[Federal Register Volume 88, Number 44 (Tuesday, March 7, 2023)]
[Proposed Rules]
[Pages 14095-14104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04634]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2022-0927; FRL-10657-01-R6]


Determination of Attainment by the Attainment Date But For 
International Emissions for the 2015 Ozone National Ambient Air Quality 
Standard; El Paso-Las Cruces, Texas-New Mexico

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or ``Agency'') is 
proposing to determine that the El Paso-Las Cruces, Texas-New Mexico 
nonattainment area would have attained the 2015 ozone national ambient 
air quality standard (NAAQS) by the August 3, 2021 ``Marginal'' area 
attainment date, but for emissions emanating from outside the United 
States. If we finalize this action as proposed, the El Paso-Las Cruces, 
Texas-New Mexico ozone nonattainment area would no longer be subject to 
the Clean Air Act (CAA) requirements pertaining to reclassification 
upon failure to attain and therefore would remain classified as a 
Marginal nonattainment area for the 2015 ozone NAAQS. This action, if 
finalized as proposed, will discharge the EPA's statutory obligation to 
determine whether the El Paso-Las Cruces, Texas-New Mexico ozone 
nonattainment area attained the NAAQS by the attainment date.

DATES: Written comments must be received on or before April 6, 2023.

ADDRESSES: Submit your comments, identified by Docket No. [EPA-R06-OAR-
2022-0927], at https://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Sherry Fuerst, (214)665-
6252, [email protected]. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://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: Sherry Fuerst, EPA Region 6 Office, 
AR-SI, 214-665-6465, [email protected]. We encourage the public to 
submit comments via https://www.regulations.gov. 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

A. 2015 Ozone National Ambient Air Quality Standard and Area 
Designations

    Ground-level ozone pollution is formed from the reaction of 
volatile organic compounds (VOC) and oxides of nitrogen 
(NOX) in the presence of sunlight. These two pollutants, 
referred to as ozone precursors, are emitted by many types of sources, 
including on-road and non-road motor vehicles and engines, power plants 
and industrial facilities, and smaller area sources such as lawn and 
garden equipment and paint operations. Scientific evidence indicates 
that adverse public health effects occur following exposure to ground-
level ozone pollution. Exposure to ozone can harm the respiratory 
system (the upper airways and lungs), can aggravate asthma and other 
lung diseases, and is linked to premature death from respiratory 
causes. People most at risk from breathing air containing ozone include 
people with asthma, children, older adults and people who are active 
outdoors, especially outdoor workers.\1\
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    \1\ EPA Fact Sheet--Ozone and Health, available at https://www.epa.gov/sites/default/files/2016-04/documents/20151001healthfs.pdf and in the docket for this action.
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    Under CAA section 109, the EPA promulgates NAAQS (or ``standards'') 
for pervasive air pollutants, such as ozone. The EPA has previously 
promulgated NAAQS for ozone in 1979, 1997, and 2008.\2\ On October 26, 
2015, the EPA revised the NAAQS for ozone to establish a new 8-hour 
standard.\3\ In that action, the EPA promulgated identical revised 
primary and secondary ozone standards designed to protect public health 
and welfare that specified an 8-hour ozone level of 0.070 parts per 
million (ppm, 70 ppb).\4\ Specifically, the standard requires that the 
3-year average of the annual fourth highest daily maximum 8-hour 
average ozone concentration (i.e., the design value) may not exceed 
0.070 ppm.\5\ When the design value does not exceed 0.070 ppm at each 
ambient air quality monitoring site within the area, the area is deemed 
to be attaining the ozone NAAQS.\6\
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    \2\ 44 FR 8202 (February 8, 1979), 62 FR 38856 (July 18, 1997), 
and 73 FR 16436 (March 27, 2008).
    \3\ 80 FR 65452
    \4\ Because the 2015 primary and secondary NAAQS for ozone are 
identical, for convenience, the EPA refers to them in the singular 
as ``the 2015 ozone NAAQS'' or as ``the standard.''
    \5\ A design value is a statistic used to compare data collected 
at an ambient air quality monitoring site to the applicable NAAQS to 
determine compliance with the standard. The design value for the 
2015 ozone NAAQS is the 3-year average of the annual fourth highest 
daily maximum 8-hour average ozone concentration. The design value 
is calculated for each air quality monitor in an area and the area's 
design value is the highest design value among the individual 
monitoring sites in the area. Because the design value is based on 
the three most recent, complete calendar years of data, attainment 
must occur no later than December 31 of the year prior to the 
attainment date (i.e., December 31, 2020, in the case of the El Paso 
Las Cruces Texas- New Mexico Marginal nonattainment area for the 
2015 ozone NAAQS). As such, the EPA's proposed determination is 
based upon the complete, quality-assured, and certified ozone 
monitoring data from calendar years 2018, 2019, and 2020.
    \6\ The data handling convention in 40 CFR 50 Appendix U 
dictates that concentrations shall be reported in ``ppm'' to the 
third decimal place, with additional digits to the right being 
truncated. Thus, a computed 3-year average ozone concentration of 
0.071 ppm is greater than 0.070 ppm and would exceed the standard, 
but a design value of 0.0709 is truncated to 0.070 and attains the 
2015 ozone NAAQS.
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    Section 107(d) of the CAA provides that when the EPA promulgates a 
new or revised NAAQS, the Agency must designate areas of the country as 
nonattainment, attainment, or unclassifiable based on whether an area 
is not meeting (or is contributing to air

[[Page 14096]]

quality in a nearby area that is not meeting) the NAAQS, meeting the 
NAAQS, or cannot be classified as meeting or not meeting the NAAQS, 
respectively. Title I of the CAA, Part D, Subpart 2 governs the 
classification, state planning, and emissions control requirements for 
any area designated as nonattainment for a revised primary ozone NAAQS. 
Specifically, CAA section 181(a)(1) requires the EPA to further 
classify each ozone nonattainment area at the time of designation, 
based on the extent of the area's exceedance of the NAAQS. 
Classifications for ozone nonattainment areas range from ``Marginal'' 
to ``Extreme''. CAA section 182 provides the specific attainment 
planning and additional requirements that apply to each ozone 
nonattainment area based on its classification. CAA section 182, as 
interpreted in the EPA's implementing regulations at 40 Code of Federal 
Regulations (CFR) sections 51.1308 through 51.1317, also establishes 
the timeframes by which air agencies must submit and implement SIP 
revisions to satisfy the applicable attainment planning elements and by 
which nonattainment areas must attain the 2015 ozone NAAQS.
    Effective on August 3, 2018, the EPA designated 52 areas throughout 
the country, including the ``Sunland Park Area,'' a portion of 
Do[ntilde]a Ana County, New Mexico, nonattainment for the 2015 ozone 
NAAQS.\7\ With the initial designation action, EPA classified the 
Sunland Park Area as Marginal by operation of law. Effective December 
30, 2021, the EPA expanded the boundary of the existing Sunland Park 
nonattainment area to include El Paso County, TX creating the El Paso-
Las Cruces, Texas-New Mexico multi-state nonattainment area. The 
Marginal area classification remained with the inclusion of the revised 
nonattainment boundary.
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    \7\ 83 FR 25776 (June 4, 2018). The EPA later designated the San 
Antonio area as a 2015 ozone NAAQS nonattainment area effective 
September 24, 2018. 83 FR 35136 (July 25, 2018).
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B. Clean Air Act Requirements for Marginal Ozone Nonattainment Areas

    Marginal nonattainment areas must address the following 
requirements in their SIP submission: the baseline emissions inventory, 
source emissions statements, and nonattainment new source review 
program requirements. The New Mexico Environment Department (NMED) has 
provided SIP submittals to the EPA addressing these requirements for 
the Sunland Park portion of the nonattainment area and the EPA has 
approved the SIP submittals.\8\ On December 7, 2022, the Texas 
Commission on Environmental Quality (TCEQ) submitted to EPA a SIP to 
address the El Paso County portion of the marginal nonattainment area 
requirements, specifically the emission inventory, emission statement 
and new source review program requirements.
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    \8\ 87 FR 12592, March 7, 2022.
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    Transportation and general conformity apply within the El Paso-Las 
Cruces, Texas-New Mexico multi-state nonattainment area under section 
176(c) of the CAA and the federal regulations for transportation 
conformity (40 CFR 93 subpart A) and general federal actions (40 CFR 93 
subpart B). This action, if finalized, would not affect the 
applicability of these regulations within the El Paso-Las Cruces, 
Texas-New Mexico nonattainment area.
    As described in the 2015 Ozone NAAQS Implementation Rule, CAA 
section 182(a) does not require states to implement reasonably 
available control measures (RACM) or reasonably available control 
technology (RACT) in Marginal ozone nonattainment areas, and nothing in 
section 179B alters the statutory requirements with respect to RACM/
RACT obligations in subpart 2.\9\
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    \9\ 83 FR 62998, 63010 (December 6, 2018).
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C. Requirement for Determination of Attainment of the 2015 Ozone NAAQS

    CAA section 181(b)(2)(A) requires that within 6 months following 
the applicable attainment date, the EPA shall determine whether an 
ozone nonattainment area attained the standard based on the area's 
design value as of the attainment date. If the EPA determines that an 
area failed to attain, CAA section 181(b)(2)(A) requires the area to be 
reclassified by operation of law to the higher of: (1) the next higher 
classification for the area or (2) the classification applicable to the 
area's design value as of the determination of failure to attain.\10\ 
CAA section 181(b)(2)(B) requires the EPA to publish the determination 
of failure to attain and accompanying reclassification in the Federal 
Register no later than 6 months after the attainment date, which in the 
case of the El Paso-Las Cruces, Texas-New Mexico nonattainment area was 
February 3, 2022.
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    \10\ If the EPA were to determine that the El Paso-Las Cruces, 
Texas-New Mexico multi-state nonattainment area failed to attain by 
the attainment date, it would be classified to the next highest 
classification of Moderate. The reclassified area would then be 
subject to the Moderate area requirement to attain the 2015 ozone 
NAAQS as expeditiously as practicable, but not later than August 3, 
2024.
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    The EPA's proposed determination that the El Paso-Las Cruces, 
Texas-New Mexico nonattainment area would have attained the 2015 ozone 
standard but for international emissions is based in part upon data 
that have been collected and quality-assured by NMED and TCEQ in 
accordance with 40 CFR part 58 and recorded in EPA's Air Quality System 
(AQS) database.\11\
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    \11\ The EPA maintains the AQS, a database that contains ambient 
air pollution data collected by the EPA, state, local, and tribal 
air pollution control agencies. The AQS also contains meteorological 
data, descriptive information about each monitoring station 
(including its geographic location and its operator) and data 
quality assurance/quality control information. The AQS data are used 
to (1) assess air quality, (2) assist in attainment/non-attainment 
designations, (3) evaluate SIPs for non-attainment areas, (4) 
perform modeling for permit review analysis, and (5) prepare reports 
for Congress as mandated by the CAA. Access is through the website 
at https://www.epa.gov/aqs.
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    The El Paso-Las Cruces, Texas-New Mexico Marginal nonattainment 
area's attainment date was August 3, 2021. Because the design value is 
based on the three most recent, complete calendar years of data, 
attainment must occur no later than December 31st of the year prior to 
the attainment date. For the El Paso-Las Cruces Texas-New Mexico 
Marginal nonattainment area, attainment must occur by December 31, 2020 
based on complete data from 2018-2020. Ambient air quality monitoring 
data must meet the data completeness requirements in Appendix U.\12\ 
The completeness requirements are met for the 3-year period at a 
monitoring site if daily maximum 8-hour average concentrations of ozone 
are available for at least 90 percent of the days within the ozone 
monitoring season, on average, for the 3-year period, and no single 
year has less than 75 percent data completeness. The EPA's proposed 
action for the El Paso-Las Cruces, Texas-New Mexico nonattainment area 
is based upon the complete, quality-assured, and certified ozone 
monitoring data from calendar years 2018, 2019, and 2020. The design 
value for this period is 78 ppb, indicating that the El Paso-Las 
Cruces, Texas-New Mexico nonattainment area was not in attainment of 
the 2015 ozone NAAQS on its August 3, 2021 attainment date.
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    \12\ 40 CFR part 50, Appendix U section 4(b).
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D. International Transport and Requirements for Clean Air Act Section 
179B

    Anthropogenic emissions sources outside of the U.S. can affect to 
varying degrees the ability of some air agencies to attain and maintain 
the 2015 ozone NAAQS in areas within their jurisdiction. CAA section 
179B(b) provides that where a state

[[Page 14097]]

demonstrates to the Administrator's satisfaction that an ozone 
nonattainment area would have attained the NAAQS by the applicable 
attainment date but for emissions emanating from outside the United 
States (U.S.), that area shall not be subject to the mandatory 
reclassification provisions of CAA section 181(b)(2).
    CAA section 179B provides the EPA with authority to consider 
impacts from international emissions in two contexts: (1) a 
``prospective'' state demonstration submitted as part of an attainment 
plan, which the EPA considers when determining whether the SIP 
adequately demonstrates that a nonattainment area will attain the NAAQS 
by its future attainment date (CAA section 179B(a)); or (2) a 
``retrospective'' state demonstration, which the EPA considers after 
the attainment date in determining whether a nonattainment area would 
have attained the NAAQS by the attainment date (CAA section 179B(b)). 
Since the attainment date for the multistate area has already passed, 
both New Mexico and Texas have submitted a retrospective 179B 
demonstration.
    CAA section 179B(b) provides that, ``any State that establishes to 
the satisfaction of the Administrator that . . . such State would have 
attained the national ambient air quality standard for ozone by the 
applicable attainment date, but for emissions emanating from outside of 
the United States,'' \13\ shall not be subject to reclassification to a 
higher classification by operation of law, as required in CAA section 
181(b)(2).\14\ The EPA refers to demonstrations developed under CAA 
section 179B(b) as ``retrospective'' demonstrations because they 
involve analyses of past air quality (e.g., air quality data from the 
years evaluated for determining whether an area attained by the 
attainment date). Thus, an EPA-approved retrospective demonstration 
provides relief from reclassification that would have resulted from the 
EPA determining that the area failed to attain the NAAQS by the 
relevant attainment date.
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    \13\ CAA Section 179B(b) (emphasis added).
    \14\ The EPA's longstanding view is that CAA section 179B(b) 
contains an erroneous reference to section 181(a)(2), for ozone 
nonattainment areas. See ``State Implementation Plans; General 
Preamble for the Implementation of Title I of the Clean Air Act 
Amendments of 1990,'' 57 FR 13498, 13569, footnote 41 (April 16, 
1992).
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    The 2015 Ozone NAAQS Implementation Rule provided guidance on how 
the EPA planned to implement section 179B. In the preamble to the rule, 
the EPA confirmed that: (1) only areas classified Moderate and higher 
must show that they have implemented RACM/RACT; (2) CAA section 179B 
demonstrations are not geographically limited to nonattainment areas 
adjoining an international border; and (3) a state demonstration 
prepared under CAA section 179B can consider emissions emanating from 
sources in North America (i.e., Canada or Mexico) or sources on other 
continents.\15\ In the preamble to that rule, the EPA encouraged air 
agencies to consult with the appropriate EPA regional office to 
determine technical requirements for the CAA section 179B 
demonstrations. In addition, the EPA noted its development of 
supplementary technical information and guidance to assist air agencies 
in preparing demonstrations that meet the requirements of CAA section 
179B.
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    \15\ 83 FR 62998, 63009.
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    The EPA issued more detailed guidance regarding CAA section 179B on 
December 18, 2020, that includes recommendations to assist state, 
local, and tribal air agencies that intend to develop a CAA section 
179B demonstration (``179B Guidance'').\16\ The 179B Guidance describes 
and provides examples of the kinds of information and analyses that the 
EPA recommends air agencies consider for inclusion in a CAA section 
179B demonstration.
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    \16\ Guidance on the Preparation of Clean Air Act Section 179B 
Demonstrations for Nonattainment Areas Affected by International 
Transport of Emissions'' issued on December 18, 2020; available at: 
https://www.epa.gov/sites/default/files/2020-12/documents/final_caa_179b_guidance_december_2020_with_disclaimer_ogc.pdf. The 
EPA also issued a notice of availability in the Federal Register on 
January 7, 2021 (86 FR 1107).
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    In the 179B Guidance, the EPA confirmed that while approval of a 
CAA section 179B demonstration provides specific forms of regulatory 
relief for air agencies, the EPA's approval does not relieve air 
agencies from obligations to meet the remaining applicable planning or 
emission reduction requirements in the CAA. It also does not provide a 
basis either for excluding air monitoring data influenced by 
international transport from regulatory determinations related to 
attainment and nonattainment, or for redesignating an area to 
attainment. The 179B demonstration is subject to a public notice and 
comment process before the EPA makes a final determination on the 
adequacy of the demonstration. EPA may consider a 179B demonstration 
when taking action to determine whether the area attained by the 
attainment date and is subject to reclassification.
    Because the wording in CAA section 179B(b) is in the past tense, it 
is reasonable for the EPA to conclude that such demonstrations should 
be retrospective in nature. In other words, the demonstration should 
include analyses showing that the air quality data on specific days in 
the time period used to assess attainment were affected by 
international emissions to an extent that prevented the area from 
attaining the standard by the attainment date.\17\ By definition, 
states can only make such a demonstration after air quality data 
collected pursuant to federal reference or equivalent monitoring 
methods are certified and indicate that the area failed to attain by 
the attainment date. Where the EPA approves a state's CAA section 
179B(b) retrospective demonstration, the area retains its nonattainment 
designation and is still subject to all applicable requirements for the 
area's current classification but is not subject to the applicable 
requirements for any higher classification.18 19
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    \17\ 179B Guidance, 15-16.
    \18\ ID at 3.
    \19\ As noted in our 179B Guidance, an air agency with a 
Marginal ozone nonattainment area that is affected by international 
emissions may wish to evaluate whether implementing emission 
reduction measures on domestic sources in the nonattainment area can 
bring the area into attainment because, until the area attains the 
NAAQS and the EPA approves an air agency submission addressing the 
redesignation criteria of CAA section 107(d)(3)(E), the area will 
continue to be subject to nonattainment area requirements, including 
nonattainment new source review. Id. at 17.
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    The EPA recognizes that the relationship between certain NAAQS 
exceedances and associated international transport is clearer in some 
cases than in others. The following characteristics would suggest the 
need for a more detailed demonstration with additional evidence: (1) 
affected monitors are not located near an international border; (2) 
specific international sources and/or their contributing emissions are 
not identified or are difficult to identify; (3) exceedances on 
internationally influenced days are in the range of typical exceedances 
attributable to local sources; and (4) exceedances occurred in 
association with other processes and sources of pollutants, or on days 
where meteorological conditions were conducive to local pollutant 
formation (e.g., for ozone, clear skies and elevated temperatures).
    Given the extensive number of technical factors and meteorological 
conditions that can affect international transport of air pollution, 
the EPA evaluates CAA section 179B demonstrations based on the weight 
of evidence of all information and analyses provided by an air agency. 
The appropriate level of supporting

[[Page 14098]]

documentation will vary on a case-by-case basis depending on the nature 
and severity of international influence as well as the factors 
identified above. The EPA considers and qualitatively weighs all 
evidence based on its relevance to CAA section 179B and the nature of 
international contributions as described in the demonstration's 
conceptual model. Every demonstration should include fact-specific 
analyses tailored to the nonattainment area in question. When a CAA 
section 179B demonstration shows that international contributions are 
larger than domestic contributions, the weight of evidence will be more 
compelling than if the demonstration shows domestic contributions 
exceeding international contributions. In contrast, when a CAA section 
179B demonstration shows that international emissions have a lower 
contribution to ozone concentrations than domestic emissions and/or 
international transport is not significantly different on local 
exceedance days compared to non-exceedance days, then the weight of 
evidence would not support approval of a 179B demonstration.
    In evaluating a CAA section 179B demonstration, the EPA also 
considers what measures an air agency has implemented to control local 
emissions. At a minimum, states are still subject to all requirements 
applicable to the area based on its nonattainment classification. For 
the EPA to approve a state's CAA section 179B retrospective 
demonstration, the weight of evidence should show the area could not 
attain with on-the-books measures and potential reductions associated 
with the controls required to be implemented by the attainment date but 
for international emissions. Because CAA section 179B does not relieve 
an air agency of its planning or control obligations, the air agency 
should show that it has implemented all required emissions controls at 
the local level as part of its demonstration.

II. El Paso-Las Cruces, Texas-New Mexico Ozone Determination of 
Attainment ``But For'' International Emissions

A. El Paso-Las Cruces, Texas-New Mexico Nonattainment Area

    The El Paso-Las Cruces, Texas-New Mexico nonattainment Area for the 
2015 ozone standard is a multistate area that is located in the Paso 
del Norte (PdN) airshed.\20\ The nonattainment area encompasses over 
1,000 square miles in southeastern New Mexico and West Texas. Its 
population is estimated to be approximately 885,000 people.\21\
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    \20\ Paso del Norte airshed consists of City of Sunland Park New 
Mexico, the City of El Paso, Texas and Municipio de Ju[aacute]rez, 
Mexico.
    \21\ U.S. Census Bureau, Population Estimates, July 1, 2021, 
(V2021) https://www.census.gov/quickfacts/fact/table/elpasocountytexas,sunlandparkcitynewmexico,US/PST045221 accessed 
November 2, 2022.
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B. Ozone Monitoring Sites in El Paso-Las Cruces, Texas-New Mexico 
Nonattainment Area

    There are currently two ozone monitors in the New Mexico portion of 
the nonattainment area: Santa Teresa and Desert View monitors. There 
are six ozone monitors in the Texas portion of the nonattainment area: 
El Paso UTEP, El Paso Chamizal, Skyline Park, Ivanhoe, Socorro Hueco, 
and Ascarate Park monitors. As shown in Table 2, the maximum 2020 
design value for the nonattainment area based on certified monitoring 
data is 78 ppb at the Desert View Monitor. The EPA also notes that 2021 
design values for the nonattainment area, based on certified monitoring 
data, are 80 ppb at the Desert View, New Mexico monitoring location; 75 
ppb at the Santa Teresa, New Mexico monitoring location; 75 ppb at the 
El Paso-UTEP, Texas monitoring location; and 71 ppb at the El Paso 
Chamizal, Texas monitoring location indicating that both the Texas and 
New Mexico portions continue to fail to meet the standard.
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    \22\ AQS Design Value Report.
    \23\ AQS Design Value Report.
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    Tables 1 and 2 of this document list the 2016-2021 annual fourth 
highest daily maximum hour average (``4th max'') and design values for 
the multistate area's ozone monitors. The Desert View, Santa Teresa, El 
Paso-UTEP, and El Paso Chamizal monitors are all within a mile of the 
border.

                                Table 1--2015 Ozone NAAQS: 2016-2021 Yearly 4th Max, El Paso-Las Cruces, Texas-New Mexico Nonattainment Area Ozone Monitors \22\
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                                                                                                                                           4th Max (ppb)
                            Site name                               AQS site ID    Distance from -----------------------------------------------------------------------------------------------
                                                                                  border (miles)       2016            2017            2018            2019            2020            2021
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New Mexico:
    Santa Teresa................................................     35-013-0022             0.3              69              77              76              75              72              79
    Desert View.................................................     35-013-0021             0.8              70              73              81              77              77              86
Texas:
    El Paso UTEP................................................     48-141-0037             0.7              71              74              76              75              79              73
    El Paso Chamizal............................................     48-141-0044             0.1              65              72              78              73              72              69
    Skyline Park................................................     48-141-0058             9.5              66              75              77              72              71              68
    Ivanhoe.....................................................     48-141-0029               5              61              63              74              70              68              64
    Socorro Hueco...............................................     48-141-0057             2.4              64              62              70              67              74              71
    Ascarate Park...............................................     48-141-0055             0.1              66              67              75              64              69              56
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                   Table 2--2015 Ozone NAAQS Design Values El Paso-Las Cruces, Texas-New Mexico Nonattainment Area Ozone Monitors \23\
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                                                                                                Design value (ppb)
               Site name                   AQS site ID  ------------------------------------------------------------------------------------------------
                                                              2016            2017            2018            2019            2020             2021
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New Mexico:
    Santa Teresa.......................     35-013-0022              68              72              74              76              74               75
    Desert View........................     35-013-0021              72              72              74              77              78               80
Texas:
    El Paso UTEP.......................     48-141-0037              70              71              73              75              76               75

[[Page 14099]]

 
    El Paso Chamizal...................     48-141-0044              67              69              71              74              74               71
    Skyline Park.......................     48-141-0058              68              70              72              74              73               70
    Ivanhoe............................     48-141-0029              62              63              66              69              70               67
    Socorro Hueco......................     48-141-0057              66              65              65              66              70               70
    Ascarate Park......................     48-141-0055              64              65              69              68              69               NA
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C. Summary of the States' Submissions

    On June 3, 2021, NMED submitted its ``Clean Air Act 179B 
Demonstration Sunland Park Ozone Nonattainment Area''. On February 28, 
2022, TCEQ submitted ``Federal Clean Air Act El Paso County 179B 
Demonstration: El Paso-Las Cruces, Texas-New Mexico Nonattainment Area 
Final Report''. Collectively the agencies demonstrations evaluated 
whether, and the extent to which, ambient ozone levels in the El Paso-
Las Cruces, Texas-New Mexico nonattainment area would be affected by 
emissions emanating from Municipio de Ju[aacute]rez, Mexico. As 
recommended in our guidance, these evaluations included an analysis of 
conceptual models of ozone formation in the nonattainment area and 
topographic conditions that influence ozone formation; an analysis of 
the ozone design value trends in the nonattainment area from 2016 to 
2021; emissions inventory analysis comparing ozone precursor emissions 
in Do[ntilde]a Ana County, New Mexico and El Paso County, Texas to 
those in Municipio de Ju[aacute]rez, Mexico; ambient observational 
analyses of back-trajectories examining days in the nonattainment area; 
wind analysis evaluating wind direction on high ozone days; and 
photochemical air quality modeling exercises and evaluations estimating 
the contribution of cross-border, northern Mexico emissions to ozone 
design values in the nonattainment area.
1. Conceptual Models
    NMED and TCEQ provided conceptual models describing ozone formation 
in the nonattainment area and topographical features of the binational, 
tristate airshed known as the Paso del Norte (PdN) airshed which 
consists of the City of Sunland Park, New Mexico; the City of El Paso, 
Texas; and the Municipio de Ju[aacute]rez, Mexico. The Rio Grande flows 
through the PdN generally from northwest to southeast along the Mesilla 
Valley and serves as the international border between Texas and Mexico. 
The PdN is a bowl shaped airshed that sits south of the Mesilla Valley 
and is saddled by the Franklin Mountains to the north in Texas and the 
Sierra de Ju[aacute]rez to the south in Mexico with Mount Cristo Rey 
sitting between them. The Franklin Mountains rise more than 3,280 ft 
above the valley floor and are approximately 14.4 miles long and 3.1 
miles wide, separating the western third of El Paso from the eastern 
two-thirds of the city. The Franklin Mountain Range and Sierra De 
Ju[aacute]rez combined act as a funnel facilitating the southeast 
directional airflow movement while Mount Cristo Rey acts as a barrier, 
facilitating efficient mixing.
    The climate of the PdN airshed is hot and arid with an average of 
less than nine inches of precipitation per year, 306 days of sunshine 
per year, and 15.4 days of daily high temperatures of 100 [deg]F and 
above, which are conducive to ozone formation. Over 45 years of July 
wind data obtained from the El Paso Airport indicates that the wind 
direction predominates from the southeast with wind speeds of 5 meter 
per second or less.\24\ Calm winds create a high potential for the 
production of ozone.
---------------------------------------------------------------------------

    \24\ Demonstrations; Texas: 5-6; New Mexico: 5-7.
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2. Design Value
    The states provided trends in the ozone design values, number of 
days with maximum daily 8-hour ozone values greater than 70 ppb, and 
precursor emissions for 2011-2020. The precursor emissions in both 
states have declined while the design values have risen despite the 
drop in precursor emissions. This is discussed in greater detail in the 
Technical Support Document (TSD).
3. Emission Analysis for El Paso-Las Cruces, Texas-New Mexico 
Nonattainment Area
    New Mexico and Texas provided tables of 2016 ozone precursor 
emissions (combined and shown in Table 3 of this document).\25\ The 
Municipio de Ju[aacute]rez NOX emissions are 2.5 times 
larger than El Paso County emissions and 4.5 times larger than 
Do[ntilde]a Ana County emissions. Generally, the Municipio de 
Ju[aacute]rez VOC emissions are 3 times larger than El Paso County 
emissions, 6 times larger than Do[ntilde]a Ana County emissions, and 39 
times larger than Sunland Park emissions. As a reminder, Sunland Park 
is the only portion of Do[ntilde]a Ana County, New Mexico included in 
the nonattainment area.
---------------------------------------------------------------------------

    \25\ TCEQ's Demonstration, page 14; NMED's Demonstration, page 
17.

      Table 3--Anthropogenic Emission Evaluation of the Nonattainment Area Prepared by New Mexico and Texas
----------------------------------------------------------------------------------------------------------------
                  Jurisdiction                       NOX (tpy)        Percent        VOC (tpy)        Percent
----------------------------------------------------------------------------------------------------------------
Municipio de Ju[aacute]rez, Mexico..............          39,744              64          33,363              67
Do[ntilde]a Ana County, NM......................           8,652            12.8           5,945             8.3
Sunland Park, NM................................             999             1.4             280             0.4
El Paso County, TX..............................          14,640              23          11,166              22
----------------------------------------------------------------------------------------------------------------


[[Page 14100]]

4. Ambient Observational Analysis--Back Trajectories
    TCEQ's and NMED's demonstrations include an analysis of back 
trajectories created using the National Oceanic and Atmospheric 
Administration's (NOAA) Hybrid Single Particle Lagrangian Integrated 
Trajectory (HYSPLIT) model.\26\ The analyses include trajectories for 
each exceedance day in 2016-2020 (Texas) and 2019-2020 (New Mexico) 
when the daily maximum eight-hour average ozone level was above 70 ppb 
at the El Paso UTEP, El Paso Chamizal, and Skyline Park monitors 
(Texas) and the Desert View monitor (New Mexico).
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    \26\ Demonstration; Texas: page 23, New Mexico: page 15 and 
Appendix A.
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    The TCEQ demonstration applied the HYSPLIT model using the READY 
(Real-time Environmental Applications and Display sYstem) application 
on the NOAA Air Resources Laboratory web server to trace the path of 
air parcels prior to arriving to El Paso County monitors on ozone 
exceedance days. For each ozone exceedance day at the El Paso UTEP, El 
Paso Chamizal, and Skyline Park monitors from 2016 through 2020 (a 
total of 93 site-days), the TCEQ generated eight 72-hour back 
trajectories, one trajectory arriving at each of the eight hours 
comprising the maximum daily average 8-hour ozone (MDA8) averaging 
period at a given monitor. The TCEQ reviewed the HYSPLIT back 
trajectories to determine whether at least 75% of the air parcels for 
that exceedance day traveled through Mexico. From this evaluation, TCEQ 
noted that exceedance days involved international contributions at the 
El Paso UTEP monitor 85% of the days, at El Paso Chamizal monitor 85% 
of the days, and at the Skyline Park monitor 61% of the days.
    NMED's demonstration ran the back-trajectory HYSPLIT model for 72 
hours using the North American Mesoscale Forecast System (NAMS) on the 
exceedance days and the corresponding number of non-exceedance days 
from 2019 through 2020. A total of eight trajectories were initiated 
one for each hour of the exceeding 8 hour average with a starting 
height of 100 meters above ground level. NMED then conducted a HYSPLIT 
back-trajectory test to determine an adjusted design value that would 
result from excluding internationally influenced exceedance dates. This 
approach does not quantify the international contribution, but simply 
assumes that days with clear transport linkages have sufficiently large 
international contributions that they would meet a ``but for'' test. 
Removing these dates from the data set affects the determination of the 
4th annual maximum 8-hour average and the design value calculation for 
the Desert View monitoring site. For each exceedance date from 2016 to 
2020, NMED reviewed the HYSPLIT back-trajectory to determine if 75% of 
the air parcels traveled through Municipio de Ju[aacute]rez 
airspace.\27\ When the results indicated more than 75% of the air 
parcels traveled through Municipio de Ju[aacute]rez airspace, NMED 
concluded that the ozone maximum daily eight-hour average concentration 
was influenced by international emissions. The dates resulting in less 
than 75% of the air parcels that did not travel through Municipio de 
Ju[aacute]rez would remain on the list of exceedance dates to determine 
the adjusted fourth annual maximum 8-hour average and then to calculate 
the adjusted design value. New Mexico's results show that 80% of the 
exceedances are influenced by international emissions using this 
method. In this adjustment analysis only nine of the 46 original 
exceedances remained with six dates in 2018, one date in 2019, and two 
dates in 2020 included in the adjusted design value calculation.
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    \27\ 179B Guidance, 34.
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5. Wind Evaluation
    Both NMED and TCEQ conducted wind analysis. Both states presented 
summaries of wind patterns associated with a range of observed ozone 
concentrations, graphically depicting ozone pollution roses which show 
the frequency distribution of ozone concentration separately for each 
direction from which the wind is blowing. NMED and TCEQ both presented 
ozone pollution roses for non-exceedance days (MDA8 ozone less than 71 
ppb) and exceedance days (MDA8 ozone greater than or equal to 71 ppb) 
from April through September 2016-2020 for the monitors closest to the 
Mexico border. Both NMED and TCEQ concluded that the highest hourly 
ozone concentration is associated with wind directions from Mexico. 
Figures of these analyses may be found in the TSD supporting this 
action and located in the docket.
    In addition to the ozone pollution roses by wind direction 
discussed above, TCEQ also conducted a wind cluster analysis for El 
Paso County using data from the El Paso UTEP, El Paso Chamizal, and 
Skyline Park monitors. The cluster analysis relied on hourly resultant 
wind direction and wind speed obtained from the TCEQ's Texas Air 
Monitoring Information System (TAMIS) database and corresponding ozone 
values at each monitor obtained from the EPA Air Data website (https://www.epa.gov/outdoor-air-quality-data). Using this data, the analysis 
classified days in April through September 2011 through 2020 based on 
their similarity in terms of daily wind patterns, grouping days 
together with similar afternoon wind direction (because peak ozone 
typically occurs during afternoon hours). From these analyses, TCEQ 
concluded that a significant portion of exceedances days at each 
monitoring site occurred when wind blew from Municipio de 
Ju[aacute]rez. More information about TCEQ's ozone cluster analysis, 
including figures, may be found in the Technical Support Document for 
this document, located in the docket. NMED did not conduct an ozone 
cluster analysis.
6. Photochemical Modeling To Quantify International Contribution
    As part of their demonstrations, NMED and TCEQ evaluated three 
models:
    (1) Southern New Mexico Ozone Study: Contracted by NMED in 2016 to 
help understand the cause of high ozone values in Do[ntilde]a Ana 
County, New Mexico, with a 2011 base year and 2025 analytic year.
    (2) New Mexico Ozone Attainment Initiative: Contracted by NMED in 
2020 to help understand the impact of the Oil and Gas Sector emission 
on ozone values in New Mexico, with a 2014 base year and 2028 analytic 
year.
    (3) Final Revised Cross-State Air Pollution Rule Update: Contracted 
by EPA in 2020 to determine impacts of transport of ozone and ozone 
precursors on downwind areas across the U.S. with a 2016 base year and 
2021, 2023 and 2028 analytic years.

    The methods used by each study are well documented in separate 
technical support documents and summarized in the TSD for this action 
which is located in the docket and summarized in both submissions.\28\ 
The states compared the source apportionment studies generated by these 
models and found that the three models show that the ozone 
concentrations in the nonattainment area are significantly impacted by

[[Page 14101]]

emissions from Mexico. These models show international contribution 
range from an estimated low of 4.11 ppb at the Chaparral, New Mexico 
monitor by the Southern New Mexico Ozone study to an estimated high of 
17.79 ppb at the Skyline Park monitor by the Revised CASPR Update 
model.
---------------------------------------------------------------------------

    \28\ EPA, 2021. Environmental Protection Agency. Cross-State Air 
Pollution Rule 2016 Update. Office of Air Quality Planning and 
Standards, Research Triangle Park, NC. January 2021. https://www.epa.gov/csapr/revised-cross-state-air-pollution-rule-update.
    WRAP, 2016. Southern New Mexico Ozone Study (SNMOS). Western 
Regional Air Partnership. November 2016. https://www.wrapair2.org/SNMOS.aspx. WRAP, 020. Ozone Attainment Initiative (OAI). Western 
Regional Air Partnership (May 2020). https://www.wrapair2.org/nmoai.aspx.
---------------------------------------------------------------------------

D. EPA Review of the States' Submissions

    Based on the Agency's review of the submissions described in 
section C, the EPA is proposing to find that Texas and New Mexico have 
successfully demonstrated that the El Paso-Las Cruces, Texas-New Mexico 
nonattainment area would have attained the 2015 ozone NAAQS but for 
emissions emanating from outside of the United States, consistent with 
CAA section 179B(b). This action discharges its statutory obligation 
under CAA section 181(b)(2) to determine whether the El Paso-Las 
Cruces, Texas-New Mexico nonattainment area attained the 2015 ozone 
NAAQS. Our rationale supporting the proposed approval of the State's 
179B(b) demonstration and determination is summarized below. The full 
rationale is included in the TSD provided in the docket for this 
rulemaking.
    NMED and TCEQ each provided a conceptual model describing the 
meteorology and topography of the area, an evaluation of ozone 
precursor emissions, and an analysis of ozone trends at monitors in the 
nonattainment area. We find that the following evidence supports the 
proposition that the Municipio de Ju[aacute]rez, Mexico emissions have 
a substantial influence on the El Paso-Las Cruces, Texas-New Mexico 
nonattainment area ozone levels: the topography and meteorology of the 
PdN area results in a single, shared multistate, binational airshed; 
Municipio de Ju[aacute]rez, Mexico ozone precursor emissions are much 
larger (currently approximately two and a half times greater) than El 
Paso-Las Cruces, Texas-New Mexico nonattainment area emissions; and 
ozone concentration trends in the nonattainment area have shown a 
steady increase despite the permanent and steady decrease of ozone 
precursor emissions at sources within the nonattainment boundary which 
is likely attributable to conditions in Mexico.
    NMED ran the HYSPLIT model to generate 8-hour back-trajectories for 
each of the eight hours contributing to each 2019-2020 daily maximum 8-
hour average ozone exceedance (greater than 70 ppb) at the Desert View 
monitor at 100 m altitude; TCEQ ran the HYSPLIT model to generate 8-
hour back-trajectories for each of the eight hours contributing to each 
2016-2020 exceedance day at the El Paso UTEP, El Paso Chamizal and 
Skyline Park monitors. As recommended in the 179B Guidance, the states 
flagged days that had at least 6 of the 8 hours originating from or 
traversing through Mexico as having likely influence from emissions 
emanating from Mexico.\29\ New Mexico's results show that 80% of the 
exceedance days at the Desert View monitor are influenced by 
international emissions using this method. TCEQ noted that exceedance 
days involved international contributions at the El Paso UTEP monitor 
85% of the days, at El Paso Chamizal monitor on 85% of the days, and at 
the Skyline Park monitor on 61% of the days. We conclude that the 
analysis of the 8-hour back trajectories passing over Municipio de 
Ju[aacute]rez, Mexico supports the conclusion that there is a direct 
international source-receptor relationship between Municipio de 
Ju[aacute]rez, Mexico and El Paso-Las Cruces, Texas-New Mexico 
nonattainment area on 2019-2020 (New Mexico) and 2016-2020 (Texas) 
exceedance days.
---------------------------------------------------------------------------

    \29\ 179B Guidance, 34.
---------------------------------------------------------------------------

    NMED and TCEQ also recalculated the 2020 design value excluding the 
days over 70 ppb identified to have been influenced by transport from 
Mexico, using a revised 4th high MDA8 ozone concentration for each 
year. The EPA notes that this method of recalculating the design value 
to exclude days which have international contributions doesn't 
contemplate whether the exceedance day is also affected by domestic 
emissions. In other words, a simple back-trajectory analysis merely 
identifies whether air parcels passed through an area prior to reaching 
a monitor but does not quantify or specify the amount of contribution. 
Therefore, a simple recalculation of the design value excluding days 
with influence from Mexico is not a conclusive ``but for'' analysis. 
However, the EPA agrees that the state's 8-hour back trajectory 
analysis in conjunction with the other lines of evidence shows that 
there is consistent, direct transport from the high-emissions Municipio 
de Ju[aacute]rez, Mexico on high ozone days to El Paso-Las Cruces, 
Texas-New Mexico nonattainment area monitors.
    NMED and TCEQ followed the approaches described in the 179B 
Guidance using a photochemical modeling approach to quantify 
international emissions emanating from Municipio de Ju[aacute]rez, 
Mexico to the El Paso-Las Cruces, Texas-New Mexico nonattainment area 
ozone. The available modeling also supports our conclusion that the El 
Paso-Las Cruces, Texas-New Mexico multi-state nonattainment area would 
have attained the 2015 ozone NAAQS but for emissions from Mexico. As 
previously discussed, NMED and TCEQ used the model results to estimate 
the impact of cross-border, northern Mexico emissions on air quality. 
The results of this estimate were applied to the average of the 2016 
and 2020 ozone design values at monitors in El Paso-Las Cruces, Texas-
New Mexico nonattainment area and indicate near-source Mexico emissions 
contribute approximately of 4.11 ppb at the Chaparral, New Mexico 
monitor as modeled in the Southern New Mexico Ozone study to an 
estimated high of 17.79 ppb at the Skyline Park monitor modeled in the 
Revised CASPAR Update study. The EPA notes that the analyses here 
conservatively evaluate only cross-border emissions from northern 
Mexico and do not evaluate effects of international emissions from 
other parts of Mexico or elsewhere. Due to differences in each model 
(such as base year, date of emission inventory, year model conducted, 
and analytic year) the results, are not identical. Taken together, the 
analyses do support conclusions drawn by NMED and TCEQ, that ozone 
values in the nonattainment area are impacted by emissions from Mexico. 
The EPA analyzed the results of the modeling studies and found that 
they do support the states' conclusions and our determination that the 
area would have attained the NAAQS but for international contributions.
    As discussed in the TSD, the EPA has performed additional analysis 
of its 2020 Ozone Policy Assessment (``2020 PA'') modeling \30\ to 
provide broad U.S. and international source attribution for 2015 ozone 
NAAQS nonattainment areas in the year 2016.\31\ The 2020 PA modeling 
predicts that the international anthropogenic ozone contribution to 
Do[ntilde]a Ana County, New Mexico \32\ on the top 10 model days is 
20.1 ppb, the second largest international anthropogenic contribution 
of any

[[Page 14102]]

nonattainment area in the country. In contrast to the modeling 
contracted by NMED, which quantifies only the small portion of the 
international contribution from near-source anthropogenic emissions in 
northern Mexico, the EPA's modeling quantifies impacts from all 
international anthropogenic emissions sources. This additional modeling 
indicates that international anthropogenic emissions have a significant 
impact on ozone in the El Paso-Las Cruces, Texas-New Mexico 
nonattainment area, and that emissions from northern Mexico, while 
having a substantial effect, are only a portion of the total 
contribution from all international anthropogenic sources to the El 
Paso-Las Cruces, Texas-New Mexico nonattainment area ozone design 
values. The analyses presented in this proposed action all support the 
conclusion that Mexican anthropogenic emissions are a major factor 
contributing to ozone exceedances in the El Paso-Las Cruces, Texas-New 
Mexico nonattainment area.
---------------------------------------------------------------------------

    \30\ U.S. EPA. (2020). Policy Assessment for the Review of the 
Ozone National Ambient Air Quality Standards (No. EPA-452/R-20-001). 
Research Triangle Park, NC: United States Environmental Protection 
Agency. Retrieved from https://www.epa.gov/sites/production/files/2020-05/documents/o3-final_pa-05-29-20compressed.pdf.
    \31\ Memorandum dated December 10, 2021, from Barron Henderson 
and Heather Simon (EPA, OAQPS), Subject: ``Designated Area Source 
Attribution Results Related to the National Determination of 
Attainment by the Attainment date (DAAD) Action.''
    \32\ This study evaluated ozone nonattainment areas that were 
designated before 2020. El Paso
---------------------------------------------------------------------------

    In conclusion, NMED's and TCEQ's retrospective 179B(b) 
demonstration includes multiple lines of evidence consistent with the 
types of analyses recommended in our 179B Guidance.\33\ These analyses 
appropriately focus on 2018, 2019, and 2020, which are the key years 
for demonstrating attainment for a Marginal nonattainment area for the 
2015 ozone NAAQS. We agree that each line of evidence supports the 
conclusion that the 2020 ozone design values at all monitoring sites in 
the El Paso-Las Cruces, Texas-New Mexico nonattainment area would be at 
or below 70 ppb but for the influence of Mexican emissions. NMED's and 
TCEQ's analyses focus on the influence of international contributions 
from the bordering Municipio de Ju[aacute]rez, Mexico near-by northern 
Mexico contributions. Ozone is both a local and regional problem. 
Contributions from sources in Mexico much farther away from the El 
Paso-Las Cruces, Texas-New Mexico nonattainment area than Municipio de 
Ju[aacute]rez also contribute to the nonattainment area; as such, EPA 
views the states each state's analysis to be a conservative approach to 
analyzing ``international contributions.'' Based on the evaluation of 
these analyses as a whole, the EPA finds that the El Paso-Las Cruces, 
Texas-New Mexico nonattainment area would have attained the 2015 ozone 
NAAQS by the August 3, 2021 attainment date but for emissions emanating 
from Mexico.
---------------------------------------------------------------------------

    \33\ 179B Guidance, Section 6.
---------------------------------------------------------------------------

III. Environmental Justice Considerations

    Executive Order 12898 (59 FR 7629, February 16, 1994) requires that 
federal agencies, to the greatest extent practicable and permitted by 
law, identify and address disproportionately high and adverse human 
health or environmental effects of their actions on minority and low-
income populations. Additionally, Executive Order 13985 (86 FR 7009, 
January 25, 2021) directs federal government agencies to assess 
whether, and to what extent, their programs and policies perpetuate 
systemic barriers to opportunities and benefits for people of color and 
other underserved groups, and Executive Order 14008 (86 FR 7619, 
February 1, 2021) directs federal agencies to develop programs, 
policies, and activities to address the disproportionate health, 
environmental, economic, and climate impacts on disadvantaged 
communities.
    To identify environmental burdens and susceptible populations in 
underserved communities in the El Paso-Las Cruces, Texas-New Mexico 
nonattainment area and to better understand the context of our proposed 
approval of NMED's and TCEQ's 179B(b) demonstrations on these 
communities, we conducted a screening-level analysis using the EPA's 
environmental justice (EJ) screening and mapping tool 
(``EJSCREEN'').\34\ Our screening-level analysis indicates that 
communities affected by this proposed action score above the national 
average for the EJSCREEN ``Demographic Index,'' which is the average of 
an area's percent minority and percent low income populations, i.e., 
the two demographic indicators explicitly named in Executive Order 
12898.\35\ Communities in this area also score above the national 
average for the ``linguistically isolated population,'' and 
``population with less than high school education'' indicators. 
Additionally, these communities score above the national average for 
numerous EJ Index indicators, including the PM2.5 EJ index 
and the respiratory hazard EJ Index. We also looked at ozone design 
values for the 2018-2020 period as an indicator of potential ozone 
pollution exposure.\36\ The Desert View (NM), Santa Teresa (NM), El 
Paso UTEP (TX), El Paso Chamizal (TX) and Skyline Park (TX) monitors 
score above the national average design value for this period.\37\
---------------------------------------------------------------------------

    \34\ EJSCREEN provides a nationally consistent dataset and 
approach for combining environmental and demographic indicators. 
EJSCREEN is available at https://www.epa.gov/ejscreen/what-ejscreen. 
The EPA used EJSCREEN to obtain environmental and demographic 
indicators representing the El Paso County, Texas and Do[ntilde]a 
Ana County, New Mexico, specifically targeting the areas closest to 
the nonattainment monitors, which are located adjacent to the border 
with Mexico and measures the highest levels of ozone in the 
nonattainment area, where the overwhelming majority of the 
population resides. These indicators are included in EJSCREEN 
reports that are available in the rulemaking docket for this action.
    \35\ EJSCREEN reports environmental indicators (e.g., air toxics 
cancer risk, Pb paint exposure, and traffic proximity and volume) 
and demographic indicators (e.g., people of color, low income, and 
linguistically isolated populations). The score for a particular 
indicator measures how the community of interest compares with the 
state, the EPA region, or the national average. For example, if a 
given location is at the 95th percentile nationwide, this means that 
only five percent of the US population has a higher value than the 
average person in the location being analyzed. EJSCREEN also reports 
EJ indexes, which are combinations of a single environmental 
indicator with the EJSCREEN Demographic Index. For additional 
information about environmental and demographic indicators and EJ 
indexes reported by EJSCREEN, see EPA, ``EJSCREEN Environmental 
Justice Mapping and Screening Tool--EJSCREEN Technical 
Documentation,'' Section 2 (September 2019).
    \36\ The ozone metric in EJSCREEN represents the summer seasonal 
average of daily maximum 8-hour concentrations (parts per billion, 
ppb) and was not used in our EJ analyses because it does not 
represent summertime peak ozone concentrations, which are instead 
represented here by the design value (DV) metric. Ozone DVs are the 
basis of the attainment determination in this proposed action, and 
in this case, we consider it a more informative indicator of 
pollution burden relative to the El Paso-Las Cruces, Texas-New 
Mexico nonattainment area and the U.S. as a whole.
    \37\ The 2020 ozone design value for the Desert View (78 ppb) is 
in the 94th percentile, Santa Teresa (74 ppb) is in the 89th 
percentile, El Paso UTEP (76 ppb) is in the 92nd percentile, El Paso 
Chamizal (74 ppb) is in the 89th percentile, and Skyline Park (73 
ppb) is in the 87th percentile among 2020 ozone design values 
nationally. The percentiles were calculated using data available at 
https://www.epa.gov/system/files/documents/2022-05/O3_DesignValues_2019_2021_FINAL_05_25_22.xlsx, Table 6. Site Trend, 
column T (``2018-2020 Design Value (ppm)'').
---------------------------------------------------------------------------

    As discussed in the EPA's EJ technical guidance, people of color 
and low-income populations, such as those in the El Paso-Las Cruces, 
Texas-New Mexico nonattainment area, often experience greater exposure 
and disease burdens than the general population, which can increase 
their susceptibility to adverse health effects from environmental 
stressors.\38\ Underserved communities may have a compromised ability 
to cope with or recover from such exposures due to a range of physical, 
chemical, biological, social, and cultural factors.\39\ In addition to 
the demographic and environmental indicators identified in our 
screening level analysis, the proximity of underserved communities to 
the border with Mexico and the resulting exposure to levels of ozone 
that exceed the

[[Page 14103]]

NAAQS contributes to the potential EJ concerns faced by communities in 
the El Paso-Las Cruces, Texas-New Mexico nonattainment area.
---------------------------------------------------------------------------

    \38\ EPA, ``Technical Guidance for Assessing Environmental 
Justice in Regulatory Analysis,'' section 4 (June 2016).
    \39\ Id. section 4.1.
---------------------------------------------------------------------------

    If finalized, this proposed action to approve New Mexico's and 
Texas's demonstrations that the El Paso-Las Cruces, Texas-New Mexico 
nonattainment area would have attained the standard by the statutory 
attainment date, but for emissions emanating from Mexico, would result 
in the area retaining its Marginal classification. The area will retain 
its designation as nonattainment and continue to implement 
nonattainment new source review, but will not be reclassified as 
``Moderate'' and the States will not be required to submit a plan 
demonstrating attainment or to adopt additional control measures, 
consistent with CAA section 179B(b).\40\ As a result, the EPA will not 
be requiring the States to impose additional control measures for 
purposes of the 2015 ozone NAAQS that could serve to reduce ozone 
exposure in the area, even if they would not result in actual 
attainment of the NAAQS due to the influx of ozone and its precursors 
from Mexico.
---------------------------------------------------------------------------

    \40\ In light of the overall health and clean air objectives of 
the CAA, the EPA encourages the States to continue to evaluate and, 
where feasible, implement measures that would further reduce 
emissions and contribute to improved air quality in the El Paso-Las 
Cruces, Texas-New Mexico Nonattainment area.
---------------------------------------------------------------------------

    In addition, the EPA notes that there are other efforts underway to 
reduce environmental burden along the U.S-Mexico border, including at 
the El Paso-Las Cruces, Texas-New Mexico nonattainment area. The United 
States and Mexico have long recognized the environmental challenges in 
the border region and share the goal of protecting the environment and 
public health in the U.S.-Mexico border region. The two nations have 
been working together outside the framework of the SIP process to make 
progress towards those goals.
    The U.S.-Mexico Environmental Program (``Border 2025'') is a five-
year (2021-2025) binational effort designed ``to protect the 
environment and public health in the U.S.-Mexico border region, 
consistent with the principles of sustainable development.'' \41\ 
Border 2025 is the latest of a series of cooperative efforts 
implemented under the 1983 La Paz Agreement. It builds on previous 
binational efforts (i.e., the Border 2012 and Border 2020 Environmental 
Programs), emphasizing regional, bottom-up approaches for decision 
making, priority setting, and project implementation to address the 
environmental and public health problems in the border region. As in 
the previous two border programs, Border 2025 encourages meaningful 
participation from communities and local stakeholders and establishes 
guiding principles that will support the mission statement, ensure 
consistency among all aspects of the Border 2025 Program, and continue 
successful elements of previous binational environmental programs.
---------------------------------------------------------------------------

    \41\ ``Border 2025: United States--Mexico Environmental 
Program,'' included in this docket and accessible at https://www.epa.gov/sites/default/files/2021-05/documents/final_us_mx_border_2025_final_may_6.pdf.
---------------------------------------------------------------------------

    Border 2025 sets out four strategic goals, including the reduction 
of air pollution and the improvement of water quality, to address 
environmental and public health challenges in the border region. Within 
the goals are specific objectives that identify actions that will be 
taken in support of the program's mission. The goals and objectives 
were determined binationally between the EPA and the Ministry of 
Environment and Natural Resources of Mexico (SEMARNAT) to address 
ongoing environmental challenges and considered input from state and 
tribal partners. The Joint Advisory Committee (JAC) is a binational 
committee made up of private citizens, private sector representatives, 
university officials, federal, state, and local government officials, 
and non-governmental environmental and public health organizations. The 
JAC is charged with the development and recommendation of air quality 
improvement projects and programs to the Air Work Group established 
under the 1983 U.S.-Mexico La Paz Agreement. The JAC serves as the 
local community-based organization overseeing the process to achieve 
cleaner air for the Paso del Norte region and air group under the 
Border 2020 Program.
    The air agencies did not evaluate environmental justice 
considerations as part of their SIP submittals; the CAA and applicable 
implementing regulations neither prohibit nor require such an 
evaluation. EPA performed an environmental justice analysis, as is 
described above. The analysis was done for the purpose of providing 
additional context and information about this rulemaking to the public, 
not as a basis of the action. In addition, there is no information in 
the record upon which this decision is based inconsistent with the 
stated goal of E.O. 12898 of achieving environmental justice for people 
of color, low-income populations, and Indigenous peoples. We 
acknowledge that the El Paso-Las Cruces, Texas-New Mexico nonattainment 
area includes minority and low-income populations that could be 
affected by this action.
    The EPA believes it is important to recognize those potential 
effects even when taking actions under a statutory provision like 179B 
that, in this case, largely constrains the Agency from considering such 
effects in its final decision. As discussed in Section I.B. of this 
document, each State has met the requirements for ozone nonattainment 
areas classified as Marginal. Moreover, the EPA continues to work in to 
reduce disproportionate health, environmental, economic, and climate 
change impacts in the El Paso-Las Cruces, Texas-New Mexico 
nonattainment area, including those described in this section above.

IV. Proposed Action

    For the reasons discussed in this document, we are proposing to 
determine, consistent with our evaluation of the ``Clean Air Act 
Section 179B Demonstration Sunland Park Ozone Nonattainment Area'' and 
the ``Federal Clean Air Act El Paso County Sec.  179B Demonstration: El 
Paso-Las Cruces, Texas-New Mexico Nonattainment Area Final Report'', 
that the El Paso-Las Cruces, Texas-New Mexico multi-state nonattainment 
area would have attained the 2015 ozone NAAQS by the Marginal area 
attainment date of August 3, 2021, but for emissions emanating from 
outside the United States. If finalized, the EPA's obligation under 
section 181(b)(2)(A) to determine whether the area attained by its 
attainment date will no longer apply and the area will not be 
reclassified. The area will remain designated nonattainment and thus 
New Mexico and Texas will both continue to comply with applicable 
requirements for a Marginal ozone nonattainment area.
    The EPA is soliciting public comments on the issues discussed in 
this document. We will accept comments from the public on this proposal 
until April 6, 2023 and will consider comments before taking final 
action.

V. 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

[[Page 14104]]

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, and Ozone.

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

    Dated: February 28, 2023.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2023-04634 Filed 3-6-23; 8:45 am]
BILLING CODE 6560-50-P


