns.
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    \8\ https://www.epa.gov/air-quality-management-process/managing-air-quality-human-health-environmental-and-economic#what (URL dated 
03/16/2022).
    \9\ See https://www.epa.gov/air-trends/nitrogen-dioxide-trends.
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VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the proposed rule does not have tribal implications and will 
not impose substantial direct costs on tribal governments or preempt 
tribal law as specified by Executive Order 13175 (65 FR 67249, November 
9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and record keeping 
requirements, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: June 22, 2022.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2022-13725 Filed 6-27-22; 8:45 am]
BILLING CODE 6560-50-P


