Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Grant County Sulfur Dioxide Limited Maintenance Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving a limited maintenance plan submitted by the State of New Mexico, dated November 1, 2013, for the Grant County maintenance area for the 1971 sulfur dioxide (SO₂) National Ambient Air Quality Standard (NAAQS). New Mexico submitted this limited maintenance plan to fulfill the second 10-year maintenance plan requirement, under section 175A(b) of the Clean Air Act (CAA or the Act), to ensure maintenance of the 1971 SO₂ NAAQS through 2025. The EPA is approving the maintenance plan pursuant to the CAA.

DATES:

This rule is effective on September 16, 2014 without further notice, unless EPA receives relevant adverse comment by August 18, 2014. If EPA receives such comment, EPA will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R06-OAR-2013-0764, by one of the following methods:

• www.regulations.gov. Follow the on-line instructions.
• Email: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please also send a copy by email to the person listed in the FOR FURTHER INFORMATION CONTACT section below.
• Mail or Delivery: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.

Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-2013-0764. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov or email, information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov,, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at www.epa.gov/epahome/dockets.htm.

Docket: All documents in the docket are listed in the www.regulations.gov index and in hard copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment with the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese at 214-665-7253.

FOR FURTHER INFORMATION CONTACT:

Ms. Dayana Medina (6PD-L), Air Planning Section, telephone (214) 665-7241, fax (214) 665-6762, email: medina.dayana@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us,” and “our” means EPA.

Table of Contents

I. Background

II. Evaluation of New Mexico's Submittal

A. Has the State demonstrated that Grant County qualifies for the Limited Maintenance Plan option?

B. Elements of a Limited Maintenance Plan for SO₂

1. Attainment Emissions Inventory

2. Demonstration of Maintenance

3. Monitoring Network, Verification of Continued Attainment, and New Mexico's Request To Discontinue the SO₂ Hurley Monitor

4. Contingency Plan

III. Final Action

IV. Statutory and Executive Order Reviews

I. Background

On September 11, 1978 (43 FR 40412), the EPA designated a portion of Grant County, New Mexico as a nonattainment area for the 1971 SO₂ NAAQS under Section 107 of the CAA. The area that was designated nonattainment is located within the Air Quality Control Region (AQCR) No. 012, and consists of a 3.5 mile radius surrounding the former Kennecott Copper Corporation (now called the Chino Mines-Hurley Facility) and land above 6470 feet Mean Sea Level within an 8 mile radius of the Hurley Smelter, which is part of the Chino Mines-Hurley Facility in Hurley, New Mexico. Emissions from this source caused the violations of the SO₂ NAAQS that resulted in the area being designated nonattainment. EPA approved the attainment SIP for the Grant County SO₂ nonattainment area on May 5, 1982 (47 FR 19332).

On February 21, 2003, New Mexico submitted a request that the Grant County nonattainment area be redesignated to attainment for the 1971 SO₂ NAAQS. Along with this request, the state submitted a maintenance plan which demonstrated that the area was expected to stay in attainment of the 1971 SO₂ NAAQS for the initial maintenance period through 2015. The EPA approved the redesignation request and the maintenance plan on September 18, 2003 (68 FR 54672).

Section 175A(b) of the Act as amended in 1990 requires the state to submit a subsequent maintenance plan covering a second ten-year period to EPA eight years after designation to attainment. To fulfill this requirement of the Act, New Mexico submitted the second ten-year update of the SO₂ maintenance plan to EPA on November 1, 2013. The limited maintenance plan SIP revision demonstrates that the area is expected to stay in attainment of the 1971 SO₂ NAAQS through 2025. The revision also requests to discontinue the only SO₂ monitor in the Grant Country maintenance area (the Hurley monitor, AQS ID 35-017-0003-42401-1) in light of the negligible SO₂ concentrations measured at the monitor, and to implement an alternative SO₂ monitoring methodology in its place. This action is being taken with respect to the 1971 24-hour SO₂ NAAQS. This action does not address the 2010 1 hour SO₂ Standard but we note that concentrations measured on a 1 hour basis are also quite low.

II. Evaluation of New Mexico's Submittal

On November 1, 2013, the State of New Mexico submitted a revision to the New Mexico SIP. This revision provides the second 10-year update to the maintenance plan for the area, as required by the section 175A(b) of the Act. The purpose of this plan is to ensure continued maintenance of 1971 SO₂ NAAQS in Grant County by demonstrating that future emissions of this criteria pollutant are expected to remain at or below emission levels necessary for continued attainment of the 1971 SO₂ NAAQS. Since there are few specific content requirements defined in section 175A of the Act for maintenance plans, EPA has exercised its discretion to make available the option of submitting a Limited Maintenance Plan for areas that can make a demonstration of consistent air quality at or below 85% of the SO₂ NAAQS. EPA has developed guidance memoranda on Limited Maintenance Plan options that are specific to the ozone, particulate matter with an aerodynamic diameter less than 10 microns (PM₁₀), and carbon monoxide NAAQS. Consistent with EPA's policy for limited maintenance plans as presented in those guidance memoranda, EPA here has the authority to exercise its reasonable discretion and conclude that a limited maintenance plan option is justifiable and appropriate in this case for the SO₂ NAAQS. New Mexico has opted to develop a Limited Maintenance Plan for the Grant County SO₂ maintenance area to fulfill the second 10-year maintenance period required by the Act. Our evaluation of the Grant County SO₂ Limited Maintenance Plan is presented below.

A. Has the State demonstrated that Grant County Qualifies for the Limited Maintenance Plan option?

Following the approach presented in our guidance memoranda, we believe it appropriate for a limited maintenance plan for SO₂ option to be available for a State that demonstrates that the design values for SO₂ in the maintenance area are at, or below, 85 percent of the 24-hour SO₂ NAAQS or 0.119 parts per million (ppm). To support use of this option, the area's design value should not exceed the 0.119 ppm threshold throughout the entire rulemaking process. There is currently only one monitor located in the Grant County maintenance area, the Hurley, New Mexico monitor (AQS ID 35-017-0003-42401-1). This monitor has been operating since 1997 and EPA determined in a letter to NMED dated August 26, 2002, that the Hurley monitor was placed where modeling indicated the highest SO₂ concentrations were likely to occur. For this submission, the state provided data showing that the SO₂ design value for the 24-hour SO₂ NAAQS (0.14 part per million (ppm)) has been 0.0 ppm for each of the five most recent years (2007-2011) for which certified ambient air quality data is available for the Hurley monitor. These values are clearly below the 85% threshold, demonstrating that the Grant County maintenance area is suitable for a Limited Maintenance Plan option. Consistent with past contexts where a limited maintenance plan option was deemed to be available, the area does not have a recent history of monitored violations nor any long prior history of monitored air quality problems.

B. Elements of a Limited Maintenance Plan for SO₂

A Limited Maintenance Plan conventionally consists of several core provisions: An attainment inventory, a demonstration of maintenance of the NAAQS, operation of a monitoring network, a contingency provision, as necessary, to promptly correct any violation of the NAAQS.

1. Attainment Emissions Inventory

The State's plan should include an emissions inventory to identify the level of emissions in the maintenance area that is sufficient to attain the NAAQS. The inventory should represent emissions during the same five-year period associated with air quality data used to determine whether the area meets the applicability requirements of the limited maintenance plan option. New Mexico's Grant County Limited Maintenance Plan submittal includes an SO₂ emissions inventory for Grant County Title V sources and Minor Point sources for the years 2007-2011. These base years represent the most recent emissions inventory data available and are consistent with the data used to determine applicability of the limited maintenance plan option (i.e., design values at, or below, 85 percent of the 24-hour SO₂ NAAQS). The source that caused the violations of the SO₂ NAAQS that resulted in the area being designated nonattainment, the former Hurley Smelter, was dismantled and its stacks removed in July 2006. The former Hurley Smelter was the only major source of SO₂ located within the maintenance area boundary. There are currently no major sources of SO₂ located in the Grant County maintenance area. There are currently two Title V sources in Grant County (both located outside of the Grant County maintenance area): the Chino Mine and the Tyrone Mine. The combined actual SO₂ emissions for the two sources has been no more than 6.57 tons per year (tpy) for each of the years 2007-2011. The primary sources of SO₂ emissions for both facilities are blasting fugitives and diesel generator engines. There are currently four minor point sources located within the Grant County maintenance area with combined annual allowable SO₂ emissions of 316 tpy for each of the years 2007-2011. However, the actual SO₂ emissions generated by these sources are minimal. This data supports New Mexico's conclusion that the control measures contained in the original attainment plan will continue to protect and maintain the 1971 SO₂ NAAQS.

2. Demonstration of Maintenance

EPA considers the maintenance demonstration requirement satisfied if the monitoring data show that the area is meeting the air quality criteria for limited maintenance areas (i.e., design value at or below 0.119 parts per million (ppm) or 85% of the 24-hour SO₂ NAAQS). There is no requirement to project emissions over the maintenance period. Instead, EPA believes that if an area is at or below 85 percent of exceedance levels, the air quality along with the continued applicability of PSD requirements, any control measures already in the SIP, and Federal measures, should provide adequate assurance of maintenance over the remainder of the 10-year maintenance period. As discussed above, the state provided data showing that the SO₂ design value for the 24-hour SO₂ NAAQS (0.14 part per million (ppm)) has been 0.0 ppm for each of the five most recent years (2007-2011) for which certified ambient air quality data is available for the Hurley monitor. These values are well below the 85% threshold, thus demonstrating the appropriateness of a Limited Maintenance Plan option for the Grant County maintenance area.

When EPA approves a limited maintenance plan, EPA is concluding that an emissions budget may be treated as essentially not constraining for the length of the maintenance period because it is unreasonable to expect that such an area will experience so much growth in that period that a violation of the SO₂ NAAQS would result.

3. Monitoring Network, Verification of Continued Attainment, and New Mexico's Request To Discontinue the SO₂ Hurley Monitor

To verify the attainment status of the area over the maintenance period, the maintenance plan should contain provisions for continued operation of an appropriate, EPA-approved air quality monitoring network, in accordance with 40 CFR part 58. Over the course of the last 30 years, New Mexico has operated four SO₂ monitors in the Grant County maintenance area. There have been no monitored exceedances of the 1971 SO₂ NAAQS in the Grant County maintenance area since 1979. The Hurley monitor (AIRS Monitor ID 35-017-0003-42401-1), which has been in operation since 1997, is the only SO₂ monitor currently operating in the Grant County maintenance area. EPA determined in a letter to NMED dated August 26, 2002, that the Hurley monitor was placed where modeling indicated the highest SO₂ concentration was likely to occur. Monitored SO₂ concentrations have been negligible for the most recent five years for which certified ambient air quality data is available, following the July 2006 dismantling of the Hurley Smelter, which was the source originally responsible for the violations of the SO₂ NAAQS that resulted in the area being designated nonattainment. The state provided data from the Hurley monitor showing that the SO₂ design value for the 24-hour SO₂ NAAQS (0.14 part per million (ppm)) has been 0.0 ppm for each of the five most recent years (2007-2011) for which certified ambient air quality data was available.

In light of the limited number of SO₂ emission sources, the limited amount of SO₂ emissions, and the negligible monitored SO₂ concentrations in the Grant County maintenance area, New Mexico is requesting to discontinue SO₂ air monitoring within the maintenance area, as currently required by its maintenance plan, and to instead implement an alternative SO₂ monitoring methodology that does not utilize a gaseous analyzer for determining compliance with the SO₂ NAAQS. The alternative SO₂ monitoring method will consist of using PSD and Title V modeling and any required post-construction monitoring for new and modified air quality permits and an annual emission review of all major SO₂ sources located in the Grant County maintenance area. In the event that PSD or Title V modeling, PSD or Title V post-construction monitoring, or the annual emissions review of major sources within the maintenance area indicate there is a significant increase in SO₂ emissions that may cause a potential SO₂ NAAQS violation, New Mexico will reinstitute a gaseous SO₂ monitor at the Hurley, NM monitoring location (AIRS ID 35-017-0003-42401-1) or at a site expected to read greater SO₂ levels than this site. If the monitored SO₂ values after one year are at or below 50 percent of the 24-hour or annual SO₂ NAAQS, or both, the monitor would again be removed and the alternative SO₂ monitoring methodology reinstated. The process would be repeated each time PSD or Title V monitoring, PSD or Title V post-construction monitoring, or the annual emission review of major SO₂ sources within the maintenance area indicate a potential SO₂ NAAQS violation.

We accordingly find that with the alternative SO₂ monitoring methodology in place, the Hurley monitor is no longer required as part of the 24-hour SO₂ maintenance plan. By our approval, the maintenance plan will not contain any contingency measures to be triggered by a monitored air quality concentration. NMED may submit a separate request for a system modification (including a request for discontinuation of a State or local air monitoring station) for EPA's review and approval under the bases provided in 40 CFR § 58.14. We find that the State has satisfied the monitoring network and verification of continued attainment requirements for the limited maintenance plan.

4. Contingency Plan

Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions, as necessary, to promptly correct any violation of the NAAQS that occurs after the area is redesignated to attainment. Under section 175A(d), contingency measures do not have to be fully adopted at the time of redesignation. However, the contingency plan is considered to be an enforceable part of the SIP and should ensure that the contingency measures are adopted expeditiously once they are triggered by a specified event. The general approach for contingency measures discussed in the limited maintenance plan guidance memoranda provide that the contingency provisions should identify the measures to be adopted, a schedule and procedure for adoption and implementation, and a specific time limit for action by the State. However, the General Preamble for the Implementation of Title I of the Act Amendments of 1990 (57 FR 13498) states that SO₂ provisions require special considerations. A primary reason is that SO₂ control methods are well established and understood. Therefore, contingency measures for SO₂ need only consist of a comprehensive program to identify sources of violations of the SO₂ NAAQS and to undertake an aggressive follow-up for compliance and enforcement.

There are currently no major SO₂ sources within the Grant County maintenance area. In the event that an SO₂ source(s) moves into or within close proximity to the Grant County SO₂ maintenance area, New Mexico will ensure that such source(s) will comply with all applicable state and federal SO₂ regulations and requirements. New Mexico is also committing to maintain a comprehensive compliance and enforcement program to identify sources of violation of the SO₂ NAAQS within the maintenance area and to undertake aggressive follow up measures to ensure compliance with the SO₂ NAAQS. In conformance with CAA section 175A(d), New Mexico will also implement all measures with respect to the control of air pollutants concerned which were contained in the SIP for the area before redesignation of the area as an attainment area, to the extent such measures are applicable to any sources which may exist at the time of any NAAQS exceedance. We believe that New Mexico's contingency plan is adequate for identifying which SO₂ sources are responsible for violations of the 1971 SO₂ NAAQS and undertaking aggressive measures to ensure compliance of the SO₂ NAAQS. We find that New Mexico's contingency measures plan is approvable.

III. Final Action

The EPA is taking direct final action to approve the second 10-year limited maintenance plan for Grant County submitted by the State of New Mexico.

We are approving this limited maintenance plan for the Grant County maintenance area for the 1971 SO₂ NAAQS. The State of New Mexico has complied with the requirements of section 175A of the CAA, consistent with its interpretation through past limited maintenance plan guidance provided several EPA memoranda dated November 16, 1994; October 6, 1995; and August 9, 2001. New Mexico has shown through its submittal that SO₂ emissions in the Grant County maintenance area have decreased to very low levels following the dismantling of the Hurley smelter in July 2006. New Mexico has also shown that the monitored levels of the 1971 SO₂ NAAQS in the Grant County area have been negligible since 2007, with design values of 0 ppm for the most recent five years for which certified ambient air monitoring data is available. Thus, the area has been consistently well below the requisite level of 0.119 ppm for the 24-hour SO₂ NAAQS in order to qualify for the limited maintenance plan option. New Mexico has also shown that all SO₂ monitored values have been consistently well below the 1971 SO₂ NAAQS levels. These low monitored values of SO₂ are expected through the end of the maintenance period.

We find that with the alternative SO₂ monitoring methodology in place, the Hurley monitor is no longer required as part of the 24-hour SO₂ maintenance plan. By our approval, the maintenance plan will not contain any contingency measures to be triggered by a monitored air quality concentration. NMED may submit a separate request for a system modification (including a request for discontinuation of a State or local air monitoring station) for EPA's review and approval under the bases provided in 40 CFR 58.14.

EPA is publishing this rule without prior proposal because we view this as a non-controversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received. This rule will be effective on September 16, 2014 without further notice unless we receive relevant adverse comment by August 18, 2014. If we receive relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so now. Please note that if we receive relevant adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

IV. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the 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 Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 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, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 16, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Reporting and recordkeeping requirements
• Sulfur oxides

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

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

Subpart GG—New Mexico

2. In § 52.1620(e) the second table titled “EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP” is amended by adding the entry “Second 10-year SO ₂ maintenance plan for Grant County” at the end of the table to read as follows: