Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Proposed Rules 62191 

4a, 80b–6(4), 80b–6a, and 80b–11, unless 

otherwise noted. 

* * * * * 

§ 275.206(3)–3T [Amended] 

2. In § 275.206(3)–3T, amend 

paragraph (d) by removing the words 

‘‘December 31, 2012’’ and adding in 

their place ‘‘December 31, 2014’’. 

By the Commission. 

Dated: October 9, 2012. 

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. 2012–25116 Filed 10–11–12; 8:45 am] 

BILLING CODE 8011–01–P 

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. 

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 mg/ 

m3 was retained, and the 24-hour 

standard was revised to 35 mg/m3. For 

PM10 the annual standard was revoked, 

and the 24-hour standard (150 mg/m3) 

was retained. 


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62192 Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Proposed Rules 

1State Implementation Plans only apply on State 

lands and do not apply in Indian Country. 

2Section 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. 

3Section 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). 

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. 

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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4NOX 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. 

5Title 20 addresses Environmental Protection and 

chapter 2 addresses Air Quality. 

6EPA 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. 

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) 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. 

Two elements identified in section 

110(a)(2) are not governed by the threeyear 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 NMAC5

(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.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 


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62194 Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Proposed Rules 

8The section addressing exemptions and 

variances is found on p. 45109 of the 1987 

rulemaking. 9The 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. 

10A copy of our approval letter is available in the 

docket for this rulemaking. 

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. 

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/). 

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 nonattainmentrelated 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 


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11Under 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 mg/m3 annual arithmetic mean, and 

9 mg/m3 24-hour maximum, as outlined in Table 4 

of 20.2.74.504 NMAC. 

12On 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). 

13Revisions to New Mexico’s minor source 

permitting program were most recently approved by 

EPA into the SIP on September 26, 1997 (62 FR 

50514). 

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). 

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 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 

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. 

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 


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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 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 

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 


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14The 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. 

15The ozone and PM data are available through 

AQS. The AQS data for PM are provided in the 

docket for this rulemaking. 

16Section 110(a)(2)(J) is divided into three 

segments: Consultation with government officials; 

public notification; and PSD and visibility 

protection. 

17Areas 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). 

18See 71 FR 4490, January 27, 2006. 

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

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 mg/m3 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 mg/m3. The 

PM2.5 levels have consistently remained 

below this level (140.4 mg/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 2006 PM2.5 standard. 

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 

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 


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19See 65 FR 14877. 

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

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. 22New 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. 

transportation-related SIPs.19 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 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. 

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

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 


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24See 65 FR 14877. 

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

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 


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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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2010–0019(b); FRL–9741– 

1] 

Approval and Promulgation of 

Implementation Plans; North Carolina 

Portion of the Charlotte-Gastonia-Rock 

Hill, North Carolina-South Carolina 

1997 8-Hour Ozone Nonattainment 

Area; Reasonable Further Progress 

Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

state implementation plan revisions, 

submitted by the North Carolina 

Department of Environment and Natural 

Resources, on June 15, 2007, and 

November 30, 2009, to address the 

reasonable further progress (RFP) plan 

requirements for the 1997 8-hour ozone 

national ambient air quality standards 

(NAAQS) for the North Carolina portion 

of the bi-state Charlotte-Gastonia-Rock 

Hill 1997 8-hour ozone nonattainment 

area. The Charlotte-Gastonia-Rock Hill, 

North Carolina-South Carolina 1997 8- 

hour ozone nonattainment area 

(hereafter referred to as the ‘‘bi-state 

Charlotte Area’’) is comprised of 

Cabarrus, Gaston, Lincoln, 

Mecklenburg, Rowan, Union and a 

portion of Iredell (Davidson and Coddle 

Creek Townships) Counties in North 

Carolina; and a portion of York County 

in South Carolina. EPA is also providing 

the status of its adequacy determination 

for the motor vehicle emissions budgets 

(MVEB) for volatile organic compounds 

and nitrogen oxides that were included 

in North Carolina’s RFP plan. Further, 

EPA is proposing to approve these 

MVEB. This proposed action is being 

taken pursuant to section 110 of the 

Clean Air Act. EPA will take action on 

South Carolina’s RFP plan for its 

portion of the bi-state Charlotte Area, in 

a separate action. In the Final Rules 

Section of this Federal Register, EPA is 

approving the State’s implementation 

plan revisions as a direct final rule 

without prior proposal because the 

Agency views these submittals as 

noncontroversial and anticipates no 

adverse comments. 

DATES: Written comments must be 

received on or before November 13, 

2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2010–0019 by one of the following 

methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: R4–RDS@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: ‘‘EPA–R04–OAR–2010– 

0019,’’ Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Lynorae 

Benjamin, Chief, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding federal 

holidays. 

Please see the direct final rule which is 

located in the Rules section of this 

Federal Register for detailed 

instructions on how to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: Sara 

Waterson, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, U.S. Environmental Protection 

Agency, Region 4, 61 Forsyth Street 

SW., Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9061. 

Ms. Waterson can be reached via 

electronic mail at 

waterson.sara@epa.gov. 

SUPPLEMENTARY INFORMATION: On March 

12, 2008, EPA issued a revised ozone 

NAAQS. See 73 FR 16436. The current 

action, however, is being taken to 

address requirements under the 1997 8- 

hour ozone NAAQS. Requirements for 

the North Carolina portion of the bistate Charlotte Area under the 2008 

ozone NAAQS will be addressed in the 

future. For additional information see 

the direct final rule which is published 

in the Rules Section of this Federal 

Register. A detailed rationale for the 

approval of the RFP plan requirements 

for the 1997 8-hour ozone NAAQS is set 

forth in the direct final rule. If no 

adverse comments are received in 

response to this rule, no further activity 

is contemplated. If EPA receives adverse 

comments, the direct final rule will be 

withdrawn and all public comments 

received will be addressed in a 

subsequent final rule based on this 

proposed rule. EPA will not institute a 

second comment period on this 

document. Any parties interested in 

commenting on the matters being 

proposed for approval into the North 

Carolina SIP today should do so at this 

time. 

Dated: October 2, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2012–25188 Filed 10–11–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2011–0033; FRL–9740–5] 

Approval and Promulgation of 

Implementation Plans; New Mexico; 

Revisions to the New Source Review 

(NSR) State Implementation Plan (SIP); 

Prevention of Significant Deterioration 

(PSD) and Nonattainment New Source 

Review (NNSR) Permitting 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

revisions to the New Mexico SIP to 

update the New Mexico NNSR and PSD 

SIP permitting programs consistent with 

federal requirements. EPA proposes to 

find that these revisions to the New 

Mexico SIP meet the Federal Clean Air 

Act (the Act or CAA) and EPA 

regulations, and are consistent with EPA 

policies. New Mexico submitted the 

PSD and NNSR SIP permitting revisions 

in two SIP submittals on June 11, 2009, 

and May 23, 2011. EPA is proposing this 

action under section 110 and parts C 

and D of the Act. 

DATES: Comments must be received on 

or before November 13, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–R06– 


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