Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Section 110(a)(2) Infrastructure Requirements for 1997 8-Hour Ozone and Fine Particulate Matter National Ambient Air Quality Standards; New Mexico Ambient Air Quality Standards; Approval of New Mexico's PSD Program; CFR Codification Technical Corrections, 24421-24434 [2011-10569]
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[FR Doc. 2011–10482 Filed 4–29–11; 8:45 am]
40 CFR Part 52
[EPA–R06–OAR–2009–0647; FRL–9301–1]
Approval and Promulgation of Air
Quality Implementation Plans; New
Mexico; Section 110(a)(2)
Infrastructure Requirements for 1997
8-Hour Ozone and Fine Particulate
Matter National Ambient Air Quality
Standards; New Mexico Ambient Air
Quality Standards; Approval of New
Mexico’s PSD Program; CFR
Codification Technical Corrections
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
BILLING CODE 4810–35–P
PO 00000
ENVIRONMENTAL PROTECTION
AGENCY
EPA is proposing to approve
submittals from the State of New
Mexico pursuant to the Clean Air Act
(CAA or Act) that address the
infrastructure elements specified in the
CAA section 110(a)(2), necessary to
implement, maintain, and enforce the
1997 8-hour ozone and 1997 fine
particulate matter (PM2.5) national
ambient air quality standards (NAAQS
SUMMARY:
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or standards). We are proposing to find
that the current New Mexico State
Implementation Plan (SIP) meets the
following infrastructure elements for the
1997 8-hour ozone NAAQS and the
1997 PM2.5 NAAQS: 110(a)(2)(A), (B),
(C), (D)(ii), (E), (F), (G), (H), (J), (K), (L),
and (M). EPA is also proposing to
approve a November 2, 2006, SIP
revision to regulation 20.2.3 of the New
Mexico Administrative Code (NMAC)
(Ambient Air Quality Standards), to
remove the state ambient air quality
standards from being an applicable
requirement under the State’s Title V
permitting program, found at 20.2.70
NMAC (Operating Permits). EPA is also
proposing to correct an administrative
oversight by converting our February 27,
1987, conditional approval of New
Mexico’s PSD program (52 FR 5964) to
a full approval based on the November
2, 1988, approval of New Mexico’s stack
height regulations (53 FR 44191), at
which point New Mexico fully met the
condition in the conditional approval.
Please note the fact that we had not
formally converted the February 27,
1987 conditional approval to a full
approval, yet this had no impact on
New Mexico’s authority to implement
the PSD program. Lastly, EPA is
proposing to make a number of U.S.
Code of Federal Regulations (CFR)
codification technical corrections to
amend the description of the approved
New Mexico SIP. This action is being
taken under section 110 and part C of
the Act.
DATES: Comments must be received on
or before June 1, 2011.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
OAR–2009–0647, by one of the
following methods:
• Federal Rulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
• U.S. EPA Region 6 ‘‘Contact Us’’
Web site: https://epa.gov/region6/
r6comment.htm. Please click on ‘‘6PD
(Multimedia)’’ and select ‘‘Air’’ before
submitting comments.
• E-mail: Mr. Guy Donaldson at
donaldson.guy@epa.gov. Please also
send a copy by e-mail to the person
listed in the FOR FURTHER INFORMATION
CONTACT section below.
• Fax: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD–L), at fax
number 214–665–7263.
• Mail: Mr. Guy Donaldson, Chief,
Air Planning Section (6PD–L),
Environmental Protection Agency, 1445
Ross Avenue, Suite 1200, Dallas, Texas
75202–2733.
• Hand or Courier Delivery: Mr. Guy
Donaldson, Chief, Air Planning Section
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(6PD–L), Environmental Protection
Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202–2733. Such
deliveries are accepted only between the
hours of 8 a.m. and 4 p.m. weekdays,
and not on legal holidays. Special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R06–OAR–2009–
0647. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
the Air Planning Section (6PD–L),
Environmental Protection Agency, 1445
Ross Avenue, Suite 700, Dallas, Texas
75202–2733. The file will be made
PO 00000
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available by appointment for public
inspection in the Region 6 FOIA Review
Room between the hours of 8:30 a.m.
and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in
the FOR FURTHER INFORMATION CONTACT
paragraph below or Mr. Bill Deese at
214–665–7253 to make an appointment.
If possible, please make the
appointment at least two working days
in advance of your visit. There will be
a fee of 15 cents per page for making
photocopies of documents. On the day
of the visit, please check in at the EPA
Region 6 reception area at 1445 Ross
Avenue, Suite 700, Dallas, Texas.
The State submittal is also available
for public inspection during official
business hours by appointment: New
Mexico Environment Department
(NMED), Air Quality Bureau, 1190 St.
Francis Drive, Santa Fe, New Mexico
87502.
Ms.
Dayana Medina, Air Planning Section
(6PD–L), Environmental Protection
Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733,
telephone 214–665–7241; fax number
214–665–6762; e-mail address
medina.dayana@epa.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ means EPA.
Table of Contents
I. Background
A. What are the National Ambient Air
Quality Standards?
B. What is a SIP?
C. What is the background for this
rulemaking?
a. Section 110(a)(1) and (2)
b. Greenhouse Gas (GHG) Component of
PSD Programs
D. What elements are required under
Section 110(a)(2)?
II. What action is EPA proposing?
A. Section 110(a)(1) and (2)
B. CFR Codification Technical Correction
to 40 CFR 52.1620(e)
C. CFR Codification Technical Corrections
to 40 CFR 52.1620(c) and 40 CFR
52.1640(c)(66)(i)(B)
D. Conversion of Our Conditional
Approval of New Mexico’s PSD Program
to Full Approval and CFR Codification
Technical Corrections to 40 CFR
52.1634(a) and 40 CFR 52.1640(c)(39)
E. SIP Revision to 20.2.3 NMAC
III. How has New Mexico addressed the
elements of Section 110(a)(2)?
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background
A. What are the National Ambient Air
Quality Standards?
Section 109 of the Act requires EPA
to establish NAAQS for pollutants that
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‘‘may reasonably be anticipated to
endanger public health and welfare,’’
and to develop a primary and secondary
standard for each NAAQS. The primary
standard is designed to protect human
health with an adequate margin of
safety, and the secondary standard is
designed to protect public welfare and
the environment. EPA has set NAAQS
for six common air pollutants, referred
to as criteria pollutants: carbon
monoxide, lead, nitrogen dioxide,
ozone, particulate matter, and sulfur
dioxide. These standards present state
and local governments with the
minimum air quality levels they must
meet to comply with the Act. Also,
these standards provide information to
residents of the United States about the
air quality in their communities.
B. What is a SIP?
The SIP is a set of air pollution
regulations, control strategies, other
means or techniques, and technical
analyses developed by the state, to
ensure that the state meets the NAAQS.
The SIP is required by section 110 and
other provisions of the Act. These SIPs
can be extensive, containing state
regulations or other enforceable
documents and supporting information
such as emissions inventories,
monitoring networks, and modeling
demonstrations. Each state must submit
these regulations and control strategies
to EPA for approval and incorporation
into the Federally enforceable SIP. Each
Federally approved SIP protects air
quality primarily by addressing air
pollution at its point of origin.
C. What is the background for this
rulemaking?
emcdonald on DSK2BSOYB1PROD with PROPOSALS
a. Section 110(a)(1) and (2)
On July 18, 1997, we promulgated
new and revised NAAQS for ozone (62
FR 38856) and PM (62 FR 38652). For
ozone, we set an 8-hour standard of 0.08
parts per million (ppm) to replace the 1hour standard of 0.12 ppm. For PM, we
set a new annual and a new 24-hour
NAAQS for particles with an
aerodynamic diameter less than or equal
to a nominal 2.5 micrometers (denoted
PM2.5). The annual PM2.5 standard was
set at 15 micrograms per cubic meter
(μg/m3). The 24-hour PM2.5 standard
was set at 65 μg/m3. For more
information on these standards, please
see the 1997 Federal Register notices
(62 FR 38856 and 62 FR 38652).
Under sections 110(a)(1) and (2) of the
Act, states are required to submit SIPs
that provide for the implementation,
maintenance, and enforcement (the
infrastructure) of a new or revised
NAAQS within three years following
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the promulgation of the NAAQS, or
within such shorter period as EPA may
prescribe. Section 110(a)(2) lists the
specific infrastructure elements that
must be incorporated into the SIPs,
including for example, requirements for
air pollution control measures, and
monitoring that are designed to assure
attainment and maintenance of the
NAAQS. A table listing all 14
infrastructure elements is included in
subsection D of section I of this
proposed rulemaking.1 Thus states were
required to submit such SIPs for the
1 Two elements identified in section 110(a)(2) are
not governed by the 3-year submission deadline of
section 110(a)(1) because SIPs incorporating
necessary local nonattainment area controls are not
due within 3 years after promulgation of a new or
revised NAAQS, but rather are due at the time the
nonattainment area plan requirements are due
pursuant to section 172. These requirements are: (i)
Submissions required by section 110(a)(2)(C) to the
extent that subsection refers to a permit program as
required in part D Title I of the CAA and (ii)
submissions required by section 110(a)(2)(I) which
pertain to the nonattainment planning requirements
of part D Title I of the CAA. Therefore, this action
does not cover these specific SIP elements. This
action also does not pertain to section
110(a)(2)(D)(i). Section 110(a)(2)(D)(i) contains four
distinct requirements, or ‘‘prongs,’’ related to the
impacts of interstate transport. The Interstate
Transport SIP must prevent sources in the State
from emitting pollutants in amounts which will: (1)
Contribute significantly to nonattainment of the
NAAQS in other states; (2) interfere with
maintenance of the NAAQS in other states; (3)
interfere with provisions to prevent significant
deterioration of air quality in other states; or (4)
interfere with efforts to protect visibility in other
states. EPA published a finding on April 25, 2005
(70 FR 21147) that all states had failed to submit
SIPs addressing interstate transport for the 8-hour
ozone and PM2.5 NAAQS, as required by section
110(a)(2)(D)(i). Furthermore, there is a consent
decree in place for seven states in the western
United States, including New Mexico, to meet the
requirements of section 110(a)(2)(D)(i) with regard
to the 1997 8-hour ozone and PM2.5 NAAQS (74 FR
64076, December 7, 2009). Under the consent
decree, for each of these seven states, EPA is
required to fully approve SIPs and/or promulgate
FIPs that satisfy the four ‘‘prongs’’ of section
110(a)(2)(D)(i) by specified dates. In prior actions,
we approved the New Mexico SIP submittal for (1)
the ‘‘significant contribution to nonattainment
prong’’ of section 110(a)(2)(D)(i) (75 FR 33174, June
11, 2010) and (2) the ‘‘interfere with maintenance’’
and ‘‘interfere with measures to prevent significant
deterioration’’ prongs of section 110(a)(2)(D)(i) (75
FR 72588, November 26, 2010). To address the
fourth prong of section 110(a)(2)(D)(i), we proposed
to disapprove the New Mexico Interstate Transport
SIP provisions that address the requirement that
emissions from New Mexico sources do not
interfere with measures required in the SIP of any
other state to protect visibility (76 FR 491, January
5, 2011). In the same rulemaking, we proposed to
promulgate a FIP in order to prevent emissions from
New Mexico sources from interfering with other
states’ measures to protect visibility, and to
implement nitrogen oxides (NOX) and sulfur
dioxide (SO2) emission limits necessary at one
source to prevent such interference and to address
the requirement for best available retrofit
technology (BART) for NOX for this same source.
For the 1997 ozone and PM2.5 NAAQS, the
requirements of section 110(a)(2)(D)(i) are being
addressed separately and are not included in the
infrastructure SIPs.
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1997 8-hour ozone and PM2.5 NAAQS to
EPA no later than June 2000.2 However,
intervening litigation over the 1997 8hour ozone and PM2.5 NAAQS created
uncertainty about how to proceed and
many states did not provide the
required ‘‘infrastructure’’ SIP submission
for these newly promulgated NAAQS.
On March 4, 2004, Earthjustice
submitted a notice of intent to sue
related to EPA’s failure to issue findings
of failure to submit related to the
infrastructure requirements for the 1997
8-hour ozone and PM2.5 NAAQS. EPA
entered into a consent decree with
Earthjustice which required EPA, among
other things, to complete a Federal
Register notice announcing EPA’s
determinations pursuant to section
110(k)(1)(B) of the Act as to whether
each state had made complete
submissions to meet the requirements of
section 110(a)(2) for the 1997 8-hour
ozone NAAQS by December 15, 2007.
Subsequently, EPA received an
extension of the date to complete this
Federal Register notice until March 17,
2008, based upon agreement to make the
findings with respect to submissions
made by January 7, 2008. In accordance
with the consent decree, EPA made
completeness findings for each state
based upon what the Agency received
from each state as of January 7, 2008.
With regard to the 1997 PM2.5 NAAQS,
EPA entered into a consent decree with
Earthjustice which required EPA, among
other things, to complete a Federal
Register notice announcing EPA’s
determinations pursuant to section
110(k)(1)(B) of the Act as to whether
each state had made complete
submissions to meet the requirements of
section 110(a)(2) for the 1997 PM2.5
NAAQS by October 5, 2008.
On March 27, 2008, and October 22,
2008, we published findings concerning
whether states had made the necessary
110(a)(2) submissions for the 1997
ozone (73 FR 16205) and PM2.5
standards (73 FR 62902). In the March
27, 2008 action, we found that New
Mexico had made a submission that
addressed some, but not all of the
section 110(a)(2) requirements of the
Act necessary to implement the 1997
2 EPA issued a revised 8-hour ozone standard on
March 27, 2008 (73 FR 16436). On September 16,
2009, the EPA Administrator announced that EPA
would take rulemaking action to reconsider the
2008 primary and secondary ozone NAAQS. On
January 19, 2010, EPA proposed to set different
primary and secondary ozone standards than those
set in 2008 to provide requisite protection of public
health and welfare, respectively (75 FR 2938). The
final reconsidered ozone NAAQS have yet to be
promulgated. This rulemaking does not address the
2008 ozone standard.
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8-hour ozone NAAQS.3 In the October
22, 2008 action, we found that New
Mexico had made a complete SIP
submission that provides for the basic
program elements specified in section
110(a)(2) of the Act necessary to
implement the 1997 PM2.5 NAAQS.
On October 2, 2007, we issued
‘‘Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the
1997 8-hour Ozone and PM2.5 National
Ambient Air Quality Standards,’’
Memorandum from William T. Harnett,
Director, Air Quality Policy Division,
Office of Air Quality Planning and
Standards.4 The guidance provides that
to the extent that existing SIPs for ozone
and PM already meet the requirements,
states need only certify that fact to us.
On December 10, 2007, the Governor
of New Mexico submitted a letter
certifying that NMED has evaluated the
New Mexico SIP and found that the SIP
satisfies the requirements of section
110(a)(1) and (2) for the 1997 8-hour
ozone NAAQS. On March 3, 2008, the
Governor of New Mexico submitted a
letter certifying that NMED has
evaluated the New Mexico SIP and
found that the SIP does not satisfy all
the requirements of section 110(a)(1)
and (2) for the 1997 PM 2.5 NAAQS. The
March 3, 2008 letter included a table
with an explanation of how the current
New Mexico SIP meets most of the
requirements of section 110(a)(2) for the
PM 2.5 NAAQS and also a table outlining
what sections of New Mexico’s SIP need
to be revised to comply with the section
110(a)(2) requirements for the PM 2.5
NAAQS.5 On April 19, 2011, NMED
submitted a letter clarifying its
submittals to make clear that the portion
of the PSD SIP that is currently not
3 In the March 27, 2008 action we found that New
Mexico had not submitted a SIP revision that
modified New Mexico’s Prevention of Significant
Deterioration (PSD) SIP for the 1997 8-hour ozone
NAAQS to include NOX as an ozone precursor,
which is necessary for approval of elements
110(a)(2)(C) and the PSD and visibility portion of
element 110(a)(2)(J). On September 21, 2009, New
Mexico submitted the necessary PSD SIP revision.
We approved New Mexico’s NOX as an ozone
precursor submittal on November 26, 2010 at 75 FR
72688.
4 This and any other guidance documents
referenced in this action are in the docket for this
rulemaking.
5 In New Mexico’s March 3, 2008 infrastructure
SIP submittal, the State indicated that, at that time,
the New Mexico SIP did not satisfy all the
infrastructure requirements of section 110(a)(2) for
the 1997 PM2.5 NAAQS. As explained in section III
of this rulemaking and in the TSD, we are
proposing to find that New Mexico’s current SIP
now meets all the infrastructure requirements of
section 110(a)(2) for the 1997 PM 2.5 NAAQS.
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acted upon by EPA (i.e., the portions
from which EPA removed its previous
approval) is not part of its infrastructure
submissions.6 These letters are in the
docket for this rulemaking.
b. Greenhouse Gas (GHG) Component of
PSD Programs
EPA has recently undertaken a series
of actions pertaining to the regulation of
GHGs that, although for the most part
distinct from one another, establish the
overall framework for today’s proposed
action on the New Mexico SIP. Four of
these actions include, as they are
commonly called, the ‘‘Endangerment
Finding’’ and ‘‘Cause or Contribute
Finding,’’ which EPA issued in a single
final action,7 the ‘‘Johnson Memo
Reconsideration,’’ 8 the ‘‘Light-Duty
Vehicle Rule,’’ 9 and the ‘‘Tailoring
Rule.’’ 10 Taken together and in
conjunction with the CAA, these
actions: (1) Established regulatory
requirements for GHGs emitted from
new motor vehicles and new motor
vehicle engines; (2) determined that
such regulations, when they took effect
on January 2, 2011, subjected GHGs
emitted from stationary sources to PSD
requirements; and (3) limited the
applicability of PSD requirements to
GHG sources on a phased-in basis. EPA
took this last action in the Tailoring
Rule, which, more specifically,
established appropriate GHG emission
thresholds for determining the
applicability of PSD requirements to
GHG-emitting sources. In December
2010, EPA followed up on these actions
by issuing the ‘‘PSD SIP Narrowing
6 The April 19, 2011 letter clarified the State’s
December 10, 2007 infrastructure SIP submittal for
the 1997 8-hour ozone standard; the State’s March
3, 2008 infrastructure SIP submittal for the 1997
PM 2.5 standard; and the State’s June 12, 2009
infrastructure SIP submittal for the 2006 PM 2.5
standard. The State’s April 19, 2011 letter is
severable, as it clarifies three separate infrastructure
SIP submittals. At this time, we are only proposing
to take action on the State’s December 10, 2007, and
March 3, 2008 submittals for the 1997 8-hour ozone
and 1997 PM 2.5 standards. We will take action on
the June 12, 2009 submittal for the 2006 PM 2.5
standard in a separate rulemaking.
7 ‘‘Endangerment and Cause or Contribute
Findings for Greenhouse Gases Under Section
202(a) of the Clean Air Act.’’ 74 FR 66496
(December 15, 2009).
8 ‘‘Interpretation of Regulations that Determine
Pollutants Covered by Clean Air Act Permitting
Programs.’’ 75 FR 17004 (April 2, 2010).
9 ‘‘Light-Duty Vehicle Greenhouse Gas Emission
Standards and Corporate Average Fuel Economy
Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010).
10 ‘‘Prevention of Significant Deterioration and
Title V Greenhouse Gas Tailoring Rule; Final Rule.’’
75 FR 31514 (June 3, 2010).
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Rule,’’ 11 in which EPA withdrew its
previous approval of SIP PSD programs
in 24 states, including New Mexico, that
apply to GHG-emitting sources below
the thresholds in the final Tailoring
Rule. The Tailoring Rule and PSD SIP
Narrowing Rule both discuss the states’
ability to provide assurances that they
will have adequate resources to meet the
new GHG PSD permitting requirements
at statutory levels of emissions, and the
PSD SIP Narrowing Rule affected EPA’s
prior approval of portions of a state’s
SIP that do not incorporate thresholds
established under the Tailoring Rule.
On November 10, 2010, New Mexico
adopted revisions to the State’s PSD
rules to implement the GHG thresholds
established in EPA’s GHG Tailoring
Rule and submitted the corresponding
SIP revision to EPA on December 1,
2010. On April 14, 2011, EPA proposed
approval of New Mexico’s GHG rules
submitted on December 1, 2010 (76 FR
20907). EPA intends to take final action
on the December 1, 2010 submittal in a
separate rulemaking no later than EPA’s
final action on New Mexico’s 1997
ozone and PM 2.5 infrastructure SIP
submittals. Additionally, the NMED
submitted a clarification letter to EPA
on April 19, 2011, clarifying that the
portions of the PSD program related to
greenhouse gas permitting that
remained approved after the
promulgation of EPA’s PSD SIP
Narrowing Rule satisfy sections
110(a)(2)(C) and (J) of the Act. As we
discuss further in this notice and in the
TSD, New Mexico currently has
adequate resources to carry out the GHG
component of the currently approved
PSD SIP program, which requires PSD
permitting for sources emitting GHGs at
or above the 75,000/100,000 tons per
year (tpy) threshold specified by the
Tailoring Rule.
D. What elements are required under
Section 110(a)(2)?
The October 2, 2007, EPA guidance
for addressing the SIP infrastructure
elements required under sections
110(a)(1) and (2) for the 1997 ozone and
PM 2.5 NAAQS, provides a list of 14
essential components that States must
include in their SIPs. These are listed in
Table 1 below.
11 ‘‘Limitation of Approval of Prevention of
Significant Deterioration Provisions Concerning
Greenhouse Gas Emitting-Sources in State
Implementation Plans.’’ 75 FR 82536 (December 30,
2010).
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TABLE 1—SECTION 110(A)(2) ELEMENTS REQUIRED IN SIPS
Clean Air Act Citation
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Brief description
110(a)(2)(A) .................................................................................
110(a)(2)(B) .................................................................................
110(a)(2)(C) .................................................................................
110(a)(2)(D)(ii) 12 .........................................................................
110(a)(2)(E) .................................................................................
110(a)(2)(F) .................................................................................
110(a)(2)(G) .................................................................................
110(a)(2)(H) .................................................................................
110(a)(2)(J) 13 ..............................................................................
110(a)(2)(J) ..................................................................................
110(a)(2)(J) ..................................................................................
Section 110(a)(2)(K) .................................................................................
Section 110(a)(2)(L) .................................................................................
Section 110(a)(2)(M) ................................................................................
II. What action is EPA proposing?
emcdonald on DSK2BSOYB1PROD with PROPOSALS
A. Section 110(a)(1) and (2)
EPA is proposing to approve the New
Mexico SIP submittals that identify
where and how the 14 basic
infrastructure elements are in the EPAapproved SIP as specified in section
110(a)(2) of the Act. The New Mexico
submittals do not include revisions to
the SIP, but document how the current
New Mexico SIP already includes the
required infrastructure elements. In
today’s action, we are proposing to find
that the following section 110(a)(2)
12 Section 110(a)(2)(D)(ii) of the Act requires
compliance with sections 115 and 126 of the Act,
relating to international and interstate pollution
abatement, respectively. Under section 126(a)(1),
SIPs must require notification to nearby, affected
states of ‘‘major proposed new (or modified)
sources’’ in either of two instances: (1) when the
source is subject to PSD (section 126(a)(1)(A)); or (2)
when the source ‘‘may significantly contribute to
levels of air pollution in excess’’ of the NAAQS in
air quality control regions in other states (section
126(a)(1)(B)). Any new major stationary source or
major modification in an attainment or
unclassifiable area is subject to PSD. Therefore, in
attainment or unclassifiable areas, any source that
potentially falls under section 126(a)(1)(B) must
also fall under (A). Thus, to the extent that section
126(a)(1)(B) provides any requirements separate
from those in section 126(a)(1)(A), it does so only
for major proposed new or modified sources in
nonattainment areas, that is, for sources subject to
nonattainment NSR. The requirements of section
126(a)(1)(B) should therefore be addressed in states
with nonattainment areas through those states’
nonattainment NSR programs. As explained
elsewhere in this proposed rulemaking,
nonattainment NSR programs are not a subject of
this action, so EPA will not address the
requirements of section 126(a)(1)(B) in the
infrastructure SIPs.
13 Section 110(a)(2)(I) pertains to the
nonattainment planning requirements of part D,
Title I of the Act. This section is not governed by
the 3-year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local
nonattainment area controls are not due within 3
years after promulgation of a new or revised
NAAQS, but are due at the time the nonattainment
area plan requirements are due pursuant to section
172. Thus this action does not cover section
110(a)(2)(I).
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Emission limits and other control measures.
Ambient air quality monitoring/data system.
Program for enforcement of control measures.
Interstate and international transport.
Adequate resources.
Stationary source monitoring system.
Emergency power.
Future SIP revisions.
Consultation with government officials.
Public notification.
Prevention of significant deterioration (PSD) and visibility
protection.
Air quality modeling/data.
Permitting fees.
Consultation/participation by affected local entities.
elements are contained in the current
New Mexico SIP and provide the
infrastructure for implementing the
1997 ozone and PM 2.5 standards:
Emission limits and other control
measures (section 110(a)(2)(A)); ambient
air quality monitoring/data system
(section 110(a)(2)(B)); program for
enforcement of control measures
(section 110(a)(2)(C)); international and
interstate pollution abatement (section
110(a)(2)(D)(ii)); adequate resources
(section 110(a)(2)(E)); stationary source
monitoring system (section 110(a)(2)(F));
emergency power (section 110(a)(2)(G));
future SIP revisions (section
110(a)(2)(H)); consultation with
government officials (section
110(a)(2)(J)); public notification (section
110(a)(2)(J)); PSD and visibility
protection (section 110(a)(2)(J)); air
quality modeling/data (section
110(a)(2)(K)); permitting fees (section
110(a)(2)(L)); and consultation/
participation by affected local entities
(section 110(a)(2)(M)).
the table currently found under 40 CFR
52.1620(e), and included entries in this
table for all EPA approved
nonregulatory provisions in the New
Mexico SIP, including those approved
prior to 1998. We note that we made an
error in not including the already SIP
approved New Mexico Air Pollution
Episode Contingency Plan when we
added this table under 40 CFR
52.1620(e). We are proposing to make a
CFR codification technical correction to
amend the table titled ‘‘EPA Approved
Nonregulatory Provisions and QuasiRegulatory Measures in the New Mexico
SIP’’ to include an entry for the New
Mexico Air Pollution Episode
Contingency Plan approved by EPA into
the SIP on August 21, 1990 (55 FR
34013, 40 CFR 52.1639(a)).15 EPA is
proposing to make this CFR codification
technical correction because it clarifies
that EPA has approved the State’s air
pollution episode provisions into the
New Mexico SIP.
B. CFR Codification Technical
Correction to 40 CFR 52.1620(e)
EPA is proposing to correct a CFR
codification technical error made in the
table titled ‘‘EPA Approved
Nonregulatory Provisions and QuasiRegulatory Measures in the New Mexico
SIP,’’ found at 40 CFR 52.1620(e).14 EPA
approved New Mexico’s Air Pollution
Episode Contingency Plan into the SIP
on August 21, 1990 (55 FR 34013) under
the SIP codification method in existence
at the time. When we changed our SIP
codification method for New Mexico on
July 13, 1998 (63 FR 37493), we added
C. CFR Codification Technical
Corrections to 40 CFR 52.1620(c) and 40
CFR 52.1640(c)(66)(i)(B)
14 40 CFR 52.1620 provides the Identification of
Plan for New Mexico, which lists the EPA-approved
provisions of the SIP for the State, as provided
under section 110 of the Act, 42 U.S.C. 7410, and
40 CFR 51 to meet the NAAQS. New Mexico’s EPA
approved nonregulatory provisions are provided
under 40 CFR 52.1620(e).
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EPA is also proposing to correct two
CFR codification technical errors made
in the table titled ‘‘EPA Approved New
Mexico Regulations,’’ found at 40 CFR
52.1620(c).16 On October 20, 1995, New
Mexico adopted a recodification of the
State’s air quality control regulations
15 The New Mexico Air Pollution Episode
Contingency Plan is applicable statewide outside of
the boundaries of Bernalillo County and Indian
Lands, and was adopted by New Mexico on July 7,
1988, and submitted to EPA as a SIP revision on
August 19, 1988.
16 New Mexico’s air quality regulations approved
by EPA into the SIP, along with the State’s
approval/effective date of the regulations, EPA’s
approval date of the regulations into the SIP, and
the Federal Register notice citation for approval
into the SIP are provided under 40 CFR 52.1620(c).
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(AQCRs).17 New Mexico submitted the
recodification of, and revisions to, the
SIP on January 8, 1996, and EPA
approved these revisions into the SIP on
September 26, 1997 (62 FR 50514). We
would like to clarify that when we
approved the recodification of, and
revisions to, the New Mexico SIP in the
September 26, 1997 rulemaking, we
made a codification error in 40 CFR
52.1620(c) by incorrectly including
entries in the table titled ‘‘EPA
Approved New Mexico Regulations’’ for
part 70 (Operating Permits) and part 71
(Operating Permit Emission Fees) of
20.2 NMAC, which constitute New
Mexico’s Title V permitting program
and the associated permitting fees,
respectively.18 The preamble of the
September 26, 1997 rulemaking
contains a table listing the rules
submitted by New Mexico as a
recodification, which EPA had reviewed
and approved as a recodification to the
New Mexico SIP (62 FR 50514, see
pages 50516–17). This table in the
preamble did not contain part 70 or part
71 of 20.2 NMAC, yet the CFR table
found at 40 CFR 52.1620(c) and the New
Mexico Identification of Plan at 40 CFR
52.1640(c)(66)(i)(B) 19 erroneously
included the two Title V regulations.
The preamble of the September 26, 1997
rulemaking did not act to approve these
two Title V regulations as part of the
New Mexico SIP. Further, we have
never taken any rulemaking action to
approve parts 70 and 71 into the New
Mexico SIP. Therefore, New Mexico’s
Title V permitting program has always
been, and continues to be outside the
scope of the New Mexico SIP.20 In
addition, the table titled ‘‘EPA Approved
New Mexico Regulations,’’ currently
incorrectly lists the EPA approval date
of the recodification of New Mexico’s
regulations in the SIP to be November
25, 1997. Although the Federal Register
citation (62 FR 50514) listed under the
table is correct, the November 25, 1997
17 In New Mexico’s 1995 adoption of the
recodification of the State’s air quality regulations,
the AQCRs existing at the time were renumbered
and reformatted into the current NMAC, as was
required by the New Mexico State Records Center.
18 After construction, a source must obtain an
operating permit, also called a Title V operating
permit, as this requirement comes from Title V of
the Act. Most Title V permits are issued by
approved State and local permitting authorities.
These permits are often called part 70 permits
because the regulations that establish minimum
standards for State permit programs are found at 40
CFR part 70.
19 40 CFR 52.1640 identifies the original New
Mexico SIP and all revisions submitted by New
Mexico that were federally approved prior to
January 1, 1998.
20 New Mexico’s Title V permitting program is
legally not part of the SIP, but was approved by
EPA on November 26, 1996 (61 FR 60032) as the
State’s Title V permitting program.
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date is incorrect and should be changed
to September 26, 1997. EPA is
proposing to amend the table titled
‘‘EPA Approved New Mexico
Regulations,’’ found at 40 CFR
52.1620(c), by deleting the entries for
parts 70 and 71 of 20.2 NMAC and by
changing the EPA approval date of the
62 FR 50514 rulemaking from the
currently listed date of November 25,
1997 to the correct date of September
26, 1997. We are also proposing to
amend 40 CFR 52.1640(c)(66)(i)(B) such
that it reads as follows: ‘‘New Mexico
Administrative Code, Title 20, Chapter
2, Parts 3, 5, 7, 8, 10, 11, 12, 13, 14, 15,
16, 17, 18, 19, 20, 21, 22, 30, 31, 32, 33,
34, 40, 41, 60, 61, 72 (Subparts I, II and
III; Subpart V, Sections 501 and 502),
73, 75, 79, and 80; adopted by the New
Mexico Environmental Improvement
Board on October 20, 1995, and filed
with the State Records and Archives
Center on October 30, 1995.’’ EPA is
proposing to make the CFR codification
technical corrections to 40 CFR
52.1640(c)(66)(i)(B) and to the table
titled ‘‘EPA Approved New Mexico
Regulations,’’ found under 40 CFR
52.1620(c), as indicated above, because
it is necessary to clarify which New
Mexico air quality regulations are
currently approved into the New
Mexico SIP and the EPA approval date
of these regulations into the SIP.21
D. Conversion of Our Conditional
Approval of New Mexico’s PSD Program
to Full Approval and the CFR
Codification Technical Corrections to 40
CFR 52.1634(a) and 40 CFR
52.1640(c)(39)
In reviewing the history of New
Mexico’s PSD program for the purposes
of the infrastructure SIP, we found that
the State’s PSD program was
conditionally approved into the SIP on
February 27, 1987 (52 FR 5964). In the
February 27, 1987 rulemaking, New
Mexico’s PSD program was
conditionally approved by EPA on the
basis that (i) the State would not issue
permits to sources that would require
review under EPA’s stack height
regulations because they would have a
stack height over 65 meters or would
use any other dispersion techniques, as
defined at 40 CFR 51.1(hh); and (ii) as
quickly as possible, the State would
adopt and submit as a plan revision a
regulation that is equivalent to the
regulations in 40 CFR Part 51
promulgated to implement Section 123
of the Act, regarding stack heights. On
May 14, 1985, the Governor of New
21 Any other CFR corrections to the New Mexico
SIP that may be required will be addressed in a
separate future action.
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Fmt 4702
Sfmt 4702
Mexico submitted a letter in which he
committed the State not to issue PSD
permits to sources that would require
review under EPA’s stack height
regulations because they would have
stack heights over 65 meters or would
use any other dispersion techniques, as
defined at 40 CFR 51.1(hh).22 On April
26, 1988, New Mexico submitted as a
SIP revision a new regulation on stack
height requirements to satisfy the
Federal requirements of 40 CFR Part 51.
On November 2, 1988, EPA approved
New Mexico’s stack height regulation
into the SIP (53 FR 44191). Thus,
condition (i) of our February 27, 1987
conditional approval of New Mexico’s
PSD program was met when New
Mexico complied with the Governor’s
May 14, 1985 commitment letter in the
interim, and condition (ii) was met
when we approved New Mexico’s stack
height regulations in the November 2,
1988 rulemaking. Therefore, upon our
approval of New Mexico’s stack height
regulations in the November 2, 1988
rulemaking, New Mexico had fully met
all the conditions of EPA’s February 27,
1987 conditional approval of the State’s
PSD program. However, due to an
administrative oversight, EPA failed to
convert the conditional approval of New
Mexico’s PSD program into a full
approval at that time. We note that the
fact that EPA has not formally converted
the conditional approval to a full
approval has no impact on the State’s
authority to implement the PSD
program. Therefore, we now propose to
convert our February 27, 1987
conditional approval of the State’s PSD
program to a full approval based on our
approval of the State’s stack height
regulations in the November 2, 1988
rulemaking (53 FR 44191).
In accordance with our proposal to
convert our February 27, 1987
conditional approval of New Mexico’s
PSD program to a full approval, we
intend to make codification technical
corrections to 40 CFR 52.1634(a) and 40
CFR 52.1640(c)(39).23 40 CFR 52.1634(a)
currently identifies New Mexico’s PSD
program as meeting the requirements of
part C of the Act for prevention of
significant deterioration of air quality
and as being SIP approved, but does not
explain that we initially conditionally
approved the State’s PSD program on
February 27, 1987, and that New Mexico
has since then met the conditions of our
22 See
40 CFR 52.1640(c)(37)(B).
CFR 52.1634(a) provides for New Mexico’s
SIP approved PSD program. As stated elsewhere in
this rulemaking, 40 CFR 52.1640(c) provides for all
revisions submitted by New Mexico that were
federally approved into the SIP prior to January 1,
1998. 40 CFR 52.1640(c)(39) provides for New
Mexico’s SIP approved stack height regulation.
23 40
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conditional approval. We are proposing
to amend the paragraph at 40 CFR
52.1634(a) to read as follows: ‘‘The plan
submitted by the Governor of New
Mexico on February 21, 1984 (as
adopted by the New Mexico
Environmental Improvement Board
(NMEIB) on January 13, 1984), August
19, 1988 (as revised and adopted by the
NMEIB on July 8, 1988), and July 16,
1990 (as revised and adopted by the
NMEIB on March 9, 1990), Air Quality
Control Regulation 707—Permits,
Prevention of Significant Deterioration
(PSD) and its Supplemental document,
is approved as meeting the requirements
of part C, Clean Air Act, for preventing
significant deterioration of air quality.
Additionally, on November 2, 1988,
EPA approved New Mexico’s stack
height regulation into the SIP (53 FR
44191), thereby satisfying the conditions
of EPA’s conditional approval of the
State’s PSD program on February 27,
1987 (52 FR 5964). Therefore, the
conditional approval is converted to a
full approval when we take final action
on this CFR correction.’’ 40 CFR
52.1640(c)(39) currently identifies New
Mexico’s stack height regulation
submitted on April 26, 1988 as having
been approved into the SIP, but does not
identify that this denotes that New
Mexico has fully satisfied all conditions
of our February 27, 1987 conditional
approval of New Mexico’s PSD program.
We are proposing to amend the
paragraph at 40 CFR 52.1640(c)(39) to
read as follows: ‘‘On April 26, 1988, the
Governor of New Mexico submitted a
revision to the State Implementation
Plan that contained Air Quality Control
Regulation No. 710—Stack Height
Requirements, as adopted by the New
Mexico Environmental Improvement
Board on March 10, 1988. Regulation
No. 710 enables the State to ensure that
the degree of emission limitation
required for the control of any air
pollutant under its SIP is not affected by
that portion of any stack height that
exceeds GEP or by any other dispersion
technique. With EPA’s November 2,
1988, approval of the State’s revision to
the State Implementation Plan to
include Regulation No. 710 (53 FR
44191), the State has satisfied the
conditions of our February 27, 1987
conditional approval of the State’s plan
for preventing significant deterioration
of air quality (52 FR 5964). When we
take final action on this CFR correction,
the conditional approval will be
converted to a full approval.’’
We are proposing the above CFR
codification technical corrections to the
paragraphs at 40 CFR 52.1634(a) and 40
CFR 52.1640(c)(39) because we are
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proposing to convert our February 27,
1987 conditional approval of New
Mexico’s PSD program to a full
approval.
E. SIP Revision to 20.2.3 NMAC
In conjunction with our proposed
finding that the New Mexico SIP meets
the section 110(a)(1) and (2)
infrastructure SIP elements listed above,
we are also proposing to fully approve
a severable portion of a SIP revision
submitted by NMED to EPA on
November 2, 2006. This portion of the
submittal contains a revision to 20.2.3
NMAC (Ambient Air Quality Standards)
and is not a requirement under the
infrastructure SIPs, and therefore our
proposed approval of this revision is
severable from our proposed approval of
New Mexico’s infrastructure SIP
submittals. The revision adds a new
subpart 9 to 20.2.3 NMAC, including
language to ensure that sources being
issued a permit under the State’s minor
source permitting program, found at
20.2.72 NMAC (Construction Permits),
are required to continue to address the
State’s ambient air quality standards in
their application. The revision includes
language in 20.2.3.9 NMAC that
removes the state ambient air quality
standards from being an applicable
requirement under the State’s Title V
permitting program, found at 20.2.70
NMAC (Operating Permits). Because
New Mexico’s Title V program is
outside the scope of the New Mexico
SIP, this revision does not constitute a
relaxation of the current New Mexico
SIP.24 As described above in subsection
C of this section, we made a codification
error in 40 CFR 52.1620(c) by
incorrectly including entries in the table
titled ‘‘EPA Approved New Mexico
Regulations’’ for part 70 (Operating
Permits) and part 71 (Operating Permit
Emission Fees) of 20.2 NMAC, which
are State regulations that have not been
approved into the New Mexico SIP. As
the New Mexico Title V permitting
program, codified at 20.2.70 NMAC, has
not been approved into the New Mexico
SIP, approval of the November 2, 2006
revision to 20.2.3 NMAC is appropriate
and will not constitute a relaxation of
the current New Mexico SIP. The SIP
revision to 20.2.3 NMAC we are
proposing to approve is severable from
the portions of the November 2, 2006
SIP submittal on which we are taking no
action in this rulemaking. By severable,
we mean that the portion of the SIP
revisions we are proposing to approve
can be implemented independently of
the portions on which we are not acting,
without affecting the stringency of the
24 See
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footnote 20 above.
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24427
submitted rules. EPA is not proposing to
take action on any other portions of the
November 2, 2006 SIP revisions in this
proposed rulemaking; EPA intends to
act on the other revisions in a separate
rulemaking. EPA proposes to approve
the portion of the November 2, 2006
revision, as indicated above, because it
clarifies the permitting requirements
under the New Mexico SIP.
III. How has New Mexico addressed the
elements of Section 110(a)(2)?
The New Mexico submittals address
the elements of Section 110(a)(2) as
described below. We provide a more
detailed review and analysis of the New
Mexico infrastructure SIP elements in
the Technical Support Document (TSD),
located in the docket for this
rulemaking.
Enforceable emission limits and other
control measures, pursuant to section
110(a)(2)(A): Section 110(a)(2)(A)
requires that all measures and other
elements in the SIP be enforceable. This
provision does not require the submittal
of regulations or emission limits
developed specifically for attaining the
1997 8-hour ozone and PM2.5 standards.
Those regulations are due later as part
of attainment demonstrations.
The New Mexico Environmental
Improvement Act, found in Chapter 74,
Article 1 of the New Mexico Statutes
Annotated 1978 (denoted NMSA 1978
74–1), created the NMED and the New
Mexico Environmental Improvement
Board (EIB). The New Mexico Air
Quality Control Act codified at NMSA
1978 74–2, delegates authority to the
EIB to adopt, promulgate, publish,
amend and repeal regulations consistent
with the Air Quality Control Act to
attain and maintain NAAQS and
prevent or abate air pollution. See
NMSA 1978 74–2–5(B)(1). The Air
Quality Control Act also designates the
NMED as the State’s air pollution
control agency and the Environmental
Improvement Act provides the NMED
with enforcement authority. The SIP
rule at Title 20 of the New Mexico
Administrative Code (denoted as 20
NMAC) describes NMED as the State’s
air pollution control agency and its
enforcement authority, referencing the
NMSA 1978 (44 FR 21019, April 9,
1979; revised 49 FR 44101, November 2,
1984; recodified approved in 62 FR
50518, September 26, 1997).
The NMED has promulgated rules to
limit and control emissions of PM,
sulfur dioxide (SO2), nitrogen oxides
(NOX) and volatile organic compounds
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(VOCs).25 These rules include emission
limits, control measures, permits, fees,
and compliance schedules and are
found in Title 20, chapter 2 of the
NMAC26 (denoted 20.2 NMAC): 20.2
NMAC parts 3, 5, 7–8, 10–22, 30–34,
40–41, 72–75, and 98–99.
In this proposed action, EPA is not
proposing to approve or disapprove any
existing New Mexico SIP provisions
with regard to excess emissions during
startup, shutdown, or malfunction
(SSM) of operations at a facility.27 EPA
believes that a number of states may
have SSM SIP provisions that are
contrary to the Act and existing EPA
guidance,28 and the Agency plans to
address such state regulations in the
future. In the meantime, EPA
encourages any state having a deficient
SSM provision to take steps to correct
it as soon as possible. Similarly, in this
proposed action, EPA is not proposing
to approve or disapprove any existing
state rules with regard to director’s
discretion or variance provisions. EPA
believes that a number of states may
have such provisions that are contrary
to the Act and existing EPA guidance
(52 FR 45044, November 24, 1987),29
and the Agency plans to take action in
the future to address such state
regulations. In the meantime, EPA
encourages any state having a director’s
discretion or variance provision in its
SIP which is contrary to the Act and
EPA guidance to take steps to correct
the deficiency as soon as possible.
A detailed list of the applicable 20.2
NMAC parts discussed above is
provided in the TSD. New Mexico’s SIP
clearly contains enforceable emission
limits and other control measures,
which are in the Federally enforceable
SIP. EPA is proposing to find that the
New Mexico SIP meets the requirements
of section 110(a)(2)(A) with respect to
the 1997 8-hour ozone and PM2.5
NAAQS.
25 NO and VOCs are precursors to ozone. PM can
X
be emitted directly and secondarily formed; the
latter is the result of NOX and SO2 precursors
combining with ammonia to form ammonium
nitrate and ammonium sulfate.
26 Title 20 addresses Environmental Protection
and chapter 2 addresses Air Quality.
27 EPA approved New Mexico’s current
provisions regarding excess emissions occurring
during startup, shutdown, and malfunction (SSM)
of operations at a facility on September 14, 2009 (74
FR 46910).
28 ‘‘State Implementation Plans (SIPs): Policy
Regarding Excess Emissions During Malfunctions,
Startup, and Shutdown,’’ Memorandum from Steven
A. Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and
Robert Perciasepe, Assistant Administrator for Air
and Radiation, dated August 11, 1999.
29 The section addressing exemptions and
variances is found on p. 45109 of the 1987
rulemaking.
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Ambient air quality monitoring/data
analysis system, pursuant to section
110(a)(2)(B): Section 110(a)(2)(B)
requires SIPs to include provisions for
establishment and operation of ambient
air quality monitors, collecting and
analyzing ambient air quality data, and
making these data available to EPA
upon request. The NMED operates and
maintains a statewide network of air
quality monitors; data are collected,
results are quality assured, and the data
are submitted to EPA’s Air Quality
System30 on a regular basis. New
Mexico’s Statewide Air Quality
Surveillance Network was approved by
EPA on August 6, 1981 (46 FR 40005),
and consists of stations that measure
ambient concentrations of the six
criteria pollutants, including ozone and
PM2.5. The air quality surveillance
network undergoes annual review by
EPA. On July 7, 2010, NMED submitted
its 2010 Annual Air Monitoring
Network Plan (AAMNP) that included
the plans for the 1997 ozone and PM2.5
NAAQS. EPA approved New Mexico’s
2010 AAMNP on January 7, 2011.31 The
NMED Web site provides the ozone and
PM2.5 monitor locations, and current
and historical data (https://
air.nmenv.state.nm.us/).
In summary, New Mexico meets the
requirement to establish, operate, and
maintain an ambient air monitoring
network, collect and analyze the
monitoring data, and make the data
available to EPA upon request. EPA is
proposing to find that the current New
Mexico SIP meets the requirements of
section 110(a)(2)(B) with respect to the
1997 8-hour ozone and PM2.5 NAAQS.
Program for enforcement of control
measures and regulation of the
modification and construction of any
stationary source within the areas
covered by the plan as necessary to
assure that NAAQS are achieved,
including a permit program, as required
by Parts C and D, pursuant to section
110(a)(2)(C): Regarding a program for
enforcement of control measures, as
stated previously, the Air Quality
Control Act designates the NMED as the
State’s air pollution control agency and
the Environmental Improvement Act
provides the NMED with authority to
enforce the state’s environmental
quality rules. The NMED established
rules governing emissions of the criteria
pollutants and their precursors
30 The Air Quality System (AQS) is EPA’s
repository of ambient air quality data. AQS stores
data from over 10,000 monitors, 5000 of which are
currently active. State, Local and Tribal agencies
collect the data and submit it to AQS on a periodic
basis.
31 A copy of our approval letter is available in the
docket for this rulemaking.
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throughout the State and these rules are
in the Federally enforceable SIP. The
rules in 20.2 NMAC parts 3, 5, 7–8, 10–
22, 30–34, 40–41, 72–75, and 98–99
include allowable emission rates,
compliance, control plan requirements,
actual and allowable emissions,
monitoring and testing requirements,
recordkeeping and reporting
requirements, and control schedules.
These rules clarify the boundaries
beyond which regulated entities in New
Mexico can expect enforcement action.
To meet the requirement for having a
program for the regulation of the
modification and construction of any
stationary source within the areas
covered by the plan as necessary to
assure that national ambient air quality
standards are achieved, including a
permit program as required by Parts C
and D, generally, the State is required to
have SIP-approved PSD, Nonattainment,
and Minor NSR permitting programs
adequate to implement the 1997 8-hour
ozone and PM2.5 NAAQS. We are not
evaluating nonattainment-related
provisions, such as the Nonattainment
NSR program required by part D in
110(a)(2)(C) and measures for
attainment required by section
110(a)(2)(I), as part of the infrastructure
SIPs for these two NAAQS because
these submittals are required beyond the
date (3 years from NAAQS
promulgation) that section 110
infrastructure SIP submittals are
required.
PSD programs apply in areas that are
meeting the NAAQS, referred to as areas
in attainment, and in areas for which
there is insufficient information to
designate as either attainment or
nonattainment, referred to as
unclassifiable areas. As described in the
section titled ‘‘What Action is EPA
Proposing?,’’ New Mexico’s PSD
program was conditionally approved
into the SIP on February 27, 1987 (52 FR
5964). Today, we propose to convert the
conditional approval to a full approval
on the basis of our November 2, 1988
approval of New Mexico’s April 26,
1988 submittal to include in the SIP a
new regulation on stack height
requirements to satisfy the Federal
requirements of 40 CFR Part 51.
Subsequent revisions to New Mexico’s
PSD program were approved into the
SIP on August 21, 1990 (55 FR 34013),
May 2, 1991 (56 FR 20137), October 15,
1996 (61 FR 53639), March 10, 2003 (68
FR 11316), December 24, 2003 (68 FR
74483), September 5, 2007 (72 FR
50879), and November 26, 2010 (75 FR
72688).
To meet the requirements of
110(a)(2)(C) for the 1997 ozone
standard, EPA believes the State must
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have updated its PSD rules to treat NOX
as a precursor for ozone (70 FR 71612).
On November 26, 2010, EPA approved
revisions to New Mexico’s PSD SIP for
the 1997 8-hour ozone NAAQS to
include NOX as an ozone precursor (75
FR 72688).
To implement section 110(a)(2)(C) for
the 1997 PM2.5 standard, EPA believes
that States should appropriately
implement the interim policy for
preconstruction (PSD) review as
interpreted by legal rulings.32 States
may follow this approach until May 16,
2011, the date by which we required
states to provide revisions to their PSD
regulations to implement the PM2.5
standard as provided under 73 FR
28321.33 During the transition to SIPapproved PSD requirements for PM2.5,
New Mexico confirmed to EPA by letter
that: (1) it does not use PM10 as a
surrogate for PM2.5 in its permitting
programs; (2) it requires that applicants
include PM2.5 modeling and emissions
in their PSD and minor source permit
applications; and (3) the record for the
NMED’s permitting decision includes an
explanation of how PM2.5 emissions
have been appropriately analyzed and
estimated.34 (See also 75 FR 52692, page
52700; 75 FR 72688, page 72694).
Furthermore, the State has recently
proposed to revise their rules to address
PM2.5 in their PSD program, and expects
to adopt these revisions in May 2011.
The State is planning to submit these
revised PSD rules to EPA as a SIP
revision by May 16, 2011. EPA will act
on this submission in a separate
rulemaking.
New Mexico has the authority to issue
permits under the SIP-approved PSD
program to sources of GHG emissions
(75 FR 82536, page 82536, December 30,
2010).35 The Tailoring Rule established
32 ‘‘Interim Implementation of New Source
Review for PM2.5,’’ Memorandum from John S.
Seitz, Director of Office of Air Quality Planning and
Standards, dated October 23, 1997.
33 The Federal Register notice 73 FR 28321 was
published May 16, 2008.
34 July 23, 2010, letter from Mary Uhl, Bureau
Chief, Air Quality Bureau, New Mexico
Environment Department, to Thomas Diggs,
Associate Director for Air Programs, EPA Region 6.
This letter is in the docket for this rulemaking.
35 On June 24, 2010, the State submitted a letter
to EPA stating that current New Mexico rules
require regulating GHGs at the existing 100/250 tpy
threshold, rather than at the higher thresholds set
in the Tailoring Rule because the State does not
have the authority to apply the meaning of the term
‘‘subject to regulation’’ established in the Tailoring
Rule. New Mexico also submitted a letter on
September 14, 2010, in response to the proposed
GHG SIP Call again confirming that EPA correctly
classified New Mexico as a State with authority to
apply PSD requirements to GHGs. The September
14, 2010, letter also identifies that NMED is
pursuing rulemaking activity to define the terms
‘‘greenhouse gas’’ and ‘‘subject to regulation.’’ These
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thresholds that phase in the
applicability of PSD requirements to
GHG sources, starting with the largest
GHG emitters, and were designed to
relieve the overwhelming administrative
burdens and costs associated with the
dramatic increase in permitting burden
that would have resulted from applying
PSD requirements to GHG emission
increases at or above only the massbased statutory thresholds of 100/250
tpy generally applicable to all PSDregulated pollutants starting on January
2, 2011. However, EPA recognized that
even after it finalized the Tailoring Rule,
many SIPs with approved PSD programs
would, until they were revised,
continue to apply PSD at the statutory
thresholds, even though the states
would not have sufficient resources to
implement the PSD program at those
levels. EPA consequently implemented
its ‘‘PSD SIP Narrowing Rule’’ and
narrowed its approval of those
provisions of previously approved SIPs
of 24 states, including New Mexico, that
apply PSD to GHG emission increases
from sources emitting GHGs below the
Tailoring Rule thresholds (75 FR 82536,
December 30, 2010). Through the PSD
SIP Narrowing Rule, EPA withdrew its
previous approvals of those programs to
the extent the SIPs apply PSD to
increases in GHG emissions from GHGemitting sources below the Tailoring
Rule thresholds. The portions of the
PSD programs regulating GHGs from
GHG-emitting sources with emission
increases at or above the Tailoring Rule
thresholds remained approved. The
effect of EPA narrowing its approval in
this manner is that the provisions of
previously approved SIPs that apply
PSD to GHG emissions increases from
sources emitting GHGs below the
Tailoring Rule thresholds have the
status of having been submitted by the
state but not yet acted upon by EPA (75
FR 82536, December 30, 2010).
On November 10, 2010, New Mexico
adopted revisions to the State’s PSD
rules to implement the GHG thresholds
established in EPA’s GHG Tailoring
Rule and submitted the corresponding
SIP revision to EPA on December 1,
2010. On April 14, 2011, EPA proposed
approval of New Mexico’s GHG rules
two letters are in the docket for this rulemaking. As
explained elsewhere in this rulemaking, on
November 10, 2010, New Mexico adopted revisions
to the State’s PSD rules to implement the GHG
thresholds established in EPA’s GHG Tailoring Rule
and submitted the corresponding SIP revision to
EPA on December 1, 2010. On April 14, 2011, EPA
proposed approval of New Mexico’s GHG rules
submitted on December 1, 2010 (76 FR 20907). EPA
intends to take final action on the December 1, 2010
submittal in a separate rulemaking no later than
EPA’s final action on New Mexico’s 1997 ozone and
PM2.5 infrastructure SIP submittals.
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24429
submitted on December 1, 2010 (76 FR
20907). EPA intends to take final action
on the above proposal in a separate
rulemaking no later than EPA’s final
action on New Mexico’s 1997 ozone and
PM2.5 infrastructure SIP submittals. We
are proposing to find that the current
New Mexico PSD SIP meets the
requirements of section 110(a)(2)(C)
with respect to the 1997 8-hour ozone
and PM2.5 NAAQS, as long as we are
able to fully approve New Mexico’s
GHG submittal on or before our final
action on New Mexico’s 1997 ozone and
PM2.5 infrastructure SIP submittals.
Additionally, New Mexico submitted
a clarification letter to EPA on April 19,
2011, clarifying that the portion of the
GHG PSD program in the State’s
submittal under infrastructure SIP
review is only the portion that remained
approved after EPA’s promulgation of
the PSD SIP Narrowing Rule, which is
the portion that regulates GHG-emitting
sources with GHG emissions at or above
the Tailoring Rule thresholds.
Therefore, if we are unable to fully
approve New Mexico’s GHG submittal,
in the alternative, we are proposing to
find that the current New Mexico PSD
SIP meets section 110(a)(2)(C) with
respect to the 1997 8-hour ozone and
PM2.5 NAAQS on the basis of the State’s
April 19, 2011 clarification letter.
Section 110(a)(2)(C) creates ‘‘a general
duty on States to include a program in
their SIP that regulates the modification
and construction of any stationary
source as necessary to assure that the
NAAQS are achieved’’ (70 FR 71612,
71677). EPA provides states with a
‘‘broad degree of discretion’’ in
implementing their Minor NSR
programs (71 FR 48696, 48700). The
‘‘considerably less detailed’’ regulations
for minor NSR are provided in 40 CFR
51.160 through 51.164. EPA has
determined that New Mexico’s Minor
NSR program adopted pursuant to
section 110(a)(2)(C) of the Act regulates
emissions of all regulated air
contaminants for which there is a
NAAQS (20.2.72.200 NMAC). New
Mexico’s Minor NSR permitting
requirements are found at 20.2.72
NMAC and were approved into the SIP
on May 14, 1973 (38 FR 12702).36 In this
action, EPA is proposing to approve
New Mexico’s infrastructure SIP for the
1997 8-hour ozone and PM2.5 NAAQS
with respect to the general requirement
of section 110(a)(2)(C) to include a
program in the SIP that regulates the
modification and construction of any
36 Revisions to New Mexico’s minor source
permitting program were most recently approved by
EPA into the SIP on September 26, 1997 (62 FR
50514).
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stationary source as necessary to assure
that the NAAQS are achieved. EPA is
not proposing to approve or disapprove
the State’s existing Minor NSR program
itself to the extent that it is inconsistent
with EPA’s regulations governing this
program. EPA believes that a number of
states may have Minor NSR provisions
that are contrary to the existing EPA
regulations for this program. EPA
intends to work with states to reconcile
state Minor NSR programs with EPA’s
regulatory provisions for the program.
The statutory requirements of section
110(a)(2)(C) provide for considerable
flexibility in designing Minor NSR
programs, and EPA believes it may be
time to revisit the regulatory
requirements for this program to give
the states an appropriate level of
flexibility to design a program that
meets their particular air quality
concerns, while assuring reasonable
consistency across the country in
protecting the NAAQS with respect to
new and modified minor sources.
EPA is proposing to find that the
current New Mexico SIP meets the
requirements of section 110(a)(2)(C)
with respect to the 1997 8-hour ozone
and PM2.5 NAAQS.
Interstate and international transport,
pursuant to section 110(a)(2)(D)(ii):
Section 110(a)(2)(D)(ii) of the Act
requires compliance with sections 115
and 126 of the Act, relating to interstate
and international pollution abatement.
Section 115(a) addresses endangerment
of public health or welfare in foreign
countries from pollution emitted in the
United States. Pursuant to section 115,
the Administrator has neither received
nor issued a formal notification that
emissions from New Mexico are
endangering public health or welfare in
a foreign country. Section 126(a) of the
Act requires new or modified sources to
notify neighboring states of potential
impacts from such sources. Under
section 126(a)(1)(A), SIPs must require
notification to nearby, affected states of
‘‘major proposed new (or modified)
sources’’ when the source is subject to
PSD. New Mexico’s SIP approved PSD
program rules at 20.2.74.400 NMAC
satisfy the requirements of section
126(a)(1)(A) by providing that the
NMED must send notice of the proposed
action on PSD permits to, among others,
‘‘any state * * * whose lands may be
affected by emissions from the source or
modification.’’ The State also has no
pending obligations under section 126
of the Act.
EPA is proposing to find that the New
Mexico SIP meets the requirements of
section 110(a)(2)(D)(ii) with respect to
the 1997 8-hour ozone and PM2.5
NAAQS.
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Adequate personnel, funding, and
authority, pursuant to section
110(a)(2)(E): The Department of the
Environment Act provides that the
secretary of the NMED ‘‘shall * * *
employ and fix the compensation of
those persons necessary to discharge his
duties * * *’’ See NMSA 1978 9–7A–
6(B). The NMED is also authorized to
receive State appropriations to
implement environmental programs.
See generally, NMSA 1978 9–7A. There
are Federal sources of funding for the
implementation of the 1997 8-hour
ozone and PM2.5 NAAQS, through, for
example, the CAA sections 103 and 105
grant funds. The NMED receives Federal
funds on an annual basis, under
sections 103 and 105 of the Act, to
support its air quality programs.
Additionally, the State provides funds
equal to 40 percent of the 105 grant fees
it receives.
Fees collected for the Title V and nonTitle V permit programs, and other
inspections, maintenance and renewals
required of other air pollution sources
also provide necessary funds to help
implement the State’s air programs.
Information on permitting fees is
provided in the discussion for section
110(a)(2)(L) below. The Air Quality
Control Act designates the NMED as the
State air pollution control agency for all
purposes under Federal legislation
relating to air pollution and provides
the NMED with the power ‘‘to accept,
receive and administer grants or other
funds or gifts from public and private
agencies, including the Federal
government, or from any person * * *’’
See NMSA 1978 74–2–5.1(F). For more
detail on funding sources, please see the
TSD.
The Air Quality Control Act delegates
authority to the EIB to adopt,
promulgate, publish, amend and repeal
regulations consistent with the Air
Quality Control Act to attain and
maintain national ambient air quality
standards and prevent or abate air
pollution. See NMSA 1978 74–2–
5(B)(1). The Environmental
Improvement Act provides the NMED
with the power ‘‘to enforce the rules,
regulations and orders promulgated by
the board * * *’’ See NMSA 1978 74–
1–6(F). The Air Quality Control Act also
gives the NMED the duty to ‘‘develop
and present to the environmental
improvement board or the local board a
plan for the regulation, control,
prevention or abatement of air pollution
* * *’’ and gives the EIB the authority
to adopt such a plan. See NMSA 1978
74–2–5.1(H) and NMSA 1978 74–2–
5(B)(2). Therefore, the State has
demonstrated it has adequate authority
under its rules and regulations to carry
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out its SIP obligations with respect to
the 1997 8-hour ozone and PM2.5
NAAQS.
As discussed previously in this
rulemaking with regards to section
110(a)(2)(C), on November 10, 2010,
New Mexico adopted revisions to the
State’s PSD rules to implement the GHG
thresholds established in EPA’s GHG
Tailoring Rule and submitted the
corresponding SIP revision to EPA on
December 1, 2010. EPA proposed
approval of these revisions on April 14,
2011 (76 FR 20907). The GHG Tailoring
Rule implemented thresholds
establishing applicability of the PSD
permitting program to GHG-emitting
sources only if they emit GHGs in
amounts above the 75,000/100,000 tpy
of carbon dioxide equivalent (denoted
CO2e). Thus sources in affected states,
including New Mexico, will not be
subject to Federal or state requirements
to obtain permits at the lower 100/250
tpy level. The Tailoring Rule thresholds
were designed to relieve the
overwhelming administrative burdens
and costs associated with the dramatic
increase in permitting burden that
would have resulted from applying PSD
at the statutory levels (100/250 tpy).
EPA intends to take final action on the
above proposal in a separate rulemaking
no later than EPA’s final action on New
Mexico’s 1997 ozone and PM2.5
infrastructure SIP submittals. We are
proposing to find that the current New
Mexico PSD SIP meets section
110(a)(2)(C) with respect to the 1997 8hour ozone and PM2.5 NAAQS, as long
as we are able to fully approve New
Mexico’s GHG submittal on or before
our final action on New Mexico’s 1997
ozone and PM2.5 infrastructure SIP
submittals; or, in the alternative, we are
proposing to find that the current New
Mexico PSD SIP meets section
110(a)(2)(C) with respect to the 1997 8hour ozone and PM2.5 NAAQS on the
basis of the State’s April 19, 2011
clarification letter.
EPA is proposing to find that the New
Mexico SIP meets the requirements of
section 110(a)(2)(E) with respect to the
1997 8-hour ozone and PM2.5 NAAQS.
Stationary source monitoring system,
pursuant to section 110(a)(2)(F): New
Mexico’s regulations at 20.2 NMAC
parts 5, 7–8, 10–20, 30–34, 40–41, and
72–74 require source monitoring for
compliance, recordkeeping and
reporting, and provide for enforcement
with respect to all the NAAQS and their
precursors. These source monitoring
program requirements generate data for,
among other pollutants, ozone, PM2.5,
and the precursors to these pollutants
(VOCs, NOX, and SO2).
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Under the New Mexico SIP rules, the
NMED is required to analyze the
emissions data from point, area, mobile,
and biogenic (natural) sources. The
NMED uses this data to track progress
towards maintaining the NAAQS,
develop control and maintenance
strategies, identify sources and general
emission levels, and determine
compliance with New Mexico and EPA
requirements. The State’s emissions
data are available on the NMED Web
site (https://www.nmenv.state.nm.us).
These rules have been approved by EPA
into the SIP. A list of the rules and
Federal Register citations are provided
in the TSD.
There are two requirements that New
Mexico must meet regarding emissions
inventories (EIs): the EI requirement for
nonattainment areas, and the
requirement to submit annual EI data to
EPA’s National Emissions Inventory
(NEI) database. Because Nonattainment
NSR is outside the scope of this
rulemaking, we are not addressing New
Mexico’s EI for nonattainment areas in
this proposed action. The NEI is EPA’s
central repository for air emissions data.
EPA published the Air Emissions
Reporting Rule (AERR) on December 5,
2008, which modified the requirements
for collecting and reporting air
emissions data (73 FR 76539). The
AERR shortened the time states are
given to report emissions data from 17
to 12 months, giving states one calendar
year to submit emissions data. All states
are required to submit a comprehensive
emissions inventory every three years
and report emissions for certain larger
sources annually through EPA’s online
Emissions Inventory System (EIS).
States report emissions data for the six
criteria pollutants and the precursors
that form them—nitrogen oxides, sulfur
dioxide, ammonia, lead, carbon
monoxide, particulate matter, and
volatile organic compounds. EPA
compiles the emissions data,
supplementing it where necessary, and
releases it to the general public through
the Web site https://www.epa.gov/ttn/
chief/eiinformation.html. The NMED is
current with their submittals to the NEI
database; the 2008 data was submitted
to EPA in 2010. The State’s emissions
data are also available on EPA’s AirData
Web site (https://www.epa.gov/air/data/
index.html).37
EPA is proposing to find that the New
Mexico SIP meets the requirements of
section 110(a)(2)(F) with respect to the
1997 8-hour ozone and PM2.5 NAAQS.
37 The AirData Web site provides access to air
pollution data for the entire United States and
produces reports and maps of air pollution data
based on criteria specified by the user.
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Emergency power, pursuant to section
110(a)(2)(G): Section 110(a)(2)(G)
requires States to provide for authority
to address activities causing imminent
and substantial endangerment to public
health, including contingency plans to
implement the emergency episode
provisions in their SIPs. The Air Quality
Control Act provides the NMED with
authority to address environmental
emergencies, and the NMED has
contingency plans to implement
emergency episode provisions in the
SIP. New Mexico promulgated the ‘‘Air
Pollution Episode Contingency Plan for
New Mexico,’’ which includes
contingency measures, and these
provisions were approved into the SIP
on August 21, 1990 (55 FR 34013). The
criteria for ozone are based on a 1-hour
average ozone level. These episode
criteria and contingency measures are
adequate to address ozone emergency
episodes and are in the Federally
approved SIP.
As explained in the section of this
rulemaking titled ‘‘What Action Is EPA
Proposing?,’’ in this rulemaking we are
also proposing to make a CFR
codification technical correction to
amend the table titled ‘‘EPA Approved
Nonregulatory Provisions And QuasiRegulatory Measures In The New
Mexico SIP’’ under 40 CFR 52.1620(e), to
include an entry for the New Mexico Air
Pollution Episode Contingency Plan
approved by EPA into the SIP on August
21, 1990 (see 55 FR 34013, 40 CFR
52.1639(a)). EPA is proposing to make
this CFR codification technical
correction because it clarifies that EPA
previously approved the State’s air
pollution episode provisions into the
New Mexico SIP.
The 2009 Infrastructure SIP Guidance
for PM2.5 recommends that a state with
at least one monitored 24-hour PM2.5
value exceeding 140.4 μg/m3 since 2006
establish an emergency episode plan
and contingency measures to be
implemented should such level be
exceeded again. The 2006–2010 ambient
air quality monitoring data 38 for New
Mexico do not exceed 140.4 μg/m3. The
PM2.5 levels have consistently remained
below this level (140.4 μg/m3), and
furthermore, the State has appropriate
general emergency powers to address
PM2.5 related episodes to protect the
environment and public health. Given
the State’s low monitored PM2.5 levels,
EPA is proposing the State is not
required to submit an emergency
episode plan and contingency measures
at this time, for the 1997 PM2.5 standard.
38 The
ozone and PM data are available through
AQS. The AQS data for PM are provided in the
docket for this rulemaking.
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Additional detail is provided in the
TSD.
EPA is proposing to find that the New
Mexico SIP meets the requirements of
section 110(a)(2)(G) with respect to the
1997 8-hour ozone and PM2.5 NAAQS.
Future SIP revisions, pursuant to
section 110(a)(2)(H): The Air Quality
Control Act provides that the EIB shall
‘‘* * * adopt, promulgate, publish,
amend, and repeal regulations
consistent with the Air Quality Control
Act to attain and maintain national
ambient air quality standards and
prevent or abate air pollution * * *.’’
See NMSA 1978 74–2–5(B)(1). The
Environmental Improvement Act
provides that the NMED shall, ‘‘* * *
enforce the rules, regulations and orders
promulgated by the board * * *.’’ See
NMSA 1978 74–1–6(F). In addition, the
Air Quality Control Act requires the
NMED to, ‘‘* * * advise, consult,
contract with and cooperate with local
authorities, other states, the Federal
government and other interested
persons or groups in regard to matters
of common interest in the field of air
quality control * * *’’ See NMSA 1978
74–2–5.2(B). Thus, New Mexico has the
authority to revise its SIP from time to
time as may be necessary to take into
account revisions of primary or
secondary NAAQS, or the availability of
improved or more expeditious methods
of attaining such standards.
Furthermore, New Mexico also has the
authority under the above provisions to
revise its SIP in the event the EPA,
pursuant to the Act, finds the SIP to be
substantially inadequate to attain the
NAAQS.
EPA is proposing to find that the New
Mexico SIP meets the requirements of
section 110(a)(2)(H) with respect to the
1997 8-hour ozone and PM2.5 NAAQS.
Consultation with government
officials, pursuant to section
110(a)(2)(J): 39 The Air Quality Control
Act, as codified at NMSA 1978 74–2–6,
provides that, ‘‘no regulations or
emission control requirement shall be
adopted until after a public hearing by
the environmental improvement board
or the local board’’ and provides that, ‘‘at
the hearing, the environmental
improvement board or the local board
shall allow all interested persons
reasonable opportunity to submit data,
views, or arguments orally or in writing
and to examine witnesses testifying at
the hearing.’’ See NMSA 1978 74–2–6(B)
and (D). In addition, the Air Quality
Control Act provides that the NMED
39 Section 110(a)(2)(J) is divided into three
segments: Consultation with government officials;
public notification; and PSD and visibility
protection.
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shall have the power and duty to
‘‘advise, consult, contract with and
cooperate with local authorities, other
states, the Federal government and other
interested persons or groups in regard to
matters of common interest in the field
of air quality control * * *’’ See NMSA
1978 74–2–5.2(B). The State’s SIP
approved PSD rules at 20.2.74.400
NMAC mandate that the NMED shall
provide for public participation and
notification regarding permitting
applications to any other state or local
air pollution control agencies, local
government officials of the city or
county where the source will be located,
and Federal Land Managers (FLM)
whose lands may be affected by
emissions from the source or
modification. The State’s SIP approved
PSD rules at 20.2.74.403 NMAC require
the NMED to consult with FLMs
regarding permit applications for
sources impacting Class I Federal
areas.40 Furthermore, the State of New
Mexico has committed in the SIP to
consult continually with the FLMs on
the review and implementation of the
visibility program and to notify the FLM
of any advance notification or early
consultation with a major new or
modifying source prior to the
submission of the permit application.41
The State’s SIP approved Transportation
Conformity rules at 20.2.99.116 and
20.2.99.124 NMAC require that
interagency consultation and
opportunity for public involvement be
provided before making transportation
conformity determinations and before
adopting applicable SIP revisions on
transportation-related SIPs.42 These
rules are in the Federally-approved SIP.
EPA is proposing to find that the New
Mexico SIP meets the requirements of
this portion of section 110(a)(2)(J) with
respect to the 1997 8-hour ozone and
PM2.5 NAAQS.
Public notification if NAAQS are
exceeded, pursuant to section
110(a)(2)(J): Public notification begins
with the air quality forecast, which
advises the public of conditions capable
of exceeding the NAAQS (see 54 FR
9783). New Mexico’s provisions
regarding public notification of
instances or areas in which any primary
NAAQS was exceeded were approved
into the SIP on August 24, 1983 (48 FR
38466). In addition, the NMED air
monitoring Web site provides live air
40 Areas designated as mandatory Class I Federal
areas consist of national parks exceeding 6,000
acres, wilderness areas and national memorial parks
exceeding 5,000 acres, and all international parks
that were in existence on August 7, 1977. CAA
section 162(a).
41 See 71 FR 4490, published January 27, 2006.
42 See 65 FR 14877.
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quality data for each of the monitoring
stations in New Mexico.43 The Web site
also provides information on the health
effects of ozone, particulate matter, and
other criteria pollutants.
EPA is proposing to find that the New
Mexico SIP meets the requirements of
this portion of section 110(a)(2)(J) with
respect to the 1997 8-hour ozone and
PM2.5 NAAQS.
PSD and visibility protection,
pursuant to section 110(a)(2)(J): This
portion of section 110(a)(2)(J) in part
requires that a state’s SIP meet the
applicable requirements of section
110(a)(2)(C) as relating to PSD programs.
As detailed in the subsection titled
‘‘Program for enforcement of control
measures and regulation of the
modification and construction of any
stationary source * * * pursuant to
section 110(a)(2)(C)’’ of this rulemaking
and in the TSD, New Mexico’s PSD
program was conditionally approved
into the SIP on February 27, 1987 (52 FR
5964). New Mexico has since then met
the conditions of our conditional
approval, so we are proposing to convert
our conditional approval into a full
approval. The State’s PSD program is in
the SIP (52 FR 5964, 53 FR 44191, 55
FR 43013, 56 FR 20137, 61 FR 53639,
68 FR 11316, 68 FR 74483, 72 FR 50879,
and 75 FR 72688). In addition, to meet
the requirements of 110(a)(2)(C) for the
1997 ozone standard, EPA believes the
State must have updated its PSD rules
to treat NOX as a precursor for ozone.
On November 26, 2010, EPA approved
a SIP revision that modified New
Mexico’s PSD SIP for the 1997 8-hour
ozone standard to include NOX as an
ozone precursor (75 FR 72688). To
implement section 110(a)(2)(C) for the
1997 PM2.5 standard, EPA believes that
States should appropriately implement
the interim policy for preconstruction
review, as described above. During the
transition to SIP-approved PSD
requirements for PM2.5, NMED
submitted a letter to EPA clarifying that:
(1) It does not use PM10 as a surrogate
for PM2.5 in its permitting programs; (2)
it requires that applicants include PM2.5
modeling and emissions in their PSD
and minor source permit applications;
and (3) the record for the NMED’s
permitting decision includes an
explanation of how PM2.5 emissions
have been appropriately analyzed and
estimated. Furthermore, the State has
recently proposed to revise their rules to
address PM2.5 in their PSD program, and
expects to adopt these revisions in May
2011. The State is planning to submit to
EPA these revised PSD rules as a SIP
revision by May 16, 2011. The State’s
43 Please
PO 00000
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minor source permitting requirements
were approved at 38 FR 12702. The
portions of the State’s PSD program
related to permitting GHGs at or above
the Tailoring Rule thresholds are
approvable in light of the PSD SIP
Narrowing Rule. As discussed above,
regarding GHG permitting, EPA intends
to take final action on the December 1,
2010 submittal in a separate rulemaking
no later than EPA’s final action on New
Mexico’s 1997 ozone and PM2.5
infrastructure SIP submittals. We are
proposing to find that the current New
Mexico PSD SIP meets section
110(a)(2)(C) with respect to the 1997 8hour ozone and PM2.5 NAAQS, as long
as we are able to fully approve New
Mexico’s GHG submittal on or before
our final action on New Mexico’s 1997
ozone and PM2.5 infrastructure SIP
submittals; or, in the alternative, we are
proposing to find that the current New
Mexico PSD SIP meets section
110(a)(2)(C) with respect to the 1997 8hour ozone and PM2.5 NAAQS on the
basis of the State’s April 19, 2011
clarification letter. EPA is proposing to
find that the New Mexico SIP meets the
PSD requirement of section 110(a)(2)(C).
A more detailed discussion is provided
in subsection 110(a)(2)(C) above and in
the TSD. EPA is proposing to find that
the New Mexico SIP meets the
requirements of this portion of section
110(a)(2)(J) with respect to the 1997 8hour ozone and PM2.5 NAAQS.
EPA approved New Mexico’s
Visibility Protection Plan and approved
a Long-Term Strategy for Visibility
Protection into the New Mexico SIP on
January 27, 2006 (71 FR 4490). The State
submitted a Regional Haze SIP to EPA
on December 1, 2003. On January 15,
2009, we published a ‘‘Finding of
Failure to Submit State Implementation
Plans Required by the 1999 regional
haze rule’’ (74 FR 2392). We found that
New Mexico had failed to submit for our
review and approval a complete SIP for
improving visibility in the nation’s
national parks and wilderness areas by
the required date of December 17, 2007.
Specifically, we found that New Mexico
had failed to submit the plan elements
required by 40 CFR 51.309(g),44 and the
plan element required by 40 CFR
51.309(d)(4), which requires BART for
stationary source emissions of NOX and
PM under either 40 CFR 51.308(e)(1) or
51.308(e)(2).45 On January 13, 2009,
New Mexico submitted a letter to EPA,
44 40 CFR 51.309(g) concerns the reasonable
progress requirements for areas other than the 16
Class I areas covered by the Grand Canyon
Visibility Transport Commission Report.
45 New Mexico has the option to submit a
Regional Haze SIP under either section 51.308 or
section 51.309.
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clarifying that they intended to submit
a Regional Haze SIP revision in 2009 to
address the requirements of 40 CFR
51.309(d)(4) and 40 CFR 51.309(g).46
New Mexico has since stated that they
intend to make this necessary
submission in 2011. To date, the State
has not made a Regional Haze SIP
submission. The State proposed to
adopt a Regional Haze SIP on February
28, 2011, and the public comment
period will run through June 1, 2011.
EPA will take action separately on New
Mexico’s Regional Haze SIP once the
State makes this submittal. With regard
to the applicable requirements for
visibility protection, EPA recognizes
that States are subject to visibility and
regional haze program requirements
under Part C of the Act (which includes
sections 169A and 169B). In the event
of the establishment of a new NAAQS,
however, the visibility and regional
haze program requirements under part C
do not change. Thus, we find that there
is no new visibility obligation
‘‘triggered’’ under section 110(a)(2)(J)
when a new NAAQS becomes effective;
and as such, visibility protection
requirements are not relevant for
purposes of this action. This would be
the case even in the event a secondary
PM2.5 NAAQS for visibility is
established, because this NAAQS would
not affect visibility requirements under
part C. EPA is therefore proposing to
find that the New Mexico SIP meets the
requirements of this portion of section
110(a)(2)(J) with respect to the 1997 8hour ozone and PM2.5 NAAQS.
Air quality modeling and submission
of data, pursuant to section 110(a)(2)(K):
The Air Quality Control Act authorizes
NMED to ‘‘develop facts and make
investigations and studies,’’ thereby
providing for the functions of
environmental air quality assessment.
As an example, New Mexico submitted
modeling and control measures in a SIP
revision to demonstrate attainment of
the 1997 8-hour ozone standard.47 The
modeling and control measures in the
SIP revision were approved by EPA and
adopted into the SIP.
This section of the Act also requires
that a SIP provide for the submission of
data related to such air quality modeling
to the EPA upon request. The Air
Quality Control Act authorizes NMED to
cooperate with the Federal government
in regard to matters of common interest
46 January 13, 2009, letter from Bill Richardson,
Governor of New Mexico, to Mayor Richard Greene,
Regional Administrator, EPA Region 6. This letter
is in the docket for this rulemaking.
47 See the Attainment Demonstration for the San
Juan County Early Action Compact Area, approved
by EPA and adopted into the SIP on August 17,
2005 (70 FR 48285).
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in the field of air quality control,
thereby allowing it to make this
submission to EPA. See NMSA 1978
74–2–5.2(B).
EPA is proposing to find that the New
Mexico SIP meets the requirements of
section 110(a)(2)(K) with respect to the
1997 8-hour ozone and PM2.5 NAAQS.
Permitting fees, pursuant to section
110(a)(2)(L): The Air Quality Control
Act provides the EIB with the legal
authority for establishing an emission
fee schedule and a construction permit
fee schedule to recover the reasonable
costs of acting on permit applications,
implementing, and enforcing permits.
See NMSA 1978 74–2–7. New Mexico’s
Permit Fee System was approved by
EPA on July 17, 1991 (56 FR 32511).
New Mexico’s Permit Fee System
implements a fee system for all
preconstruction air permits issued by
NMED. New Mexico’s regulations for
construction permit fees are found at
20.2.75 NMAC. The State’s Title V
program and associated fees legally are
not part of the SIP, but were approved
by EPA on November 26, 1996 (61 FR
60032) as part of the New Mexico Title
V Program. EPA is reviewing the New
Mexico Title V program, including the
Title V fee structure, separate from this
action. Because the Title V program and
associated fees legally are not part of the
SIP, the infrastructure SIP action we are
proposing today does not preclude EPA
from taking future action regarding New
Mexico’s Title V program.
EPA is proposing to find that the New
Mexico SIP meets the requirements of
section 110(a)(2)(L) with respect to the
1997 8-hour ozone and PM2.5 NAAQS.
Consultation/participation by affected
local entities, pursuant to section
110(a)(2)(M): As indicated above, the
Air Quality Control Act provides that,
‘‘no regulations or emission control
requirement shall be adopted until after
a public hearing by the environmental
improvement board or the local board’’
and provides that, ‘‘at the hearing, the
environmental improvement board or
the local board shall allow all interested
persons reasonable opportunity to
submit data, views, or arguments orally
or in writing and to examine witnesses
testifying at the hearing.’’ See NMSA
1978 74–2–6(B) and (D). In addition, the
Air Quality Control Act provides that
the NMED shall have the power and
duty to ‘‘advise, consult, contract with
and cooperate with local authorities,
other states, the Federal government and
other interested persons or groups in
regard to matters of common interest in
the field of air quality control * * *’’
See NMSA 1978 74–2–5.2(B). New
Mexico’s SIP approved PSD regulations
at 20.2.74.400 NMAC mandate that the
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24433
NMED shall provide for public
participation and notification regarding
permitting applications to any other
state or local air pollution control
agencies, local government officials of
the city or county where the source will
be located, and FLMs whose lands may
be affected by emissions from the source
or modification. New Mexico’s SIP
approved Transportation Conformity
regulations at 20.2.99.116 and
20.2.99.124 NMAC require that
interagency consultation and
opportunity for public involvement be
provided before making transportation
conformity determinations and before
adopting applicable SIP revisions on
transportation-related SIPs.48
EPA is proposing to find that the New
Mexico SIP meets the requirements of
section 110(a)(2)(M) with respect to the
1997 8-hour ozone and PM2.5 NAAQS.
IV. Proposed Action
We are proposing to approve the
submittals provided by the State of New
Mexico to demonstrate that the New
Mexico SIP meets the requirements of
Section 110(a)(1) and (2) of the Act for
the 1997 8-hour ozone and PM2.5
NAAQS. We are proposing to find that
the current New Mexico SIP meets the
infrastructure elements listed below:
Emission limits and other control
measures (110(a)(2)(A) of the Act);
Ambient air quality monitoring/data
system (110(a)(2)(B) of the Act);
Program for enforcement of control
measures (110(a)(2)(C) of the Act);
Interstate and international transport
(110(a)(2)(D)(ii) of the Act);
Adequate resources (110(a)(2)(E) of
the Act);
Stationary source monitoring system
(110(a)(2)(F) of the Act);
Emergency power (110(a)(2)(G) of the
Act);
Future SIP revisions (110(a)(2)(H) of
the Act);
Consultation with government
officials (110(a)(2)(J) of the Act);
Public notification (110(a)(2)(J) of the
Act);
Prevention of significant deterioration
and visibility protection (110(a)(2)(J) of
the Act);
Air quality modeling data
(110(a)(2)(K) of the Act);
Permitting fees (110(a)(2)(L) of the
Act); and
Consultation/participation by affected
local entities (110(a)(2)(M) of the Act).
EPA is also proposing to make CFR
codification technical corrections to
amend the following:
1. The table titled ‘‘EPA Approved
Nonregulatory Provisions And Quasi48 See
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emcdonald on DSK2BSOYB1PROD with PROPOSALS
Regulatory Measures In The New
Mexico SIP,’’ found under 40 CFR
52.1620(e), by including an entry for
New Mexico’s already SIP approved Air
Pollution Episode Contingency Plan.
2. The table titled ‘‘EPA Approved
New Mexico Regulations,’’ found under
40 CFR 52.1620(c), by (i) deleting
entries for part 70 (Operating Permits)
and part 71 (Operating Permit Emission
Fees) of 20.2 NMAC and (ii) correcting
the currently listed EPA approval date
for the recodification of New Mexico’s
air quality regulations in the SIP.
3. 40 CFR 52.1640(c)(66)(i)(B), by
amending the paragraph such that it
correctly identifies the State regulations
submitted by the State and approved by
EPA into the New Mexico SIP.
4. 40 CFR 52.1634(a) and 40 CFR
52.1640(c)(39), by amending each
paragraph such that it identifies that
New Mexico has fully met all conditions
of our February 27, 1987 conditional
approval of New Mexico’s PSD program
such that our conditional approval is
converted to a full approval.
We are also proposing to convert our
February 27, 1987, conditional approval
of New Mexico’s PSD program (52 FR
5964), to a full approval based on the
November 2, 1988, approval of New
Mexico’s stack height regulations (53 FR
44191), at which point New Mexico
fully met the condition in the
conditional approval.
Lastly, EPA is proposing to approve a
severable revision to regulation 20.2.3
NMAC (Ambient Air Quality
Standards), which was submitted by
New Mexico on November 2, 2006. The
revision to 20.2.3 NMAC removes the
state ambient air quality standards from
being an applicable requirement under
the State’s Title V permitting program,
found at 20.2.70 NMAC (Operating
Permits). The revision also adds
language to ensure that sources being
issued a permit under the State’s minor
source permitting program, found at
20.2.72 NMAC (Operating Permits), are
required to continue to address the
State’s ambient air quality standards in
their application.
EPA is proposing these actions in
accordance with section 110 and part C
of the Act and EPA’s regulations and is
consistent with EPA guidance.
V. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the Clean Air Act.
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 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994). In
addition, this rule does not have Tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), because the SIP is not approved
to apply in Indian country located in the
state, and EPA notes that it will not
impose substantial direct costs on Tribal
governments or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxides, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Volatile organic
compounds.
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Authority: 42 U.S.C. 7401 et seq.
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Dated: April 22, 2011.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2011–10569 Filed 4–29–11; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 0 and 1
[GC Docket No. 10–43; FCC 11–11]
Commission’s Ex Parte Rules and
Other Procedural Rules
Federal Communications
Commission.
ACTION: Further notice of proposed
rulemaking
AGENCY:
In this document the
Commission seeks comment on
amending the rules to require that
notices of ex parte discussions disclose
real parties-in-interest. The change was
proposed because the existing rules do
not enable interested parties to know
whose interests are being represented
when a contact is made. By requiring
the disclosure of this information the
proposed amendment would increase
transparency and openness in
Commission proceedings. The FNPRM
was adopted in conjunction with a
Report and Order amending the ex parte
rules, which is published elsewhere in
this Federal Register.
DATES: Pursuant to §§ 1.415 and 1.419 of
the Commission’s rules, 47 CFR 1.415,
1.419, interested parties may file
comments on or before June 16, 2011
and reply comments on or before July
18, 2011. Written comments on the
Paperwork Reduction Act proposed
information collection requirements
must be submitted by the public, Office
of Management and Budget (OMB), and
other interested parties on or before July
1, 2011.
ADDRESSES: You may submit comments,
identified by GC Docket No. 10–43, by
any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Federal Communications
Commission’s Web Site: https://
fjallfoss.fcc.gov/ecfs2/. Follow the
instructions for submitting comments.
• People with Disabilities: Contact the
FCC to request reasonable
accommodations (accessible format
documents, sign language interpreters,
CART, etc.) by e-mail: FCC504@fcc.gov
or phone: 202–418–0530 or TTY: 202–
418–0432.
In addition to filing comments with
the Office of the Secretary, a copy of any
SUMMARY:
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]]>Agencies
[Federal Register Volume 76, Number 84 (Monday, May 2, 2011)]
[Proposed Rules]
[Pages 24421-24434]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10569]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2009-0647; FRL-9301-1]
Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Section 110(a)(2) Infrastructure Requirements for 1997 8-
Hour Ozone and Fine Particulate Matter National Ambient Air Quality
Standards; New Mexico Ambient Air Quality Standards; Approval of New
Mexico's PSD Program; CFR Codification Technical Corrections
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve submittals from the State of New
Mexico pursuant to the Clean Air Act (CAA or Act) that address the
infrastructure elements specified in the CAA section 110(a)(2),
necessary to implement, maintain, and enforce the 1997 8-hour ozone and
1997 fine particulate matter (PM2.5) national ambient air
quality standards (NAAQS
[[Page 24422]]
or standards). We are proposing to find that the current New Mexico
State Implementation Plan (SIP) meets the following infrastructure
elements for the 1997 8-hour ozone NAAQS and the 1997 PM2.5
NAAQS: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K),
(L), and (M). EPA is also proposing to approve a November 2, 2006, SIP
revision to regulation 20.2.3 of the New Mexico Administrative Code
(NMAC) (Ambient Air Quality Standards), to remove the state ambient air
quality standards from being an applicable requirement under the
State's Title V permitting program, found at 20.2.70 NMAC (Operating
Permits). EPA is also proposing to correct an administrative oversight
by converting our February 27, 1987, conditional approval of New
Mexico's PSD program (52 FR 5964) to a full approval based on the
November 2, 1988, approval of New Mexico's stack height regulations (53
FR 44191), at which point New Mexico fully met the condition in the
conditional approval. Please note the fact that we had not formally
converted the February 27, 1987 conditional approval to a full
approval, yet this had no impact on New Mexico's authority to implement
the PSD program. Lastly, EPA is proposing to make a number of U.S. Code
of Federal Regulations (CFR) codification technical corrections to
amend the description of the approved New Mexico SIP. This action is
being taken under section 110 and part C of the Act.
DATES: Comments must be received on or before June 1, 2011.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2009-0647, by one of the following methods:
Federal Rulemaking Portal: https://www.regulations.gov.
Follow the online instructions for submitting comments.
U.S. EPA Region 6 ``Contact Us'' Web site: https://epa.gov/region6/r6comment.htm. Please click on ``6PD (Multimedia)'' and select
``Air'' before submitting comments.
E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please
also send a copy by e-mail to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not
on legal holidays. Special arrangements should be made for deliveries
of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2009-0647. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
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Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in https://www.regulations.gov or in hard copy at the Air Planning
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an
appointment. If possible, please make the appointment at least two
working days in advance of your visit. There will be a fee of 15 cents
per page for making photocopies of documents. On the day of the visit,
please check in at the EPA Region 6 reception area at 1445 Ross Avenue,
Suite 700, Dallas, Texas.
The State submittal is also available for public inspection during
official business hours by appointment: New Mexico Environment
Department (NMED), Air Quality Bureau, 1190 St. Francis Drive, Santa
Fe, New Mexico 87502.
FOR FURTHER INFORMATION CONTACT: Ms. Dayana Medina, Air Planning
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7241;
fax number 214-665-6762; e-mail address medina.dayana@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' means EPA.
Table of Contents
I. Background
A. What are the National Ambient Air Quality Standards?
B. What is a SIP?
C. What is the background for this rulemaking?
a. Section 110(a)(1) and (2)
b. Greenhouse Gas (GHG) Component of PSD Programs
D. What elements are required under Section 110(a)(2)?
II. What action is EPA proposing?
A. Section 110(a)(1) and (2)
B. CFR Codification Technical Correction to 40 CFR 52.1620(e)
C. CFR Codification Technical Corrections to 40 CFR 52.1620(c)
and 40 CFR 52.1640(c)(66)(i)(B)
D. Conversion of Our Conditional Approval of New Mexico's PSD
Program to Full Approval and CFR Codification Technical Corrections
to 40 CFR 52.1634(a) and 40 CFR 52.1640(c)(39)
E. SIP Revision to 20.2.3 NMAC
III. How has New Mexico addressed the elements of Section 110(a)(2)?
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background
A. What are the National Ambient Air Quality Standards?
Section 109 of the Act requires EPA to establish NAAQS for
pollutants that
[[Page 24423]]
``may reasonably be anticipated to endanger public health and
welfare,'' and to develop a primary and secondary standard for each
NAAQS. The primary standard is designed to protect human health with an
adequate margin of safety, and the secondary standard is designed to
protect public welfare and the environment. EPA has set NAAQS for six
common air pollutants, referred to as criteria pollutants: carbon
monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur
dioxide. These standards present state and local governments with the
minimum air quality levels they must meet to comply with the Act. Also,
these standards provide information to residents of the United States
about the air quality in their communities.
B. What is a SIP?
The SIP is a set of air pollution regulations, control strategies,
other means or techniques, and technical analyses developed by the
state, to ensure that the state meets the NAAQS. The SIP is required by
section 110 and other provisions of the Act. These SIPs can be
extensive, containing state regulations or other enforceable documents
and supporting information such as emissions inventories, monitoring
networks, and modeling demonstrations. Each state must submit these
regulations and control strategies to EPA for approval and
incorporation into the Federally enforceable SIP. Each Federally
approved SIP protects air quality primarily by addressing air pollution
at its point of origin.
C. What is the background for this rulemaking?
a. Section 110(a)(1) and (2)
On July 18, 1997, we promulgated new and revised NAAQS for ozone
(62 FR 38856) and PM (62 FR 38652). For ozone, we set an 8-hour
standard of 0.08 parts per million (ppm) to replace the 1-hour standard
of 0.12 ppm. For PM, we set a new annual and a new 24-hour NAAQS for
particles with an aerodynamic diameter less than or equal to a nominal
2.5 micrometers (denoted PM2.5). The annual PM2.5
standard was set at 15 micrograms per cubic meter ([mu]g/m\3\). The 24-
hour PM2.5 standard was set at 65 [mu]g/m\3\. For more
information on these standards, please see the 1997 Federal Register
notices (62 FR 38856 and 62 FR 38652).
Under sections 110(a)(1) and (2) of the Act, states are required to
submit SIPs that provide for the implementation, maintenance, and
enforcement (the infrastructure) of a new or revised NAAQS within three
years following the promulgation of the NAAQS, or within such shorter
period as EPA may prescribe. Section 110(a)(2) lists the specific
infrastructure elements that must be incorporated into the SIPs,
including for example, requirements for air pollution control measures,
and monitoring that are designed to assure attainment and maintenance
of the NAAQS. A table listing all 14 infrastructure elements is
included in subsection D of section I of this proposed rulemaking.\1\
Thus states were required to submit such SIPs for the 1997 8-hour ozone
and PM2.5 NAAQS to EPA no later than June 2000.\2\ However,
intervening litigation over the 1997 8-hour ozone and PM2.5
NAAQS created uncertainty about how to proceed and many states did not
provide the required ``infrastructure'' SIP submission for these newly
promulgated NAAQS.
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\1\ Two elements identified in section 110(a)(2) are not
governed by the 3-year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within 3 years after promulgation of a new or
revised NAAQS, but rather are due at the time the nonattainment area
plan requirements are due pursuant to section 172. These
requirements are: (i) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D Title I of the CAA and (ii) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D Title I of the CAA. Therefore, this action
does not cover these specific SIP elements. This action also does
not pertain to section 110(a)(2)(D)(i). Section 110(a)(2)(D)(i)
contains four distinct requirements, or ``prongs,'' related to the
impacts of interstate transport. The Interstate Transport SIP must
prevent sources in the State from emitting pollutants in amounts
which will: (1) Contribute significantly to nonattainment of the
NAAQS in other states; (2) interfere with maintenance of the NAAQS
in other states; (3) interfere with provisions to prevent
significant deterioration of air quality in other states; or (4)
interfere with efforts to protect visibility in other states. EPA
published a finding on April 25, 2005 (70 FR 21147) that all states
had failed to submit SIPs addressing interstate transport for the 8-
hour ozone and PM2.5 NAAQS, as required by section
110(a)(2)(D)(i). Furthermore, there is a consent decree in place for
seven states in the western United States, including New Mexico, to
meet the requirements of section 110(a)(2)(D)(i) with regard to the
1997 8-hour ozone and PM2.5 NAAQS (74 FR 64076, December
7, 2009). Under the consent decree, for each of these seven states,
EPA is required to fully approve SIPs and/or promulgate FIPs that
satisfy the four ``prongs'' of section 110(a)(2)(D)(i) by specified
dates. In prior actions, we approved the New Mexico SIP submittal
for (1) the ``significant contribution to nonattainment prong'' of
section 110(a)(2)(D)(i) (75 FR 33174, June 11, 2010) and (2) the
``interfere with maintenance'' and ``interfere with measures to
prevent significant deterioration'' prongs of section
110(a)(2)(D)(i) (75 FR 72588, November 26, 2010). To address the
fourth prong of section 110(a)(2)(D)(i), we proposed to disapprove
the New Mexico Interstate Transport SIP provisions that address the
requirement that emissions from New Mexico sources do not interfere
with measures required in the SIP of any other state to protect
visibility (76 FR 491, January 5, 2011). In the same rulemaking, we
proposed to promulgate a FIP in order to prevent emissions from New
Mexico sources from interfering with other states' measures to
protect visibility, and to implement nitrogen oxides
(NOX) and sulfur dioxide (SO2) emission limits
necessary at one source to prevent such interference and to address
the requirement for best available retrofit technology (BART) for
NOX for this same source. For the 1997 ozone and
PM2.5 NAAQS, the requirements of section 110(a)(2)(D)(i)
are being addressed separately and are not included in the
infrastructure SIPs.
\2\ EPA issued a revised 8-hour ozone standard on March 27, 2008
(73 FR 16436). On September 16, 2009, the EPA Administrator
announced that EPA would take rulemaking action to reconsider the
2008 primary and secondary ozone NAAQS. On January 19, 2010, EPA
proposed to set different primary and secondary ozone standards than
those set in 2008 to provide requisite protection of public health
and welfare, respectively (75 FR 2938). The final reconsidered ozone
NAAQS have yet to be promulgated. This rulemaking does not address
the 2008 ozone standard.
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On March 4, 2004, Earthjustice submitted a notice of intent to sue
related to EPA's failure to issue findings of failure to submit related
to the infrastructure requirements for the 1997 8-hour ozone and
PM2.5 NAAQS. EPA entered into a consent decree with
Earthjustice which required EPA, among other things, to complete a
Federal Register notice announcing EPA's determinations pursuant to
section 110(k)(1)(B) of the Act as to whether each state had made
complete submissions to meet the requirements of section 110(a)(2) for
the 1997 8-hour ozone NAAQS by December 15, 2007. Subsequently, EPA
received an extension of the date to complete this Federal Register
notice until March 17, 2008, based upon agreement to make the findings
with respect to submissions made by January 7, 2008. In accordance with
the consent decree, EPA made completeness findings for each state based
upon what the Agency received from each state as of January 7, 2008.
With regard to the 1997 PM2.5 NAAQS, EPA entered into a
consent decree with Earthjustice which required EPA, among other
things, to complete a Federal Register notice announcing EPA's
determinations pursuant to section 110(k)(1)(B) of the Act as to
whether each state had made complete submissions to meet the
requirements of section 110(a)(2) for the 1997 PM2.5 NAAQS
by October 5, 2008.
On March 27, 2008, and October 22, 2008, we published findings
concerning whether states had made the necessary 110(a)(2) submissions
for the 1997 ozone (73 FR 16205) and PM2.5 standards (73 FR
62902). In the March 27, 2008 action, we found that New Mexico had made
a submission that addressed some, but not all of the section 110(a)(2)
requirements of the Act necessary to implement the 1997
[[Page 24424]]
8-hour ozone NAAQS.\3\ In the October 22, 2008 action, we found that
New Mexico had made a complete SIP submission that provides for the
basic program elements specified in section 110(a)(2) of the Act
necessary to implement the 1997 PM2.5 NAAQS.
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\3\ In the March 27, 2008 action we found that New Mexico had
not submitted a SIP revision that modified New Mexico's Prevention
of Significant Deterioration (PSD) SIP for the 1997 8-hour ozone
NAAQS to include NOX as an ozone precursor, which is
necessary for approval of elements 110(a)(2)(C) and the PSD and
visibility portion of element 110(a)(2)(J). On September 21, 2009,
New Mexico submitted the necessary PSD SIP revision. We approved New
Mexico's NOX as an ozone precursor submittal on November
26, 2010 at 75 FR 72688.
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On October 2, 2007, we issued ``Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' Memorandum
from William T. Harnett, Director, Air Quality Policy Division, Office
of Air Quality Planning and Standards.\4\ The guidance provides that to
the extent that existing SIPs for ozone and PM already meet the
requirements, states need only certify that fact to us.
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\4\ This and any other guidance documents referenced in this
action are in the docket for this rulemaking.
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On December 10, 2007, the Governor of New Mexico submitted a letter
certifying that NMED has evaluated the New Mexico SIP and found that
the SIP satisfies the requirements of section 110(a)(1) and (2) for the
1997 8-hour ozone NAAQS. On March 3, 2008, the Governor of New Mexico
submitted a letter certifying that NMED has evaluated the New Mexico
SIP and found that the SIP does not satisfy all the requirements of
section 110(a)(1) and (2) for the 1997 PM 2.5 NAAQS. The
March 3, 2008 letter included a table with an explanation of how the
current New Mexico SIP meets most of the requirements of section
110(a)(2) for the PM 2.5 NAAQS and also a table outlining
what sections of New Mexico's SIP need to be revised to comply with the
section 110(a)(2) requirements for the PM 2.5 NAAQS.\5\ On
April 19, 2011, NMED submitted a letter clarifying its submittals to
make clear that the portion of the PSD SIP that is currently not acted
upon by EPA (i.e., the portions from which EPA removed its previous
approval) is not part of its infrastructure submissions.\6\ These
letters are in the docket for this rulemaking.
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\5\ In New Mexico's March 3, 2008 infrastructure SIP submittal,
the State indicated that, at that time, the New Mexico SIP did not
satisfy all the infrastructure requirements of section 110(a)(2) for
the 1997 PM2.5 NAAQS. As explained in section III of this
rulemaking and in the TSD, we are proposing to find that New
Mexico's current SIP now meets all the infrastructure requirements
of section 110(a)(2) for the 1997 PM 2.5 NAAQS.
\6\ The April 19, 2011 letter clarified the State's December 10,
2007 infrastructure SIP submittal for the 1997 8-hour ozone
standard; the State's March 3, 2008 infrastructure SIP submittal for
the 1997 PM 2.5 standard; and the State's June 12, 2009
infrastructure SIP submittal for the 2006 PM 2.5
standard. The State's April 19, 2011 letter is severable, as it
clarifies three separate infrastructure SIP submittals. At this
time, we are only proposing to take action on the State's December
10, 2007, and March 3, 2008 submittals for the 1997 8-hour ozone and
1997 PM 2.5 standards. We will take action on the June
12, 2009 submittal for the 2006 PM 2.5 standard in a
separate rulemaking.
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b. Greenhouse Gas (GHG) Component of PSD Programs
EPA has recently undertaken a series of actions pertaining to the
regulation of GHGs that, although for the most part distinct from one
another, establish the overall framework for today's proposed action on
the New Mexico SIP. Four of these actions include, as they are commonly
called, the ``Endangerment Finding'' and ``Cause or Contribute
Finding,'' which EPA issued in a single final action,\7\ the ``Johnson
Memo Reconsideration,'' \8\ the ``Light-Duty Vehicle Rule,'' \9\ and
the ``Tailoring Rule.'' \10\ Taken together and in conjunction with the
CAA, these actions: (1) Established regulatory requirements for GHGs
emitted from new motor vehicles and new motor vehicle engines; (2)
determined that such regulations, when they took effect on January 2,
2011, subjected GHGs emitted from stationary sources to PSD
requirements; and (3) limited the applicability of PSD requirements to
GHG sources on a phased-in basis. EPA took this last action in the
Tailoring Rule, which, more specifically, established appropriate GHG
emission thresholds for determining the applicability of PSD
requirements to GHG-emitting sources. In December 2010, EPA followed up
on these actions by issuing the ``PSD SIP Narrowing Rule,'' \11\ in
which EPA withdrew its previous approval of SIP PSD programs in 24
states, including New Mexico, that apply to GHG-emitting sources below
the thresholds in the final Tailoring Rule. The Tailoring Rule and PSD
SIP Narrowing Rule both discuss the states' ability to provide
assurances that they will have adequate resources to meet the new GHG
PSD permitting requirements at statutory levels of emissions, and the
PSD SIP Narrowing Rule affected EPA's prior approval of portions of a
state's SIP that do not incorporate thresholds established under the
Tailoring Rule. On November 10, 2010, New Mexico adopted revisions to
the State's PSD rules to implement the GHG thresholds established in
EPA's GHG Tailoring Rule and submitted the corresponding SIP revision
to EPA on December 1, 2010. On April 14, 2011, EPA proposed approval of
New Mexico's GHG rules submitted on December 1, 2010 (76 FR 20907). EPA
intends to take final action on the December 1, 2010 submittal in a
separate rulemaking no later than EPA's final action on New Mexico's
1997 ozone and PM 2.5 infrastructure SIP submittals.
Additionally, the NMED submitted a clarification letter to EPA on April
19, 2011, clarifying that the portions of the PSD program related to
greenhouse gas permitting that remained approved after the promulgation
of EPA's PSD SIP Narrowing Rule satisfy sections 110(a)(2)(C) and (J)
of the Act. As we discuss further in this notice and in the TSD, New
Mexico currently has adequate resources to carry out the GHG component
of the currently approved PSD SIP program, which requires PSD
permitting for sources emitting GHGs at or above the 75,000/100,000
tons per year (tpy) threshold specified by the Tailoring Rule.
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\7\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
\8\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April
2, 2010).
\9\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
\10\ ``Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3,
2010).
\11\ ``Limitation of Approval of Prevention of Significant
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources
in State Implementation Plans.'' 75 FR 82536 (December 30, 2010).
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D. What elements are required under Section 110(a)(2)?
The October 2, 2007, EPA guidance for addressing the SIP
infrastructure elements required under sections 110(a)(1) and (2) for
the 1997 ozone and PM 2.5 NAAQS, provides a list of 14
essential components that States must include in their SIPs. These are
listed in Table 1 below.
[[Page 24425]]
Table 1--Section 110(a)(2) Elements Required in SIPs
------------------------------------------------------------------------
Clean Air Act Citation Brief description
------------------------------------------------------------------------
Section 110(a)(2)(A)................... Emission limits and other
control measures.
Section 110(a)(2)(B)................... Ambient air quality monitoring/
data system.
Section 110(a)(2)(C)................... Program for enforcement of
control measures.
Section 110(a)(2)(D)(ii) \12\.......... Interstate and international
transport.
Section 110(a)(2)(E)................... Adequate resources.
Section 110(a)(2)(F)................... Stationary source monitoring
system.
Section 110(a)(2)(G)................... Emergency power.
Section 110(a)(2)(H)................... Future SIP revisions.
Section 110(a)(2)(J) \13\.............. Consultation with government
officials.
Section 110(a)(2)(J)................... Public notification.
Section 110(a)(2)(J)................... Prevention of significant
deterioration (PSD) and visi
bility
protection.
Section 110(a)(2)(K)................... Air quality modeling/data.
Section 110(a)(2)(L)................... Permitting fees.
Section 110(a)(2)(M)................... Consultation/participation by
affected local entities.
------------------------------------------------------------------------
II. What action is EPA proposing?
A. Section 110(a)(1) and (2)
EPA is proposing to approve the New Mexico SIP submittals that
identify where and how the 14 basic infrastructure elements are in the
EPA-approved SIP as specified in section 110(a)(2) of the Act. The New
Mexico submittals do not include revisions to the SIP, but document how
the current New Mexico SIP already includes the required infrastructure
elements. In today's action, we are proposing to find that the
following section 110(a)(2) elements are contained in the current New
Mexico SIP and provide the infrastructure for implementing the 1997
ozone and PM 2.5 standards: Emission limits and other
control measures (section 110(a)(2)(A)); ambient air quality
monitoring/data system (section 110(a)(2)(B)); program for enforcement
of control measures (section 110(a)(2)(C)); international and
interstate pollution abatement (section 110(a)(2)(D)(ii)); adequate
resources (section 110(a)(2)(E)); stationary source monitoring system
(section 110(a)(2)(F)); emergency power (section 110(a)(2)(G)); future
SIP revisions (section 110(a)(2)(H)); consultation with government
officials (section 110(a)(2)(J)); public notification (section
110(a)(2)(J)); PSD and visibility protection (section 110(a)(2)(J));
air quality modeling/data (section 110(a)(2)(K)); permitting fees
(section 110(a)(2)(L)); and consultation/participation by affected
local entities (section 110(a)(2)(M)).
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\12\ Section 110(a)(2)(D)(ii) of the Act requires compliance
with sections 115 and 126 of the Act, relating to international and
interstate pollution abatement, respectively. Under section
126(a)(1), SIPs must require notification to nearby, affected states
of ``major proposed new (or modified) sources'' in either of two
instances: (1) when the source is subject to PSD (section
126(a)(1)(A)); or (2) when the source ``may significantly contribute
to levels of air pollution in excess'' of the NAAQS in air quality
control regions in other states (section 126(a)(1)(B)). Any new
major stationary source or major modification in an attainment or
unclassifiable area is subject to PSD. Therefore, in attainment or
unclassifiable areas, any source that potentially falls under
section 126(a)(1)(B) must also fall under (A). Thus, to the extent
that section 126(a)(1)(B) provides any requirements separate from
those in section 126(a)(1)(A), it does so only for major proposed
new or modified sources in nonattainment areas, that is, for sources
subject to nonattainment NSR. The requirements of section
126(a)(1)(B) should therefore be addressed in states with
nonattainment areas through those states' nonattainment NSR
programs. As explained elsewhere in this proposed rulemaking,
nonattainment NSR programs are not a subject of this action, so EPA
will not address the requirements of section 126(a)(1)(B) in the
infrastructure SIPs.
\13\ Section 110(a)(2)(I) pertains to the nonattainment planning
requirements of part D, Title I of the Act. This section is not
governed by the 3-year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within 3 years after promulgation of a new or
revised NAAQS, but are due at the time the nonattainment area plan
requirements are due pursuant to section 172. Thus this action does
not cover section 110(a)(2)(I).
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B. CFR Codification Technical Correction to 40 CFR 52.1620(e)
EPA is proposing to correct a CFR codification technical error made
in the table titled ``EPA Approved Nonregulatory Provisions and Quasi-
Regulatory Measures in the New Mexico SIP,'' found at 40 CFR
52.1620(e).\14\ EPA approved New Mexico's Air Pollution Episode
Contingency Plan into the SIP on August 21, 1990 (55 FR 34013) under
the SIP codification method in existence at the time. When we changed
our SIP codification method for New Mexico on July 13, 1998 (63 FR
37493), we added the table currently found under 40 CFR 52.1620(e), and
included entries in this table for all EPA approved nonregulatory
provisions in the New Mexico SIP, including those approved prior to
1998. We note that we made an error in not including the already SIP
approved New Mexico Air Pollution Episode Contingency Plan when we
added this table under 40 CFR 52.1620(e). We are proposing to make a
CFR codification technical correction to amend the table titled ``EPA
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the
New Mexico SIP'' to include an entry for the New Mexico Air Pollution
Episode Contingency Plan approved by EPA into the SIP on August 21,
1990 (55 FR 34013, 40 CFR 52.1639(a)).\15\ EPA is proposing to make
this CFR codification technical correction because it clarifies that
EPA has approved the State's air pollution episode provisions into the
New Mexico SIP.
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\14\ 40 CFR 52.1620 provides the Identification of Plan for New
Mexico, which lists the EPA-approved provisions of the SIP for the
State, as provided under section 110 of the Act, 42 U.S.C. 7410, and
40 CFR 51 to meet the NAAQS. New Mexico's EPA approved nonregulatory
provisions are provided under 40 CFR 52.1620(e).
\15\ The New Mexico Air Pollution Episode Contingency Plan is
applicable statewide outside of the boundaries of Bernalillo County
and Indian Lands, and was adopted by New Mexico on July 7, 1988, and
submitted to EPA as a SIP revision on August 19, 1988.
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C. CFR Codification Technical Corrections to 40 CFR 52.1620(c) and 40
CFR 52.1640(c)(66)(i)(B)
EPA is also proposing to correct two CFR codification technical
errors made in the table titled ``EPA Approved New Mexico
Regulations,'' found at 40 CFR 52.1620(c).\16\ On October 20, 1995, New
Mexico adopted a recodification of the State's air quality control
regulations
[[Page 24426]]
(AQCRs).\17\ New Mexico submitted the recodification of, and revisions
to, the SIP on January 8, 1996, and EPA approved these revisions into
the SIP on September 26, 1997 (62 FR 50514). We would like to clarify
that when we approved the recodification of, and revisions to, the New
Mexico SIP in the September 26, 1997 rulemaking, we made a codification
error in 40 CFR 52.1620(c) by incorrectly including entries in the
table titled ``EPA Approved New Mexico Regulations'' for part 70
(Operating Permits) and part 71 (Operating Permit Emission Fees) of
20.2 NMAC, which constitute New Mexico's Title V permitting program and
the associated permitting fees, respectively.\18\ The preamble of the
September 26, 1997 rulemaking contains a table listing the rules
submitted by New Mexico as a recodification, which EPA had reviewed and
approved as a recodification to the New Mexico SIP (62 FR 50514, see
pages 50516-17). This table in the preamble did not contain part 70 or
part 71 of 20.2 NMAC, yet the CFR table found at 40 CFR 52.1620(c) and
the New Mexico Identification of Plan at 40 CFR 52.1640(c)(66)(i)(B)
\19\ erroneously included the two Title V regulations. The preamble of
the September 26, 1997 rulemaking did not act to approve these two
Title V regulations as part of the New Mexico SIP. Further, we have
never taken any rulemaking action to approve parts 70 and 71 into the
New Mexico SIP. Therefore, New Mexico's Title V permitting program has
always been, and continues to be outside the scope of the New Mexico
SIP.\20\ In addition, the table titled ``EPA Approved New Mexico
Regulations,'' currently incorrectly lists the EPA approval date of the
recodification of New Mexico's regulations in the SIP to be November
25, 1997. Although the Federal Register citation (62 FR 50514) listed
under the table is correct, the November 25, 1997 date is incorrect and
should be changed to September 26, 1997. EPA is proposing to amend the
table titled ``EPA Approved New Mexico Regulations,'' found at 40 CFR
52.1620(c), by deleting the entries for parts 70 and 71 of 20.2 NMAC
and by changing the EPA approval date of the 62 FR 50514 rulemaking
from the currently listed date of November 25, 1997 to the correct date
of September 26, 1997. We are also proposing to amend 40 CFR
52.1640(c)(66)(i)(B) such that it reads as follows: ``New Mexico
Administrative Code, Title 20, Chapter 2, Parts 3, 5, 7, 8, 10, 11, 12,
13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 30, 31, 32, 33, 34, 40, 41, 60,
61, 72 (Subparts I, II and III; Subpart V, Sections 501 and 502), 73,
75, 79, and 80; adopted by the New Mexico Environmental Improvement
Board on October 20, 1995, and filed with the State Records and
Archives Center on October 30, 1995.'' EPA is proposing to make the CFR
codification technical corrections to 40 CFR 52.1640(c)(66)(i)(B) and
to the table titled ``EPA Approved New Mexico Regulations,'' found
under 40 CFR 52.1620(c), as indicated above, because it is necessary to
clarify which New Mexico air quality regulations are currently approved
into the New Mexico SIP and the EPA approval date of these regulations
into the SIP.\21\
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\16\ New Mexico's air quality regulations approved by EPA into
the SIP, along with the State's approval/effective date of the
regulations, EPA's approval date of the regulations into the SIP,
and the Federal Register notice citation for approval into the SIP
are provided under 40 CFR 52.1620(c).
\17\ In New Mexico's 1995 adoption of the recodification of the
State's air quality regulations, the AQCRs existing at the time were
renumbered and reformatted into the current NMAC, as was required by
the New Mexico State Records Center.
\18\ After construction, a source must obtain an operating
permit, also called a Title V operating permit, as this requirement
comes from Title V of the Act. Most Title V permits are issued by
approved State and local permitting authorities. These permits are
often called part 70 permits because the regulations that establish
minimum standards for State permit programs are found at 40 CFR part
70.
\19\ 40 CFR 52.1640 identifies the original New Mexico SIP and
all revisions submitted by New Mexico that were federally approved
prior to January 1, 1998.
\20\ New Mexico's Title V permitting program is legally not part
of the SIP, but was approved by EPA on November 26, 1996 (61 FR
60032) as the State's Title V permitting program.
\21\ Any other CFR corrections to the New Mexico SIP that may be
required will be addressed in a separate future action.
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D. Conversion of Our Conditional Approval of New Mexico's PSD Program
to Full Approval and the CFR Codification Technical Corrections to 40
CFR 52.1634(a) and 40 CFR 52.1640(c)(39)
In reviewing the history of New Mexico's PSD program for the
purposes of the infrastructure SIP, we found that the State's PSD
program was conditionally approved into the SIP on February 27, 1987
(52 FR 5964). In the February 27, 1987 rulemaking, New Mexico's PSD
program was conditionally approved by EPA on the basis that (i) the
State would not issue permits to sources that would require review
under EPA's stack height regulations because they would have a stack
height over 65 meters or would use any other dispersion techniques, as
defined at 40 CFR 51.1(hh); and (ii) as quickly as possible, the State
would adopt and submit as a plan revision a regulation that is
equivalent to the regulations in 40 CFR Part 51 promulgated to
implement Section 123 of the Act, regarding stack heights. On May 14,
1985, the Governor of New Mexico submitted a letter in which he
committed the State not to issue PSD permits to sources that would
require review under EPA's stack height regulations because they would
have stack heights over 65 meters or would use any other dispersion
techniques, as defined at 40 CFR 51.1(hh).\22\ On April 26, 1988, New
Mexico submitted as a SIP revision a new regulation on stack height
requirements to satisfy the Federal requirements of 40 CFR Part 51. On
November 2, 1988, EPA approved New Mexico's stack height regulation
into the SIP (53 FR 44191). Thus, condition (i) of our February 27,
1987 conditional approval of New Mexico's PSD program was met when New
Mexico complied with the Governor's May 14, 1985 commitment letter in
the interim, and condition (ii) was met when we approved New Mexico's
stack height regulations in the November 2, 1988 rulemaking. Therefore,
upon our approval of New Mexico's stack height regulations in the
November 2, 1988 rulemaking, New Mexico had fully met all the
conditions of EPA's February 27, 1987 conditional approval of the
State's PSD program. However, due to an administrative oversight, EPA
failed to convert the conditional approval of New Mexico's PSD program
into a full approval at that time. We note that the fact that EPA has
not formally converted the conditional approval to a full approval has
no impact on the State's authority to implement the PSD program.
Therefore, we now propose to convert our February 27, 1987 conditional
approval of the State's PSD program to a full approval based on our
approval of the State's stack height regulations in the November 2,
1988 rulemaking (53 FR 44191).
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\22\ See 40 CFR 52.1640(c)(37)(B).
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In accordance with our proposal to convert our February 27, 1987
conditional approval of New Mexico's PSD program to a full approval, we
intend to make codification technical corrections to 40 CFR 52.1634(a)
and 40 CFR 52.1640(c)(39).\23\ 40 CFR 52.1634(a) currently identifies
New Mexico's PSD program as meeting the requirements of part C of the
Act for prevention of significant deterioration of air quality and as
being SIP approved, but does not explain that we initially
conditionally approved the State's PSD program on February 27, 1987,
and that New Mexico has since then met the conditions of our
[[Page 24427]]
conditional approval. We are proposing to amend the paragraph at 40 CFR
52.1634(a) to read as follows: ``The plan submitted by the Governor of
New Mexico on February 21, 1984 (as adopted by the New Mexico
Environmental Improvement Board (NMEIB) on January 13, 1984), August
19, 1988 (as revised and adopted by the NMEIB on July 8, 1988), and
July 16, 1990 (as revised and adopted by the NMEIB on March 9, 1990),
Air Quality Control Regulation 707--Permits, Prevention of Significant
Deterioration (PSD) and its Supplemental document, is approved as
meeting the requirements of part C, Clean Air Act, for preventing
significant deterioration of air quality. Additionally, on November 2,
1988, EPA approved New Mexico's stack height regulation into the SIP
(53 FR 44191), thereby satisfying the conditions of EPA's conditional
approval of the State's PSD program on February 27, 1987 (52 FR 5964).
Therefore, the conditional approval is converted to a full approval
when we take final action on this CFR correction.'' 40 CFR
52.1640(c)(39) currently identifies New Mexico's stack height
regulation submitted on April 26, 1988 as having been approved into the
SIP, but does not identify that this denotes that New Mexico has fully
satisfied all conditions of our February 27, 1987 conditional approval
of New Mexico's PSD program. We are proposing to amend the paragraph at
40 CFR 52.1640(c)(39) to read as follows: ``On April 26, 1988, the
Governor of New Mexico submitted a revision to the State Implementation
Plan that contained Air Quality Control Regulation No. 710--Stack
Height Requirements, as adopted by the New Mexico Environmental
Improvement Board on March 10, 1988. Regulation No. 710 enables the
State to ensure that the degree of emission limitation required for the
control of any air pollutant under its SIP is not affected by that
portion of any stack height that exceeds GEP or by any other dispersion
technique. With EPA's November 2, 1988, approval of the State's
revision to the State Implementation Plan to include Regulation No. 710
(53 FR 44191), the State has satisfied the conditions of our February
27, 1987 conditional approval of the State's plan for preventing
significant deterioration of air quality (52 FR 5964). When we take
final action on this CFR correction, the conditional approval will be
converted to a full approval.''
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\23\ 40 CFR 52.1634(a) provides for New Mexico's SIP approved
PSD program. As stated elsewhere in this rulemaking, 40 CFR
52.1640(c) provides for all revisions submitted by New Mexico that
were federally approved into the SIP prior to January 1, 1998. 40
CFR 52.1640(c)(39) provides for New Mexico's SIP approved stack
height regulation.
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We are proposing the above CFR codification technical corrections
to the paragraphs at 40 CFR 52.1634(a) and 40 CFR 52.1640(c)(39)
because we are proposing to convert our February 27, 1987 conditional
approval of New Mexico's PSD program to a full approval.
E. SIP Revision to 20.2.3 NMAC
In conjunction with our proposed finding that the New Mexico SIP
meets the section 110(a)(1) and (2) infrastructure SIP elements listed
above, we are also proposing to fully approve a severable portion of a
SIP revision submitted by NMED to EPA on November 2, 2006. This portion
of the submittal contains a revision to 20.2.3 NMAC (Ambient Air
Quality Standards) and is not a requirement under the infrastructure
SIPs, and therefore our proposed approval of this revision is severable
from our proposed approval of New Mexico's infrastructure SIP
submittals. The revision adds a new subpart 9 to 20.2.3 NMAC, including
language to ensure that sources being issued a permit under the State's
minor source permitting program, found at 20.2.72 NMAC (Construction
Permits), are required to continue to address the State's ambient air
quality standards in their application. The revision includes language
in 20.2.3.9 NMAC that removes the state ambient air quality standards
from being an applicable requirement under the State's Title V
permitting program, found at 20.2.70 NMAC (Operating Permits). Because
New Mexico's Title V program is outside the scope of the New Mexico
SIP, this revision does not constitute a relaxation of the current New
Mexico SIP.\24\ As described above in subsection C of this section, we
made a codification error in 40 CFR 52.1620(c) by incorrectly including
entries in the table titled ``EPA Approved New Mexico Regulations'' for
part 70 (Operating Permits) and part 71 (Operating Permit Emission
Fees) of 20.2 NMAC, which are State regulations that have not been
approved into the New Mexico SIP. As the New Mexico Title V permitting
program, codified at 20.2.70 NMAC, has not been approved into the New
Mexico SIP, approval of the November 2, 2006 revision to 20.2.3 NMAC is
appropriate and will not constitute a relaxation of the current New
Mexico SIP. The SIP revision to 20.2.3 NMAC we are proposing to approve
is severable from the portions of the November 2, 2006 SIP submittal on
which we are taking no action in this rulemaking. By severable, we mean
that the portion of the SIP revisions we are proposing to approve can
be implemented independently of the portions on which we are not
acting, without affecting the stringency of the submitted rules. EPA is
not proposing to take action on any other portions of the November 2,
2006 SIP revisions in this proposed rulemaking; EPA intends to act on
the other revisions in a separate rulemaking. EPA proposes to approve
the portion of the November 2, 2006 revision, as indicated above,
because it clarifies the permitting requirements under the New Mexico
SIP.
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\24\ See footnote 20 above.
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III. How has New Mexico addressed the elements of Section 110(a)(2)?
The New Mexico submittals address the elements of Section 110(a)(2)
as described below. We provide a more detailed review and analysis of
the New Mexico infrastructure SIP elements in the Technical Support
Document (TSD), located in the docket for this rulemaking.
Enforceable emission limits and other control measures, pursuant to
section 110(a)(2)(A): Section 110(a)(2)(A) requires that all measures
and other elements in the SIP be enforceable. This provision does not
require the submittal of regulations or emission limits developed
specifically for attaining the 1997 8-hour ozone and PM2.5
standards. Those regulations are due later as part of attainment
demonstrations.
The New Mexico Environmental Improvement Act, found in Chapter 74,
Article 1 of the New Mexico Statutes Annotated 1978 (denoted NMSA 1978
74-1), created the NMED and the New Mexico Environmental Improvement
Board (EIB). The New Mexico Air Quality Control Act codified at NMSA
1978 74-2, delegates authority to the EIB to adopt, promulgate,
publish, amend and repeal regulations consistent with the Air Quality
Control Act to attain and maintain NAAQS and prevent or abate air
pollution. See NMSA 1978 74-2-5(B)(1). The Air Quality Control Act also
designates the NMED as the State's air pollution control agency and the
Environmental Improvement Act provides the NMED with enforcement
authority. The SIP rule at Title 20 of the New Mexico Administrative
Code (denoted as 20 NMAC) describes NMED as the State's air pollution
control agency and its enforcement authority, referencing the NMSA 1978
(44 FR 21019, April 9, 1979; revised 49 FR 44101, November 2, 1984;
recodified approved in 62 FR 50518, September 26, 1997).
The NMED has promulgated rules to limit and control emissions of
PM, sulfur dioxide (SO2), nitrogen oxides (NOX)
and volatile organic compounds
[[Page 24428]]
(VOCs).\25\ These rules include emission limits, control measures,
permits, fees, and compliance schedules and are found in Title 20,
chapter 2 of the NMAC\26\ (denoted 20.2 NMAC): 20.2 NMAC parts 3, 5, 7-
8, 10-22, 30-34, 40-41, 72-75, and 98-99.
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\25\ NOX and VOCs are precursors to ozone. PM can be
emitted directly and secondarily formed; the latter is the result of
NOX and SO2 precursors combining with ammonia
to form ammonium nitrate and ammonium sulfate.
\26\ Title 20 addresses Environmental Protection and chapter 2
addresses Air Quality.
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In this proposed action, EPA is not proposing to approve or
disapprove any existing New Mexico SIP provisions with regard to excess
emissions during startup, shutdown, or malfunction (SSM) of operations
at a facility.\27\ EPA believes that a number of states may have SSM
SIP provisions that are contrary to the Act and existing EPA
guidance,\28\ and the Agency plans to address such state regulations in
the future. In the meantime, EPA encourages any state having a
deficient SSM provision to take steps to correct it as soon as
possible. Similarly, in this proposed action, EPA is not proposing to
approve or disapprove any existing state rules with regard to
director's discretion or variance provisions. EPA believes that a
number of states may have such provisions that are contrary to the Act
and existing EPA guidance (52 FR 45044, November 24, 1987),\29\ and the
Agency plans to take action in the future to address such state
regulations. In the meantime, EPA encourages any state having a
director's discretion or variance provision in its SIP which is
contrary to the Act and EPA guidance to take steps to correct the
deficiency as soon as possible.
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\27\ EPA approved New Mexico's current provisions regarding
excess emissions occurring during startup, shutdown, and malfunction
(SSM) of operations at a facility on September 14, 2009 (74 FR
46910).
\28\ ``State Implementation Plans (SIPs): Policy Regarding
Excess Emissions During Malfunctions, Startup, and Shutdown,''
Memorandum from Steven A. Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and Robert Perciasepe,
Assistant Administrator for Air and Radiation, dated August 11,
1999.
\29\ The section addressing exemptions and variances is found on
p. 45109 of the 1987 rulemaking.
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A detailed list of the applicable 20.2 NMAC parts discussed above
is provided in the TSD. New Mexico's SIP clearly contains enforceable
emission limits and other control measures, which are in the Federally
enforceable SIP. EPA is proposing to find that the New Mexico SIP meets
the requirements of section 110(a)(2)(A) with respect to the 1997 8-
hour ozone and PM2.5 NAAQS.
Ambient air quality monitoring/data analysis system, pursuant to
section 110(a)(2)(B): Section 110(a)(2)(B) requires SIPs to include
provisions for establishment and operation of ambient air quality
monitors, collecting and analyzing ambient air quality data, and making
these data available to EPA upon request. The NMED operates and
maintains a statewide network of air quality monitors; data are
collected, results are quality assured, and the data are submitted to
EPA's Air Quality System\30\ on a regular basis. New Mexico's Statewide
Air Quality Surveillance Network was approved by EPA on August 6, 1981
(46 FR 40005), and consists of stations that measure ambient
concentrations of the six criteria pollutants, including ozone and
PM2.5. The air quality surveillance network undergoes annual
review by EPA. On July 7, 2010, NMED submitted its 2010 Annual Air
Monitoring Network Plan (AAMNP) that included the plans for the 1997
ozone and PM2.5 NAAQS. EPA approved New Mexico's 2010 AAMNP
on January 7, 2011.\31\ The NMED Web site provides the ozone and
PM2.5 monitor locations, and current and historical data
(https://air.nmenv.state.nm.us/).
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\30\ The Air Quality System (AQS) is EPA's repository of ambient
air quality data. AQS stores data from over 10,000 monitors, 5000 of
which are currently active. State, Local and Tribal agencies collect
the data and submit it to AQS on a periodic basis.
\31\ A copy of our approval letter is available in the docket
for this rulemaking.
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In summary, New Mexico meets the requirement to establish, operate,
and maintain an ambient air monitoring network, collect and analyze the
monitoring data, and make the data available to EPA upon request. EPA
is proposing to find that the current New Mexico SIP meets the
requirements of section 110(a)(2)(B) with respect to the 1997 8-hour
ozone and PM2.5 NAAQS.
Program for enforcement of control measures and regulation of the
modification and construction of any stationary source within the areas
covered by the plan as necessary to assure that NAAQS are achieved,
including a permit program, as required by Parts C and D, pursuant to
section 110(a)(2)(C): Regarding a program for enforcement of control
measures, as stated previously, the Air Quality Control Act designates
the NMED as the State's air pollution control agency and the
Environmental Improvement Act provides the NMED with authority to
enforce the state's environmental quality rules. The NMED established
rules governing emissions of the criteria pollutants and their
precursors throughout the State and these rules are in the Federally
enforceable SIP. The rules in 20.2 NMAC parts 3, 5, 7-8, 10-22, 30-34,
40-41, 72-75, and 98-99 include allowable emission rates, compliance,
control plan requirements, actual and allowable emissions, monitoring
and testing requirements, recordkeeping and reporting requirements, and
control schedules. These rules clarify the boundaries beyond which
regulated entities in New Mexico can expect enforcement action.
To meet the requirement for having a program for the regulation of
the modification and construction of any stationary source within the
areas covered by the plan as necessary to assure that national ambient
air quality standards are achieved, including a permit program as
required by Parts C and D, generally, the State is required to have
SIP-approved PSD, Nonattainment, and Minor NSR permitting programs
adequate to implement the 1997 8-hour ozone and PM2.5 NAAQS.
We are not evaluating nonattainment-related provisions, such as the
Nonattainment NSR program required by part D in 110(a)(2)(C) and
measures for attainment required by section 110(a)(2)(I), as part of
the infrastructure SIPs for these two NAAQS because these submittals
are required beyond the date (3 years from NAAQS promulgation) that
section 110 infrastructure SIP submittals are required.
PSD programs apply in areas that are meeting the NAAQS, referred to
as areas in attainment, and in areas for which there is insufficient
information to designate as either attainment or nonattainment,
referred to as unclassifiable areas. As described in the section titled
``What Action is EPA Proposing?,'' New Mexico's PSD program was
conditionally approved into the SIP on February 27, 1987 (52 FR 5964).
Today, we propose to convert the conditional approval to a full
approval on the basis of our November 2, 1988 approval of New Mexico's
April 26, 1988 submittal to include in the SIP a new regulation on
stack height requirements to satisfy the Federal requirements of 40 CFR
Part 51. Subsequent revisions to New Mexico's PSD program were approved
into the SIP on August 21, 1990 (55 FR 34013), May 2, 1991 (56 FR
20137), October 15, 1996 (61 FR 53639), March 10, 2003 (68 FR 11316),
December 24, 2003 (68 FR 74483), September 5, 2007 (72 FR 50879), and
November 26, 2010 (75 FR 72688).
To meet the requirements of 110(a)(2)(C) for the 1997 ozone
standard, EPA believes the State must
[[Page 24429]]
have updated its PSD rules to treat NOX as a precursor for
ozone (70 FR 71612). On November 26, 2010, EPA approved revisions to
New Mexico's PSD SIP for the 1997 8-hour ozone NAAQS to include
NOX as an ozone precursor (75 FR 72688).
To implement section 110(a)(2)(C) for the 1997 PM2.5
standard, EPA believes that States should appropriately implement the
interim policy for preconstruction (PSD) review as interpreted by legal
rulings.\32\ States may follow this approach until May 16, 2011, the
date by which we required states to provide revisions to their PSD
regulations to implement the PM2.5 standard as provided
under 73 FR 28321.\33\ During the transition to SIP-approved PSD
requirements for PM2.5, New Mexico confirmed to EPA by
letter that: (1) it does not use PM10 as a surrogate for
PM2.5 in its permitting programs; (2) it requires that
applicants include PM2.5 modeling and emissions in their PSD
and minor source permit applications; and (3) the record for the NMED's
permitting decision includes an explanation of how PM2.5
emissions have been appropriately analyzed and estimated.\34\ (See also
75 FR 52692, page 52700; 75 FR 72688, page 72694). Furthermore, the
State has recently proposed to revise their rules to address
PM2.5 in their PSD program, and expects to adopt these
revisions in May 2011. The State is planning to submit these revised
PSD rules to EPA as a SIP revision by May 16, 2011. EPA will act on
this submission in a separate rulemaking.
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\32\ ``Interim Implementation of New Source Review for
PM2.5,'' Memorandum from John S. Seitz, Director of
Office of Air Quality Planning and Standards, dated October 23,
1997.
\33\ The Federal Register notice 73 FR 28321 was published May
16, 2008.
\34\ July 23, 2010, letter from Mary Uhl, Bureau Chief, Air
Quality Bureau, New Mexico Environment Department, to Thomas Diggs,
Associate Director for Air Programs, EPA Region 6. This letter is in
the docket for this rulemaking.
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New Mexico has the authority to issue permits under the SIP-
approved PSD program to sources of GHG emissions (75 FR 82536, page
82536, December 30, 2010).\35\ The Tailoring Rule established
thresholds that phase in the applicability of PSD requirements to GHG
sources, starting with the largest GHG emitters, and were designed to
relieve the overwhelming administrative burdens and costs associated
with the dramatic increase in permitting burden that would have
resulted from applying PSD requirements to GHG emission increases at or
above only the mass-based statutory thresholds of 100/250 tpy generally
applicable to all PSD-regulated pollutants starting on January 2, 2011.
However, EPA recognized that even after it finalized the Tailoring
Rule, many SIPs with approved PSD programs would, until they were
revised, continue to apply PSD at the statutory thresholds, even though
the states would not have sufficient resources to implement the PSD
program at those levels. EPA consequently implemented its ``PSD SIP
Narrowing Rule'' and narrowed its approval of those provisions of
previously approved SIPs of 24 states, including New Mexico, that apply
PSD to GHG emission increases from sources emitting GHGs below the
Tailoring Rule thresholds (75 FR 82536, December 30, 2010). Through the
PSD SIP Narrowing Rule, EPA withdrew its previous approvals of those
programs to the extent the SIPs apply PSD to increases in GHG emissions
from GHG-emitting sources below the Tailoring Rule thresholds. The
portions of the PSD programs regulating GHGs from GHG-emitting sources
with emission increases at or above the Tailoring Rule thresholds
remained approved. The effect of EPA narrowing its approval in this
manner is that the provisions of previously approved SIPs that apply
PSD to GHG emissions increases from sources emitting GHGs below the
Tailoring Rule thresholds have the status of having been submitted by
the state but not yet acted upon by EPA (75 FR 82536, December 30,
2010).
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\35\ On June 24, 2010, the State submitted a letter to EPA
stating that current New Mexico rules require regulating GHGs at the
existing 100/250 tpy threshold, rather than at the higher thresholds
set in the Tailoring Rule because the State does not have the
authority to apply the meaning of the term ``subject to regulation''
established in the Tailoring Rule. New Mexico also submitted a
letter on September 14, 2010, in response to the proposed GHG SIP
Call again confirming that EPA correctly classified New Mexico as a
State with authority to apply PSD requirements to GHGs. The
September 14, 2010, letter also identifies that NMED is pursuing
rulemaking activity to define the terms ``greenhouse gas'' and
``subject to regulation.'' These two letters are in the docket for
this rulemaking. As explained elsewhere in this rulemaking, on
November 10, 2010, New Mexico adopted revisions to the State's PSD
rules to implement the GHG thresholds established in EPA's GHG
Tailoring Rule and submitted the corresponding SIP revision to EPA
on December 1, 2010. On April 14, 2011, EPA proposed approval of New
Mexico's GHG rules submitted on December 1, 2010 (76 FR 20907). EPA
intends to take final action on the December 1, 201
