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[Federal Register Volume 77, Number 198 (Friday, October 12, 2012)]
[Proposed Rules]
[Pages 62191-62200]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25158]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2009-0710; FRL-9740-4]

Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the submittal from the State of 
New Mexico pursuant to the Clean Air Act (CAA or Act) that addresses 
the infrastructure elements specified in the CAA necessary to 
implement, maintain, and enforce the 2006 fine particulate matter 
(PM2.5) national ambient air quality standard (NAAQS or 
standard). We are proposing to find that the current New Mexico State 
Implementation Plan (SIP) meets the infrastructure elements for the 
2006 PM2.5 NAAQS. We are also proposing to find that the 
current New Mexico SIP meets the CAA requirement which addresses the 
requirement that emissions from sources in the area do not interfere 
with prevention of significant deterioration (PSD) measures required in 
the SIP of any other state, with regard to the 2006 PM2.5 
NAAQS.

DATES: Comments must be received on or before November 13, 2012.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2009-0710, by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Email: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please 
also send a copy by email to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
     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-
2009-0710. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Planning Section 
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an 
appointment. If possible, please make the appointment at least two 
working days in advance of your visit. There will be a 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, 1301 Siler Road, Building B, 
Santa Fe, New Mexico 87507, telephone 505-476-4300.

FOR FURTHER INFORMATION CONTACT: Mr. John Walser, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7128; fax number 
214-665-6762; email address walser.john@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means EPA.

Table of Contents

I. Background
    A. What is the background for this rulemaking?
    B. What elements are required under Section 110(a)(2)?
II. The State's Submittal
III. EPA's Evaluation
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background

A. What is the background for this rulemaking?

    On October 17, 2006, we published revised standards for PM (71 FR 
61144). For PM2.5, the annual standard of 15 [mu]g/m\3\ was 
retained, and the 24-hour standard was revised to 35 [mu]g/m\3\. For 
PM10 the annual standard was revoked, and the 24-hour 
standard (150 [mu]g/m\3\) was retained.

[[Page 62192]]

    Under sections 110(a)(1) and (2) of the Act, states are required to 
submit SIPs \1\ 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 B of section I of this proposed rulemaking. Thus 
states were required to submit such SIPs for the 2006 PM2.5 
NAAQS to EPA no later than September 21, 2009.
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    \1\ State Implementation Plans only apply on State lands and do 
not apply in Indian Country.
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    On September 25, 2009, we issued ``Guidance on SIP Elements 
Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine 
Particle (PM2.5) National Ambient Air Quality Standards 
(NAAQS),'' Memorandum also from William T. Harnett, Director, AQPD, 
OAQPS. Each of these guidance memos addresses the SIP elements found in 
110(a)(2). The guidance states that, to the extent that existing SIPs 
already meet the requirements, states need only certify that fact to 
us.
    On June 12, 2009, the Governor of New Mexico submitted a letter 
certifying that NMED has evaluated the New Mexico SIP and found that 
the SIP does satisfy all the requirements of section 110(a)(1) and (2) 
for the 2006 PM2.5 NAAQS. The June 12, 2009 submittal 
included a table with an explanation of how the current New Mexico SIP 
meets the requirements of section 110(a)(2) for the 2006 
PM2.5 NAAQS. On July 15, 2011, we found that New Mexico's 
current SIP met all the requirements of section 110(a)(2) for the 1997 
8-hour ozone and 1997 PM2.5 NAAQS (see 76 FR 41698). For 
detailed information concerning the background for our previous 
approval, please see Docket I.D. No. EPA-R06-OAR-2009-0647 for that 
rulemaking.
    On July 6, 2011, WildEarth Guardians and Sierra Club filed an 
amended complaint related to EPA's failure to take action on the SIP 
submittal related to the ``infrastructure'' requirements for the 2006 
24-hour PM2.5 NAAQS. On October 20, 2011, EPA entered into a 
consent decree with WildEarth Guardians and Sierra Club which required 
EPA, among other things, to complete a Federal Register notice of the 
Agency's proposed action either approving, disapproving, or approving 
in part and disapproving in part New Mexico's 2006 24-hour 
PM2.5 NAAQS Infrastructure SIP submittal addressing the 
applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), and 
section 110(a)(2)(D)(i) interstate transport requirements, by September 
30, 2012.
    In today's action, we are proposing to approve New Mexico's 2006 
24-hour PM2.5 NAAQS Infrastructure SIP submittal addressing 
the applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), and 
section 110(a)(2)(D)(i) interstate transport requirements. This action 
is not approving any specific rule, but rather proposing that New 
Mexico's already approved SIP, meets certain CAA requirements.
    Additional information: This rulemaking will not cover four 
substantive issues that are not integral to acting on a state's 
infrastructure SIP submission: (i) Existing provisions related to 
excess emissions during periods of start-up, shutdown, or malfunction 
at sources, that may be contrary to the CAA and EPA's policies 
addressing such excess emissions (``SSM''); (ii) existing provisions 
related to ``director's variance'' or ``director's discretion'' that 
purport to permit revisions to SIP approved emissions limits with 
limited public process or without requiring further approval by EPA, 
that may be contrary to the CAA (``director's discretion''); (iii) 
existing provisions for minor source NSR programs that may be 
inconsistent with the requirements of the CAA and EPA's regulations 
that pertain to such programs (``minor source NSR''); and, (iv) 
existing provisions for PSD programs that may be inconsistent with 
current requirements of EPA's ``Final NSR Improvement Rule'' (67 FR 
80186, December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) 
(``NSR Reform''). Instead, EPA has indicated that it has other 
authority to address any such existing SIP defects in other 
rulemakings, as appropriate. A detailed rationale for why these four 
substantive issues are not part of the scope of infrastructure SIP 
rulemakings can be found in EPA's July 13, 2011, final rule entitled, 
``Infrastructure SIP Requirements for the 1997 8-hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' in the 
section entitled, ``What is the scope of this final rulemaking?'' (see 
76 FR 41076).

B. What elements are required under section 110(a)(2)?

    Section 110(a) of the Clean Air Act (Act) requires that each state 
adopt and submit to EPA, within 3 years (or such shorter time period as 
the Administrator may prescribe) after the promulgation of a primary or 
secondary NAAQS or any revision thereof, a SIP that provides for the 
implementation, maintenance, and enforcement of such NAAQS. EPA refers 
to these specific submissions as ``infrastructure'' SIPs because they 
are intended to address basic structural SIP requirements for new or 
revised NAAQS.
    Pursuant to the September 25, 2009, EPA guidance for addressing the 
SIP infrastructure elements required under sections 110(a)(1) and (2) 
for the 2006 PM2.5 NAAQS, there are 14 essential structural 
elements that that must be included in the SIP. These are listed in 
Table 1 below.
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    \2\ 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.
    \3\ 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).

[[Page 62193]]

          Table 1--Section 110(a)(2) Elements Required in SIPs
------------------------------------------------------------------------
      Clean Air Act citation                  Brief description
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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) \2\......  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) \3\..........  Consultation with government
                                     officials.
Section 110(a)(2)(J)..............  Public notification.
Section 110(a)(2)(J)..............  Prevention of significant
                                     deterioration (PSD) and visibility
                                     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.
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    Two elements identified in section 110(a)(2) are not governed by 
the three-year submission deadline of section 110(a)(1) and are 
therefore not addressed in this action. These elements relate to part D 
of title I of the CAA, and submissions to satisfy them are not due 
within three years after promulgation of a new or revised NAAQS, but 
rather are due at the same time nonattainment area plan requirements 
are due under section 172. The two elements are: (i) Section 
110(a)(2)(C) to the extent it refers to permit programs required under 
part D (nonattainment New Source Review (NSR)), and (ii) section 
110(a)(2)(I), pertaining to the nonattainment planning requirements of 
part D. As a result, this action does not address infrastructure 
elements related to the nonattainment NSR portion of section 
110(a)(2)(C) or related to 110(a)(2)(I).

II. The State's Submittal

    New Mexico certified that the New Mexico SIP contains provisions 
that ensure the 2006 PM2.5 NAAQS are implemented, 
maintained, and enforced in New Mexico. On June 12, 2009, the Governor 
of New Mexico submitted to EPA the Clean Air Act Section 110(a)(1) and 
(2) requirements in the current New Mexico SIP that address the 
infrastructure elements specified in the CAA section 110(a)(2), 
necessary to implement, maintain, and enforce the 2006 PM2.5 
NAAQS. The June 12, 2009 submittal included a cover letter from the 
Governor of New Mexico to the EPA Region 6 Regional Administrator, an 
executive summary discussion, and a SIP matrix listing New Mexico's 
compliance with state regulations and each section 110(a)(2) 
infrastructure element for PM2.5.
    We are proposing to approve the June 12, 2009 submittal since it 
addresses the infrastructure SIP requirements for the 2006 
PM2.5 NAAQS. A copy of the submittal can be found in the 
electronic docket for this action (Docket ID No. EPA-R06-OAR-2009-
0710).

III. EPA's Evaluation

    The New Mexico submittal addresses the elements of Section 
110(a)(2) as described below. We provide additional background 
information and a more detailed review and analysis of the New Mexico 
infrastructure SIP elements in the Technical Support Document (TSD), 
located in the electronic docket for this proposed 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 2006 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 New Mexico Environment Department (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; recodification approved in 62 FR 50518, 
September 26, 1997).
    The NMED has promulgated rules to limit and control emissions of 
fine particulate matter (PM2.5), sulfur dioxide 
(SO2), nitrogen oxides (NOX) and volatile organic 
compounds (VOCs).\4\ These rules include emission limits, control 
measures, permits, fees, and compliance schedules and are found in 
Title 20, chapter 2 of the NMAC \5\ (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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    \4\ 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.
    \5\ 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.\6\ EPA believes that a number of states may have SSM SIP 
provisions that are contrary to the Act and existing EPA guidance,\7\ 
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

[[Page 62194]]

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),\8\ 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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    \6\ 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).
    \7\ ``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.
    \8\ 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 2006 
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 \9\ 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 
PM2.5. The air quality surveillance network undergoes annual 
review by EPA. On July 7, 2011, NMED submitted its 2011 Annual Air 
Monitoring Network Plan (AAMNP) that included the plans for the 2006 
PM2.5 NAAQS. EPA approved New Mexico's 2011 AAMNP on January 
13, 2012.\10\ The NMED Web site provides the PM2.5 monitor 
locations, and current and historical data (http://air.nmenv.state.nm.us/).
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    \9\ 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.
    \10\ 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 2006 
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 of the CAA, generally, the State is required 
to have SIP-approved PSD, Nonattainment, and Minor NSR permitting 
programs adequate to implement the 2006 PM2.5 NAAQS. We are 
not evaluating nonattainment-related provisions, such as the 
Nonattainment NSR (NNSR) 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 this 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. New Mexico's PSD program was 
conditionally approved into the SIP on February 27, 1987 (52 FR 5964) 
and fully approved on August 15, 2011 (76 FR 41698). In addition, 
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), November 26, 2010 (75 FR 
72688) and July 20, 2011 (76 FR 43149). Additionally, on June 11, 2009 
and May 23, 2011, New Mexico submitted to EPA SIP revisions that revise 
the state's PSD and NNSR permitting regulations to address the 
permitting requirements associated with the NAAQS for 8-hour ozone and 
PM2.5, respectively. EPA approved the portions of the June 
11, 2009 submittal associated with implementing NOX as a 
precursor (75 FR 72688) as necessary to implement the 1997 ozone 
standard. EPA has proposed approval of the May 23, 2011 revision in a 
Federal Register notice signed on September 28, 2012, as these elements 
are necessary for implementation of the PM2.5 standard. 
Specific details regarding our proposed approval of these submittals is 
available in a separate rulemaking and can be found in the Docket ID 
EPA-R06-OAR-2011-0033.
    PM2.5 PSD Permitting: To implement the PSD permitting component of 
section 110(a)(2)(C) for the 2006 PM2.5 NAAQS, states were 
required to submit the necessary SIP revisions to EPA by May 16, 2011 
and July 20, 2012 pursuant to EPA's NSR PM2.5 Rule finalized 
May 16, 2008 (73 FR 28321) and EPA's PM2.5 Increment--
Significant Impact Levels (SILs)--Significant Monitoring Concentrations 
(SMC) Rule (75 FR 64864) finalized October 20, 2010, respectively. On 
May 23, 2011, the Governor submitted necessary revisions to the New 
Mexico SIP to amend the PSD program to meet the 2006 PM2.5 
NAAQS implementation requirements. To address the requirements of EPA's 
May 16, 2008 NSR PM2.5 Rule, New Mexico adopted rule 
revisions to establish (1) The requirement for NSR permits to address 
directly emitted PM2.5 and precursor pollutants; (2) 
significant emission rates for direct PM2.5 and precursor 
pollutants (SO2 and NOX) and (3) the requirement 
that condensable PM be addressed in enforceable PM, PM10 and 
PM2.5 emission limits included in PSD permits. To address 
the requirements of EPA's October 20, 2010 PM2.5 PSD 
Increment--SILs--SMC Rule, New

[[Page 62195]]

Mexico updated its PSD rules to establish the allowable 
PM2.5 increments,\11\ and the optional screening tools 
called significant impact levels (SILs), and significant monitoring 
concentrations (SMCs).
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    \11\ Under section 165(a)(3) of the Act, a PSD permit applicant 
must demonstrate that emissions from the proposed construction and 
operation of a facility ``will not cause, or contribute to, air 
pollution in excess of any (A) maximum allowable increase or maximum 
allowable concentration for any pollutant * * *.'' The ``maximum 
allowable increase'' of an air pollutant that is allowed to occur 
above the applicable baseline concentration for that pollutant is 
known as the PSD increment. New Mexico revised their PSD program 
(20.2.74 NMAC) to include the allowable PSD increments. For example, 
for Class II areas, the allowable PM2.5 PSD increment is 
4 [mu]g/m\3\ annual arithmetic mean, and 9 [mu]g/m\3\ 24-hour 
maximum, as outlined in Table 4 of 20.2.74.504 NMAC.
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    In a separate rulemaking, EPA proposes to approve the May 23, 2011 
SIP revisions to New Mexico's PSD permitting regulations that implement 
the provisions for PM2.5 permitting because EPA found those 
rule revisions adequate and necessary to implement the 2006 
PM2.5 NAAQS. We have proposed the New Mexico PSD program 
satisfies both the May 16, 2008 (73 FR 28321) and October 20, 2010 
PM2.5 PSD rulemakings (75 FR 64864, effective December 20, 
2010) and a complete analysis is provided in the TSD for the proposed 
action signed on September 28, 2012.
    GHG PSD Permitting: New Mexico has the authority to issue permits 
under the SIP-approved PSD program to sources of GHG emissions (75 FR 
82536, December 30, 2010).\12\ 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).
---------------------------------------------------------------------------

    \12\ 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 
approved the December 1, 2010 submittal on August 19, 2011 (76 FR 
43149).
---------------------------------------------------------------------------

    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). On 
August 19, 2011, EPA approved New Mexico's GHG rules submitted on 
December 1, 2010 (see 76 FR 43149 dated July 20, 2011).
    Minor Source Permitting: 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).\13\ In this action, EPA is proposing to approve New 
Mexico's infrastructure SIP for the 2006 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 stationary source as necessary to assure that the NAAQS are 
achieved.
---------------------------------------------------------------------------

    \13\ 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).
---------------------------------------------------------------------------

    It is important to stress that 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.
    Based on the above, we are proposing to find that the current New 
Mexico SIP meets the requirements of section 110(a)(2)(C) with respect 
to the 2006 PM2.5 NAAQS.
    Interstate transport, pursuant to section 110(a)(2)(D): Section 
110(a)(2)(D) has two components, 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). 
Section 110(a)(2)(D)(i) requires SIPs to include provisions prohibiting 
any source or other type of emissions activity in one state from 
contributing significantly to nonattainment, interfering with 
maintenance of the NAAQS in another state, or from interfering with 
measures required to prevent significant deterioration of air quality 
or to protect visibility in another state. Section 110(a)(2)(D)(ii) 
requires

[[Page 62196]]

SIPs to include provisions insuring compliance with sections 115 and 
126 of the Act, relating to interstate and international pollution 
abatement.
    PSD and interstate transport, pursuant to section 110(a)(2)(D)(i): 
One of the four elements (or prongs) in section 110(a)(2)(D)(i) 
requires a SIP to contain adequate provisions prohibiting emissions 
that interfere with any other state's required measures to prevent 
significant deterioration of its air quality. This is the only element 
of 110(a)(2)(D)(i) on which EPA is proposing action in this rulemaking. 
EPA's 2009 Guidance made recommendations for SIP submissions to meet 
this requirement with respect to the 2006 PM2.5 NAAQS.
    The 2009 Guidance states that the PSD permitting program is the 
primary measure that each state must include to prevent interference 
with any other state's required measures to prevent significant 
deterioration of its air quality in accordance with section 
110(a)(2)(D)(i)(II).
    As discussed previously in this rulemaking with regards to section 
110(a)(2)(C) and in the TSD, the New Mexico PSD program has been 
approved into the SIP. New Mexico has provided necessary revisions to 
its PSD program to implement the PM2.5 standards and EPA has 
proposed approval of these revisions. Therefore, EPA is proposing that 
the New Mexico SIP meets the basic requirements for implementing the 
2006 PM2.5 NAAQS. We are proposing to find the SIP has 
adequately addressed section 110(a)(2)(D)(i)(II) of the CAA, for the 
element that requires that the SIP prohibit air pollutant emissions 
from sources within a state from interfering with measures required to 
prevent significant deterioration of air quality in any other state.
    The remaining three elements of section 110(a)(2)(D)(i): (1) Do not 
significantly contribute to nonattainment of the relevant NAAQS in any 
other state for the 2006 PM2.5 NAAQS; (2) interference with 
the maintenance of the NAAQS in any other state; (3) interference with 
measures required to protect visibility in any other state will be 
evaluated and addressed in future rulemakings.
    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 2006 
PM2.5 NAAQS.
    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 2006 
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 non-Title 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 out its SIP obligations with respect to the 2006 
PM2.5 NAAQS.
    EPA is proposing to find that the New Mexico SIP meets the 
requirements of section 110(a)(2)(E) with respect to the 2006 
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).
    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 (http://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

[[Page 62197]]

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 
http://www.epa.gov/ttn/chief/eiinformation.html. The NMED is current 
with their submittals to the NEI database; the 2010 data for larger 
sources was submitted to EPA in 2011. The State's emissions data are 
also available on EPA's AirData Web site (http://www.epa.gov/air/data/index.html).\14\
---------------------------------------------------------------------------

    \14\ 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.
---------------------------------------------------------------------------

    EPA is proposing to find that the New Mexico SIP meets the 
requirements of section 110(a)(2)(F) with respect to the 2006 
PM2.5 NAAQS.
    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 2009 Infrastructure SIP Guidance for PM2.5 
recommends that a state with at least one monitored 24-hour 
PM2.5 value exceeding 140.4 [micro]g/m\3\ since 2006 
establish an emergency episode plan and contingency measures to be 
implemented should such level be exceeded again. The 2006-2011 ambient 
air quality monitoring data \15\ for New Mexico do not exceed 140.4 
[micro]g/m\3\. The PM2.5 levels have consistently remained 
below this level (140.4 [micro]g/m\3\), 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 2006 PM2.5 
standard. Additional detail is provided in the TSD.
---------------------------------------------------------------------------

    \15\ The ozone and PM data are available through AQS. The AQS 
data for PM are provided in the docket for this rulemaking.
---------------------------------------------------------------------------

    EPA is proposing to find that the New Mexico SIP meets the 
requirements of section 110(a)(2)(G) with respect to the 2006 
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 2006 
PM2.5 NAAQS.
    Consultation with government officials, pursuant to section 
110(a)(2)(J): \16\ 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 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.\17\ 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.\18\ 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

[[Page 62198]]

transportation-related SIPs.\19\ These rules are in the Federally-
approved SIP.
---------------------------------------------------------------------------

    \16\ Section 110(a)(2)(J) is divided into three segments: 
Consultation with government officials; public notification; and PSD 
and visibility protection.
    \17\ 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).
    \18\ See 71 FR 4490, January 27, 2006.
    \19\ See 65 FR 14877.
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    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 2006 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 quality data for 
each of the monitoring stations in New Mexico.\20\ The Web site also 
provides information on the health effects of ozone, particulate 
matter, and other criteria pollutants.
---------------------------------------------------------------------------

    \20\ Please see http://air.nmenv.state.nm.us/.
---------------------------------------------------------------------------

    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 2006 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 converted our conditional 
approval into a full approval effective August 15, 2011 (76 FR 41698). 
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). Furthermore, the State revised their rules to address 
PM2.5 in their PSD program, and submitted those SIP 
revisions on May 23, 2011 to address the permitting requirements for 
direct PM2.5 emissions and its precursors as promulgated by 
EPA on May 16, 2008 and adopting the PM2.5 increment, 
significant impact levels (SILs), and significant monitoring 
concentrations (SMCs) as promulgated by EPA on October 20, 2010 (75 FR 
64864). The State's minor source permitting requirements were approved 
at 38 FR 12702.
    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),\21\ 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).\22\ On January 13, 2009, New Mexico submitted a letter to 
EPA, clarifying that they intended to submit a Regional Haze (RH) SIP 
revision in 2009 to address the requirements of 40 CFR 51.309(d)(4) and 
40 CFR 51.309(g).\23\
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    \21\ 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.
    \22\ New Mexico has the option to submit a Regional Haze SIP 
under either section 51.308 or section 51.309.
    \23\ 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.
---------------------------------------------------------------------------

    On September 17, 2007, New Mexico submitted a SIP revision 
addressing the ``good neighbor'' requirement of section 110(a)(2)(D)(i) 
of the CAA for the 1997 8-hour ozone and 1997 PM2.5 NAAQS. 
On August 22, 2011, EPA disapproved the New Mexico Interstate Transport 
SIP provisions that address the requirement of 110(a)(2)(D)(II) that 
emissions from New Mexico sources do not interfere with measures 
required in the SIP of any other state under part C of the CAA to 
protect visibility. EPA found that New Mexico sources, except the San 
Juan Generating Station, are sufficiently controlled to eliminate 
interference with the visibility programs of other states. Therefore, 
EPA finalized a Federal Implementation Plan (FIP) for New Mexico to 
address emissions from one source: The San Juan Generating Station 
(SJGS) coal-fired power plant (76 FR 52388, effective September 21, 
2011). The FIP addresses the RH Best Available Retrofit Technology 
(BART) requirements for NOX for the SJGS. In that action, 
EPA found that the other New Mexico pollution sources are adequately 
controlled to eliminate interference with the clean air visibility 
programs of other states.
    On July 5, 2011, New Mexico submitted a revised Regional Haze (RH) 
SIP to the EPA. EPA has reviewed the submittal and proposed approval of 
the submittal, except for the submitted nitrogen oxides NOX 
Best Available Retrofit Technology (BART) determination for the San 
Juan Generating Station, on June 15, 2012 (77 FR 36044).
    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 2006 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 has the ability to perform modeling for the primary and 
secondary PM2.5 standards on a case-by-case permit basis 
consistent with their SIP-approved PSD rules and consistent with EPA 
guidance and 40 CFR part 51, Appendix W, Guideline on Air Quality 
Models.
    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 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

[[Page 62199]]

section 110(a)(2)(K) with respect to the 2006 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 proposing to find that the New Mexico SIP meets the 
requirements of section 110(a)(2)(L) with respect to the 2006 
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 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.\24\
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    \24\ See 65 FR 14877.
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    EPA is proposing to find that the New Mexico SIP meets the 
requirements of section 110(a)(2)(M) with respect to the 2006 
PM2.5 NAAQS.

IV. Proposed Action

    We are proposing to approve the submittal 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 2006 
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).
    We are also proposing to approve the portion of the New Mexico 
submittal that addresses the requirement of section 
(110)(a)(2)(D)(i)(II) of the Act that emissions from sources in New 
Mexico do not interfere with measures required in the SIP of any other 
state under part C of the Act regarding PSD for the 2006 
PM2.5 NAAQS.
    EPA is proposing these actions in accordance with section 110 and 
part C of the Act and EPA's regulations and consistent with EPA 
guidance. EPA's proposed approval does not extend to areas within 
Indian country as defined in 18 U.S.C. 1151. EPA, or eligible Indian 
tribes, as appropriate, will retain jurisdiction and responsibilities 
under the Clean Air Act, Section 110 within Indian country.

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

[[Page 62200]]

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.

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

    Dated: September 28, 2012.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2012-25158 Filed 10-11-12; 8:45 am]
BILLING CODE 6560-50-P
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