73512 Federal Register / Vol. 79, No. 238 / Thursday, December 11, 2014 / Proposed Rules 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: November 28, 2014. 

William C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2014–29128 Filed 12–10–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2011–0821; FRL–9920–35– 

Region 6] 

Approval and Promulgation of Air 

Quality Implementation Plans; State of 

New Mexico; Infrastructure SIP 

Requirements for the 2008 Lead 

National Ambient Air Quality Standard 

and Repeal of Cement Kilns Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

elements of a State Implementation Plan 

(SIP) submission from the State of New 

Mexico addressing the applicable 

requirements of Clean Air Act (CAA) 

section 110 for the 2008 National 

Ambient Air Quality Standards 

(NAAQS) for Lead (Pb), which requires 

that each state adopt and submit a SIP 

to support implementation, 

maintenance, and enforcement of each 

new or revised NAAQS promulgated by 

EPA. These SIPs are commonly referred 

to as ‘‘infrastructure’’ SIPs. The 

infrastructure requirements are designed 

to ensure that the structural components 

of each state’s air quality management 

program are adequate to meet the state’s 

responsibilities under the CAA. 

Additionally, we are proposing to 

approve a revision to the New Mexico 

SIP that repeals an existing state-wide 

cement kilns rule. 

DATES: Written comments must be 

received on or before January 12, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R06–OAR–2011–0821, by one of the 

following methods: 

• www.regulations.gov. Follow the 

online instructions. 

• Email: Mr. Terry Johnson at 

johnson.terry@epa.gov. 

• Mail or delivery: Mr. Guy 

Donaldson, Chief, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 1200, 

Dallas, Texas 75202–2733. 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–2011– 

0821. 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 files 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. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Terry Johnson, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone 214–665–2154; fax number 

214–665–6762; email address 

johnson.terry@epamail.epa.gov for 

information concerning the 

infrastructure SIP submittal for the 2008 

Pb NAAQS, or Mr. Alan Shar, telephone 

(214) 665–6691, email address 

shar.alan@epa.gov for information 

concerning the revision to the SIP to 

repeal the cement kilns rule. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

Table of Contents 

I. Background 

II. Applicable Elements of Sections 110(a)(1) 

and (2) Related to the 2008 Pb NAAQS 

III. EPA’s Approach to the Review of 

Infrastructure SIP Submissions 

IV. EPA’s Evaluation of New Mexico’s 2008 

Pb NAAQS Infrastructure Submission 

V. EPA’s Evaluation of New Mexico’s SIP 

Revision Repealing the Cement Kilns 

Rule 

VI. Proposed Action 

VII. Statutory and Executive Order Reviews 

I. Background 

EPA is proposing action on a 

September 9, 2011 SIP submission from 

New Mexico that addresses the 

infrastructure requirements of CAA 

sections 110(a)(1) and (a)(2) for the 2008 

Pb NAAQS. The requirement for states 

to make a SIP submission of this type 

arises out of CAA section 110(a)(1). 42 

U.S.C. Sec. 7410(a)(1). Pursuant to 

section 110(a)(1), states must make SIP 

submissions ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof),’’ and 

these SIP submissions are to provide for 

the ‘‘implementation, maintenance, and 


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1The previous Pb NAAQS were issued in 1978. 

They established a primary standard of 1.5 mg/m3 

not to be exceeded with an averaging time of 

discrete calendar quarters (43 FR 46246, October 5, 

1978). 

2Although the effective date of the Federal 

Register notice for the final rule was January 12, 

2009, the rule was signed by the Administrator and 

publicly disseminated on October 15, 2008. 

Therefore, the deadline for submittal of 

infrastructure SIPs for the 2008 Pb NAAQS was 

October 15, 2011. 

3For example: Section 110(a)(2)(E)(i) provides 

that states must provide assurances that they have 

adequate legal authority under state and local law 

to carry out the SIP; section 110(a)(2)(C) provides 

that states must have a SIP-approved program to 

address certain sources as required by part C of title 

I of the CAA; and section 110(a)(2)(G) provides that 

states must have legal authority to address 

emergencies as well as contingency plans that are 

triggered in the event of such emergencies. 

4See, e.g., ‘‘Rule To Reduce Interstate Transport 

of Fine Particulate Matter and Ozone (Clean Air 

Interstate Rule); Revisions to Acid Rain Program; 

Revisions to the NOX SIP Call; Final Rule,’’ 70 FR 

25162, at 25163–65 (May 12, 2005) (explaining 

relationship between timing requirement of section 

110(a)(2)(D) versus section 110(a)(2)(I)). 

5EPA notes that this ambiguity within section 

110(a)(2) is heightened by the fact that various 

subparts of part D set specific dates for submission 

of certain types of SIP submissions in designated 

nonattainment areas for various pollutants. Note, 

e.g., that section 182(a)(1) provides specific dates 

for submission of emissions inventories for the 

ozone NAAQS. Some of these specific dates are 

necessarily later than three years after promulgation 

of the new or revised NAAQS. 

enforcement’’ of such NAAQS. Section 

110(a)(2) includes a list of specific 

elements that ‘‘[e]ach such plan’’ 

submission must address. EPA has 

historically referred to these SIP 

submissions made for the purpose of 

satisfying the requirements of CAA 

sections 110(a)(1) and (a)(2) as 

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of Title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A, and nonattainment 

new source review permit program 

submissions to address the permit 

requirements of CAA, title I, part D. 

We are also proposing to approve 

revisions to New Mexico Administrative 

Code (NMAC), Title 20 Environmental 

Protection, Chapter 2 Air Quality 

(Statewide), Part 12 Cement Kilns 

(NMAC 20.2.12—Cement Kilns) rule 

submitted to EPA by the New Mexico 

Environment Department (NMED) 

through a letter dated July 31, 2014. 

This SIP revision repeals the existing 

cement kilns rule in effect. 

The existing NMAC 20.2.12—Cement 

Kilns rule was part of the original New 

Mexico SIP, and last approved by EPA 

on September 26, 1997 (62 FR 50518). 

See also 40 CFR 52.1620(c)(66). 

II. Applicable Elements of Sections 

110(a)(1) and (2) Related to the 2008 Pb 

NAAQS 

On October 15, 2008, EPA revised the 

primary and secondary Pb NAAQS 

(hereafter the 2008 Pb NAAQS).1 The 

level of the primary (health-based) 

standard was revised to 0.15 

micrograms per cubic meter (mg/m3), 

measured as total suspended particles 

(TSP) and not to be exceeded with an 

averaging time of a rolling 3-month 

period. EPA also revised the secondary 

(welfare-based) standard to be identical 

to the primary standard (73 FR 66964).2

For the 2008 Pb NAAQS, states 

typically have met many of the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with 

previous NAAQS. Nevertheless, 

pursuant to section 110(a)(1), states 

have to review and revise, as 

appropriate, their existing SIPs to 

ensure that they are adequate to address 

the 2008 Pb NAAQS. To assist states in 

meeting this statutory requirement, EPA 

issued guidance on October 14, 2011, 

addressing the infrastructure SIP 

elements required under sections 

110(a)(1) and (2) for the 2008 Pb 

NAAQS.2 EPA will address these 

elements below under the following 

headings: (A) Emission limits and other 

control measures; (B) Ambient air 

quality monitoring/data system; (C) 

Program for enforcement of control 

measures (PSD, New Source Review for 

nonattainment areas, and construction 

and modification of all stationary 

sources); (D) Interstate and international 

transport; (E) Adequate authority, 

resources, implementation, and 

oversight; (F) Stationary source 

monitoring system; (G) Emergency 

authority; (H) Future SIP revisions; (I) 

Nonattainment areas; (j) Consultation 

with government officials, public 

notification, prevention of significant 

deterioration (PSD), and visibility 

protection; (K) Air quality and 

modeling/data; (L) Permitting fees; and 

(M) Consultation/participation by 

affected local entities. 

III. EPA’s Approach to the Review of 

Infrastructure SIP Submissions 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. The list of required 

elements provided in section 110(a)(2) 

contains a wide variety of disparate 

provisions, some of which pertain to 

required legal authority, some of which 

pertain to required substantive program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.3 EPA 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 

inclusion in an infrastructure SIP 

submission. 

The following examples of 

ambiguities illustrate the need for EPA 

to interpret some section 110(a)(1) and 

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

that section 110(a)(2) requires that 

‘‘each’’ SIP submission must meet the 

list of requirements therein, while EPA 

has long noted that this literal reading 

of the statute is internally inconsistent 

and would create a conflict with the 

nonattainment provisions in part D of 

title I of the Act, which specifically 

address nonattainment SIP 

requirements.4 Section 110(a)(2)(I) 

pertains to nonattainment SIP 

requirements and part D addresses 

when attainment plan SIP submissions 

to address nonattainment area 

requirements are due. For example, 

section 172(b) requires EPA to establish 

a schedule for submission of such plans 

for certain pollutants when the 

Administrator promulgates the 

designation of an area as nonattainment, 

and section 107(d)(1)(B) allows up to 

two years, or in some cases three years, 

for such designations to be 

promulgated.5 This ambiguity illustrates 

that rather than apply all the stated 

requirements of section 110(a)(2) in a 

strict literal sense, EPA must determine 

which provisions of section 110(a)(2) 

are applicable for a particular 

infrastructure SIP submission. 

Another example of ambiguity within 

sections 110(a)(1) and 110(a)(2) with 

respect to infrastructure SIPs pertains to 

whether states must meet all of the 

infrastructure SIP requirements in a 

single SIP submission, and whether EPA 

must act upon such SIP submission in 

a single action. Although section 

110(a)(1) directs states to submit ‘‘a 

plan’’ to meet these requirements, EPA 


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6See, e.g., ‘‘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,’’ 78 FR 

4339 (January 22, 2013) (EPA’s final action 

approving the structural PSD elements of the New 

Mexico SIP submitted by the State separately to 

meet the requirements of EPA’s 2008 PM2.5 NSR 

rule), and ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New Mexico; 

Infrastructure and Interstate Transport 

Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR 

4337) (January 22, 2013) (EPA’s final action on the 

infrastructure SIP for the 2006 PM2.5 NAAQS). 

7On December 14, 2007, the State of Tennessee, 

through the Tennessee Department of Environment 

and Conservation, made a SIP revision to EPA 

demonstrating that the State meets the requirements 

of sections 110(a)(1) and (2). EPA proposed action 

for infrastructure SIP elements (C) and (J) on 

January 23, 2012 (77 FR 3213) and took final action 

on March 14, 2012 (77 FR 14976). On April 16, 

2012 (77 FR 22533) and July 23, 2012 (77 FR 

42997), EPA took separate proposed and final 

actions on all other section 110(a)(2) infrastructure 

SIP elements of Tennessee’s December 14, 2007 

submittal. 

8For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

9EPA notes, however, that nothing in the CAA 

requires EPA to provide guidance or to promulgate 

regulations for infrastructure SIP submissions. The 

CAA directly applies to states and requires the 

submission of infrastructure SIP submissions, 

regardless of whether or not EPA provides guidance 

or regulations pertaining to such submissions. EPA 

elects to issue such guidance in order to assist 

states, as appropriate. 

10 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

Air Act Sections 110(a)(1) and 110(a)(2),’’ 

Memorandum from Stephen D. Page, September 13, 

2013. 

11EPA’s September 13, 2013, guidance did not 

make recommendations with respect to 

infrastructure SIP submissions to address section 

110(a)(2)(D)(i)(I). EPA issued the guidance shortly 

after the U.S. Supreme Court agreed to review the 

D.C. Circuit decision in EME Homer City, 696 F.3d7 

(D.C. Cir. 2012) which had interpreted the 

requirements of section 110(a)(2)(D)(i)(I). In light of 

the uncertainty created by ongoing litigation, EPA 

elected not to provide additional guidance on the 

requirements of section 110(a)(2)(D)(i)(I) at that 

time. As the guidance is neither binding nor 

required by statute, whether EPA elects to provide 

guidance on a particular section has no impact on 

a state’s CAA obligations. 

interprets the CAA to allow states to 

make multiple SIP submissions 

separately addressing infrastructure SIP 

elements for the same NAAQS. If states 

elect to make such multiple SIP 

submissions to meet the infrastructure 

SIP requirements, EPA can elect to act 

on such submissions either individually 

or in a larger combined action.6

Similarly, EPA interprets the CAA to 

allow it to take action on the individual 

parts of one larger, comprehensive 

infrastructure SIP submission for a 

given NAAQS without concurrent 

action on the entire submission. For 

example, EPA has sometimes elected to 

act at different times on various 

elements and sub-elements of the same 

infrastructure SIP submission.7

Ambiguities within sections 110(a)(1) 

and 110(a)(2) may also arise with 

respect to infrastructure SIP submission 

requirements for different NAAQS. 

Thus, EPA notes that not every element 

of section 110(a)(2) would be relevant, 

or as relevant, or relevant in the same 

way, for each new or revised NAAQS. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

110(a)(2)(B) could be very different for 

different pollutants, for example 

because the content and scope of a 

state’s infrastructure SIP submission to 

meet this element might be very 

different for an entirely new NAAQS 

than for a minor revision to an existing 

NAAQS.8

EPA notes that interpretation of 

section 110(a)(2) is also necessary when 

EPA reviews other types of SIP 

submissions required under the CAA. 

Therefore, as with infrastructure SIP 

submissions, EPA also has to identify 

and interpret the relevant elements of 

section 110(a)(2) that logically apply to 

these other types of SIP submissions. 

For example, section 172(c)(7) requires 

that attainment plan SIP submissions 

required by part D have to meet the 

‘‘applicable requirements’’ of section 

110(a)(2). Thus, for example, attainment 

plan SIP submissions must meet the 

requirements of section 110(a)(2)(A) 

regarding enforceable emission limits 

and control measures and section 

110(a)(2)(E)(i) regarding air agency 

resources and authority. By contrast, it 

is clear that attainment plan SIP 

submissions required by part D would 

not need to meet the portion of section 

110(a)(2)(C) that pertains to the PSD 

program required in part C of title I of 

the CAA, because PSD does not apply 

to a pollutant for which an area is 

designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submission may implicate some 

elements of section 110(a)(2) but not 

others. 

Given the potential for ambiguity in 

some of the statutory language of section 

110(a)(1) and section 110(a)(2), EPA 

believes that it is appropriate to 

interpret the ambiguous portions of 

section 110(a)(1) and section 110(a)(2) 

in the context of acting on a particular 

SIP submission. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submission, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submissions against 

the list of elements in section 110(a)(2), 

but only to the extent each element 

applies for that particular NAAQS. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

individual SIP submissions for 

particular elements.9 EPA most recently 

issued guidance for infrastructure SIPs 

on September 13, 2013 (2013 

Guidance).10 EPA developed this 

document to provide states with up-todate guidance for infrastructure SIPs for 

any new or revised NAAQS. Within this 

guidance, EPA describes the duty of 

states to make infrastructure SIP 

submissions to meet basic structural SIP 

requirements within three years of 

promulgation of a new or revised 

NAAQS. EPA also made 

recommendations about many specific 

subsections of section 110(a)(2) that are 

relevant in the context of infrastructure 

SIP submissions.11 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). 

Significantly, EPA interprets sections 

110(a)(1) and 110(a)(2) such that 

infrastructure SIP submissions need to 

address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

section 110(a)(2), as appropriate. 

As an example, section 110(a)(2)(E)(ii) 

is a required element of section 

110(a)(2) for infrastructure SIP 

submissions. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submissions to ensure that the state’s 

SIP appropriately addresses the 

requirements of section 110(a)(2)(E)(ii) 

and section 128. The 2013 Guidance 

explains EPA’s interpretation that there 

may be a variety of ways by which states 

can appropriately address these 

substantive statutory requirements, 

depending on the structure of an 


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12By contrast, EPA notes that if a state were to 

include a new provision in an infrastructure SIP 

submission that contained a legal deficiency, such 

as a new exemption for excess emissions during 

SSM events, then EPA would need to evaluate that 

provision for compliance against the rubric of 

applicable CAA requirements in the context of the 

action on the infrastructure SIP. 

13For example, EPA issued a SIP call to Utah to 

address specific existing SIP deficiencies related to 

the treatment of excess emissions during SSM 

events. See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revisions,’’ 74 FR 21639 

(April 18, 2011). 

14EPA has used this authority to correct errors in 

past actions on SIP submissions related to PSD 

programs. See ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536 (December 30, 2010). EPA has previously 

used its authority under CAA section 110(k)(6) to 

remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, 

e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 

(June 27, 1997) (corrections to American Samoa, 

Arizona, California, Hawaii, and Nevada SIPs); 69 

FR 67062 (November 16, 2004) (corrections to 

California SIP); and 74 FR 57051 (November 3, 

2009) (corrections to Arizona and Nevada SIPs). 

individual state’s permitting or 

enforcement program (e.g., whether 

permits and enforcement orders are 

approved by a multi-member board or 

by a head of an executive agency). 

However they are addressed by the 

state, the substantive requirements of 

section 128 are necessarily included in 

EPA’s evaluation of infrastructure SIP 

submissions because section 

110(a)(2)(E)(ii) explicitly requires that 

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

requirements in sections 110(a)(2)(C), 

(D)(i)(II), and (J) focuses upon the 

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and NSR 

pollutants, including GHGs. By contrast, 

structural PSD program requirements do 

not include provisions that are not 

required under EPA’s regulations at 40 

CFR 51.166 but are merely available as 

an option for the state, such as the 

option to provide grandfathering of 

complete permit applications with 

respect to the 2012 PM2.5 NAAQS. 

Accordingly, the latter optional 

provisions are types of provisions EPA 

considers irrelevant in the context of an 

infrastructure SIP action. 

For other section 110(a)(2) elements, 

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s SIP meets 

basic structural requirements. For 

example, section 110(a)(2)(C) includes, 

inter alia, the requirement that states 

have a program to regulate minor new 

sources. Thus, EPA evaluates whether 

the state has an EPA-approved minor 

new source review program and 

whether the program addresses the 

pollutants relevant to that NAAQS. In 

the context of acting on an 

infrastructure SIP submission, however, 

EPA does not think it is necessary to 

conduct a review of each and every 

provision of a state’s existing minor 

source program (i.e., already in the 

existing SIP) for compliance with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) Existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction 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 may be contrary to the 

CAA because they purport to allow 

revisions to SIP-approved emissions 

limits while limiting public process or 

not requiring further approval by EPA; 

and (iii) 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’’). Thus, EPA believes it may 

approve an infrastructure SIP 

submission without scrutinizing the 

totality of the existing SIP for such 

potentially deficient provisions and may 

approve the submission even if it is 

aware of such existing provisions.12 It is 

important to note that EPA’s approval of 

a state’s infrastructure SIP submission 

should not be construed as explicit or 

implicit re-approval of any existing 

potentially deficient provisions that 

relate to the three specific issues just 

described. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

110(a)(1) and the list of elements in 

110(a)(2) as requiring review of each 

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up to date, nevertheless 

may not pose a significant problem for 

the purposes of ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

section 110(a)(2) of the CAA most likely 

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

requirements of section 

110(a)(2)(D)(i)(II), because carbon 

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

110(a)(2)(D)(i)(II). 

Finally, EPA believes that its 

approach with respect to infrastructure 

SIP requirements is based on a 

reasonable reading of sections 110(a)(1) 

and 110(a)(2) because the CAA provides 

other avenues and mechanisms to 

address specific substantive deficiencies 

in existing SIPs. These other statutory 

tools allow EPA to take appropriately 

tailored action, depending upon the 

nature and severity of the alleged SIP 

deficiency. Section 110(k)(5) authorizes 

EPA to issue a ‘‘SIP call’’ whenever the 

Agency determines that a state’s SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or to otherwise 

comply with the CAA.13 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.14

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submission is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action to correct those 

deficiencies at a later time. For example, 

although it may not be appropriate to 


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15See, e.g., EPA’s disapproval of a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 

(July 21, 2010) (proposed disapproval of director’s 

discretion provisions); 76 FR 4540 (Jan. 26, 2011) 

(final disapproval of such provisions). 

16The specific nonattainment area plan 

requirements of section 110(a)(2)(I) are subject to 

the timing requirements of section 172, not the 

timing requirement of section 110(a)(1). Thus, 

section 110(a)(2)(A) does not require that states 

submit regulations or emissions limits specifically 

for attaining the 2008 Pb NAAQS. Those SIP 

provisions are due as part of each state’s attainment 

plan, and will be addressed separately from the 

requirements of section 110(a)(2)(A). In the context 

of an infrastructure SIP, EPA is not evaluating the 

existing SIP provisions for this purpose. Instead, 

EPA is only evaluating whether the state’s SIP has 

basic structural provisions for the implementation 

of the NAAQS. 

require a state to eliminate all existing 

inappropriate director’s discretion 

provisions in the course of acting on an 

infrastructure SIP submission, EPA 

believes that section 110(a)(2)(A) may be 

among the statutory bases that EPA 

relies upon in the course of addressing 

such deficiency in a subsequent 

action.15

IV. EPA’s Evaluation of New Mexico’s 

2008 Pb NAAQS Infrastructure 

Submission 

On September 9, 2011, the State of 

New Mexico, by letter from the 

Governor of New Mexico, submitted a 

SIP revision to address the 

infrastructure SIP requirements for the 

2008 Pb NAAQS. The SIP submission 

offers a demonstration that New 

Mexico’s existing SIP satisfies all 

infrastructure SIP elements required by 

section 110(a)(2) of the CAA for the 

2008 Pb NAAQS. Public notice and a 

public hearing were provided by the 

State of New Mexico when developing 

this SIP submission. This SIP 

submission became complete by 

operation of law on March 9, 2012. See 

CAA section 110(k)(1)(B). EPA has 

reviewed New Mexico’s infrastructure 

SIP submission and the relevant 

statutory and regulatory authorities and 

provisions referenced in that 

submission or referenced in New 

Mexico’s SIP. Below is EPA’s evaluation 

of how the State addressed the 

applicable elements of section 110(a)(2) 

for the 2008 Pb NAAQS. For additional 

information on our evaluation of the 

State’s infrastructure SIP submittal, 

please refer to the Technical Support 

Document in the rulemaking docket. 

A. Emission Limits and Other Control 

Measures 

The CAA section 110(a)(2)(A) requires 

SIPs to include enforceable emission 

limits and other control measures, 

means or techniques, schedules for 

compliance and other related matters as 

needed to implement, maintain and 

enforce each of the NAAQS.16

New Mexico’s Environmental 

Improvement Act and Air Quality 

Control Act authorize the New Mexico 

Environment Department (NMED) to 

regulate air quality and implement air 

quality control regulations. Specifically, 

the New Mexico Air Quality Control Act 

delegates authority to the 

Environmental Improvement Board 

(EIB) to adopt, promulgate, publish, 

amend and repeal regulations consistent 

with the State’s Air Quality Control Act 

to attain and maintain NAAQS and 

prevent or abate air pollution (see New 

Mexico Statutes Annotated (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. These 

statutes have been approved into the SIP 

(see 44 FR 21019, April 9, 1979; revised 

49 FR 44101, November 2, 1984; recodified and approved in 62 FR 50518, 

September 26, 1997). 

NMED’s air quality rules and 

standards are codified at Title 20 

Environmental Protection, Chapter 2 Air 

Quality (Statewide) of the NMAC. 

Numerous parts of the regulations 

codified into Chapter 2 necessary for 

implementing and enforcing the 

NAAQS have been adopted into the SIP. 

These include Part 1 General Provisions 

(75 FR 48860), Part 2 Definitions (62 FR 

50514), Part 3 Ambient Air Quality 

Standards (76 FR 41698), Part 5 Source 

Surveillance (62 FR 50514), Part 7 

Excess Emissions (74 FR 46910), and 

Part 8 Emissions Leaving New Mexico 

(62 FR 50514). Collectively these 

regulations identify the Air Quality 

Bureau’s powers and responsibilities, 

define air quality standards, authorize 

monitoring, sampling and testing for 

emissions, and regulate interstate 

transport of emissions originating in 

New Mexico. The regulations and 

standards in Parts 10–61 pertain to 

emissions of certain pollutants from 

specific emission sources, activities and 

locales, and last full approval of these 

regulations into the SIP was made on 

September 26, 1997 (62 FR 50514). 

Permitting requirements, emissions 

reporting, and fees are regulated by 

Parts 72 Construction Permits (62 FR 

50514), Part 73 Notice of Intent and 

Emissions Inventory Requirements (75 

FR 48860), Part 74 Permits—Prevention 

of Significant Deterioration (76 FR 

43149), Part 75 Construction Permit 

Fees (77 FR 18923), Part 79 Permits— 

Nonattainment Areas (72 FR 50879), 

and Part 80 Stack Heights (62 FR 

50514). EPA’s NAAQS, including the 

2008 Pb NAAQS, are adopted by 

reference into these permitting 

regulations. Conformity requirements 

and transportation-related emissions are 

regulated under Part 99 Conformity to 

the State Implementation Plan of 

Transportation Plans, Programs, and 

Projects (65 FR 14873 and 75 FR 21169). 

Based upon review of the State’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in New Mexico’s SIP, EPA 

believes that the New Mexico SIP 

adequately addresses the requirements 

of section 110(a)(2)(A) for the 2008 Pb 

NAAQS and is proposing to approve 

this element of the September 9, 2011, 

SIP submission. 

B. Ambient Air Quality Monitoring/Data 

System 

The CAA section 110(a)(2)(B) requires 

SIPs to include provisions to provide for 

establishment and operation of ambient 

air quality monitors, collection and 

analysis of ambient air quality data, and 

making these data available to EPA 

upon request. 

To address this element, the Air 

Quality Control Act at Section NMSA 

1978, section 74–2–5 provides the 

enabling authority necessary for the 

New Mexico EIB and NMED to fulfill 

the requirements of section 110(a)(2)(B). 

The Air Quality Bureau (AQB) within 

NMED implements these requirements. 

Along with their other duties, the AQB 

collects air monitoring data, qualityassures the results, and reports the data. 

Historically, EPA has promulgated 

regulations in 40 CFR 58 (Ambient Air 

Quality Surveillance), indicating the 

necessary data states need to collect and 

submit as part of their SIPs. For the 

2008 Pb NAAQS, EPA regulations 

require that ambient monitoring be 

conducted in every urban area with 

National Core (‘‘NCore’’) monitoring 

sites and with populations equal to or 

exceeding 500,000 people, and that 

‘‘source-oriented’’ monitoring be 

conducted in the vicinity of any 

stationary point sources that emit Pb in 

amounts exceeding 1,000 pounds per 

year. 

The New Mexico statewide air quality 

surveillance network was approved into 

the New Mexico SIP by EPA on August 

6, 1981 (46 FR 40005). Furthermore, 

New Mexico’s air quality surveillance 

network undergoes recurrent annual 

review by EPA, as required by 40 CFR 

58.10. On July 15, 2013, NMED 


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17A copy of the 2013 AAMNP and EPA’s 

approval letter are included in the docket for this 

proposed rulemaking. 

18A copy of the 2010 5-year ambient monitoring 

network assessment and EPA’s approval letter are 

included in the docket for this proposed 

rulemaking. 

19The Albuquerque metropolitan area, centered 

on the city of Albuquerque in Bernalillo County, 

contains more than 500,000 people, but Bernalillo 

County is not within the jurisdiction of NMED. The 

local air quality district for Albuquerque and 

Bernalillo County is responsible for conducting 

ambient Pb monitoring for the Albuquerque area. 

20An inventory of stationary sources located in 

New Mexico that emit Pb, based on the 2011 

triennial NEI, is included in the Technical Support 

Document, available in the docket for this proposed 

rulemaking. 

21See http://www.nmenv.state.nm.us/aqb/

monitor/airmonitoringnetwork.html. 

22See http://air.nmenv.state.nm.us. 

23These include for example, special purpose 

monitors (SPMs). Special purpose monitoring is 

conducted on a frequent basis for a variety of 

reasons: As a tool to supplement state ambient air 

monitoring networks to obtain information on 

where to locate permanent monitoring stations, to 

provide additional data in support of pollutant 

formation and transport analyses, or to assess air 

quality in a particular location. These studies vary 

in duration from being temporary sites needed only 

during a portion of the year to long-term air 

pollution studies over a large area. 

24As discussed in further detail below, this 

infrastructure SIP rulemaking will not address the 

New Mexico program for provisions related to 

nonattainment areas, since EPA considers 

evaluation of these provisions to be outside the 

scope of infrastructure SIP actions. 

submitted its 2013 Annual Air 

Monitoring Network Plan (AAMNP) that 

included ambient monitoring for the 

2008 Pb NAAQS, and EPA approved the 

2013 AAMNP on February 19, 2014.17

In addition, NMED conducts a recurrent 

assessment of its monitoring network 

every five years, which includes an 

evaluation of the need to conduct 

ambient monitoring for Pb, as required 

by 40 CFR 58.10(d). The most recent of 

these 5-year monitoring network 

assessments was conducted by NMED 

and submitted in June 2010, and was 

subsequently approved by EPA.18 In 

evaluating the need to perform ambient 

monitoring for Pb in its most recent 5- 

year monitoring network assessment, 

NMED concluded that no ambient 

monitoring network for Pb was 

necessary because there are no urban 

areas with populations equal to or 

exceeding 500,000 people within its 

area of jurisdiction 19 and because there 

are no stationary point sources 

anywhere within New Mexico or in 

close proximity to its borders that emit 

Pb in quantities exceeding 1,000 pounds 

per year. We have verified through the 

National Emission Inventory System 

that no stationary sources exist within 

New Mexico that emit Pb in quantities 

equal to or exceeding 1,000 pounds per 

year,20 and through review of the most 

recently available census data we have 

confirmed that there are no 

metropolitan areas with populations of 

500,000 or more people within NMED’s 

area of jurisdiction. NMED will 

continue to evaluate the need to 

conduct ambient monitoring for Pb 

every five years when it performs its 

recurrent ambient monitoring network 

assessment. 

The AQB makes NMED’s ambient 

monitoring data available for public 

review on its Web site.21 The NMED 

Web site provides the monitor locations 

and posts past and current 

concentrations of criteria pollutants 

measured in the State’s network of 

monitors.22 The NMED monitors that 

are not certified as meeting the federal 

requirements are identified as ‘‘nonregulatory’’ monitors.23 The State 

submits air monitoring data to EPA on 

a quarterly basis and certifies the data 

annually. 

Based upon review of the State’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in New Mexico’s SIP, EPA 

believes that the New Mexico SIP meets 

the requirements of section 110(a)(2)(B) 

for the 2008 Pb NAAQS and is 

proposing to approve this element of the 

September 9, 2011 submission. 

C. Program for Enforcement of Control 

Measures (PSD, New Source Review for 

Nonattainment Areas, and Construction 

and Modification of All Stationary 

Sources 

The CAA section 110(a)(2)(C) requires 

states to include the following three 

elements in the SIP: (1) A program 

providing for enforcement of all SIP 

measures described in section 

110(a)(2)(A); (2) a program for the 

regulation of the modification and 

construction of stationary sources as 

necessary to protect the applicable 

NAAQS (i.e., state-wide permitting of 

minor sources); and (3) a permit 

program to meet the major source 

permitting requirements of the CAA (for 

areas designated as attainment or 

unclassifiable for the NAAQS in 

question).24

1. Enforcement of SIP Measures 

With respect to enforcement of 

requirements of the SIP, the New 

Mexico statutes provide authority for 

the Environmental Improvement Board 

and the NMED to enforce the 

requirements of the Air Quality Control 

Act, and any regulations, permits, or 

final compliance orders issued under 

the provisions of the Act. General 

enforcement authority is provided by 

NMSA 1978 74–1 and NMSA 1978 74– 

2, which address general enforcement 

power; investigation and remediation 

agreements; civil and criminal penalties; 

compliance orders and emergency cease 

and desist orders; civil actions; a field 

citation program. 

The Environmental Improvement Act, 

which has been approved into the SIP 

(49 FR 44101; 64 FR 29255), authorizes 

the creation of the Environmental 

Improvement Board (NMSA 1978, 

section 74–1–4); authorizes the EIB, the 

NMED, and its Secretary to file lawsuits, 

conduct investigations and enter into 

remediation agreements, enforce rules, 

regulations and orders promulgated by 

the EIB, and collect civil penalties 

(NMSA 1978, section 74–1–6); develop 

and enforce rules and standards related 

to protection of air quality (NMSA 1978, 

sections 74–1–7 and 74–1–8); and issue 

compliance orders and commence civil 

actions in response to violations (NMSA 

1978, section 74–1–10). 

Likewise, the Air Quality Control Act 

empowers the EIB and NMED to 

institute legal proceedings to compel 

compliance with the Air Quality Control 

Act and any regulations of the EIB or 

local air quality control agencies (NMSA 

1978, section 74–2–5.1); issue 

compliance orders, commence civil 

actions, and issue field citations 

(NMSA1978, section 74–2–12); assess 

civil penalties for violations of the Act 

or regulations promulgated under it or 

permits issued (NMSA 1978, section 

74–2–12.1); conduct inspections of 

regulated entities (NMSA 1978, section 

74–2–13); and pursue criminal 

prosecutions (NMSA 1978, section 74– 

2–14). Additional enforcement 

authorities and funding mechanisms are 

provided by the Act at NMSA 1978, 

section 74–2–15. These sections of the 

Air Quality Control Act were adopted 

into the SIP on November 2, 1984 (49 

FR 44101). 

NMED air quality standards and 

regulations containing specific 

enforcement provisions and adopted 

into the SIP include: 20.2.7 NMAC 

Excess Emissions (74 FR 46910) and 

20.2.72 NMAC Construction Permits (38 

FR 12702 and 62 FR 50514). 

2. Minor New Source Review 

Section 110(a)(2)(C) also requires that 

the SIP include measures to regulate 

construction and modification of 

stationary sources to protect the 

NAAQS. With respect to smaller 

statewide minor sources 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 


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necessary to assure that the NAAQS are 

achieved’’ (70 FR 71612 and 71677). 

EPA provides states with discretion in 

implementing their Minor NSR 

programs (71 FR 48696 and 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 (see 20.2.72.200 NMAC). New 

Mexico’s Minor NSR permitting 

requirements are found at 20.2.72 

NMAC—Construction Permits and were 

approved into the SIP on May 14, 1973 

(38 FR 12702), with revisions approved 

on September 26, 1997 (62 FR 50514), 

June 13, 2012 (77 FR 35273), and March 

11, 2013 (78 FR 15296). 

In this action, EPA is proposing to 

approve New Mexico’s infrastructure 

SIP for the 2008 Pb standard with 

respect to the general requirement in 

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. However, 

EPA is not proposing to approve or 

disapprove New Mexico’s existing 

Minor NSR program to the extent that it 

may be inconsistent with EPA’s 

regulations governing this program. EPA 

has maintained that the CAA does not 

require that new infrastructure SIP 

submissions correct any defects in 

existing EPA-approved provisions of 

minor NSR programs in order for EPA 

to approve the infrastructure SIP for 

element C (e.g., 76 FR 41076–41079). 

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. 

3. Prevention of Significant 

Deterioration (PSD) Permit Program 

New Mexico also has a program 

approved by EPA as meeting the 

requirements of part C, relating to 

prevention of significant deterioration of 

air quality. In order to demonstrate that 

New Mexico has met this sub-element, 

this PSD program must cover 

requirements not just for the 2008 Pb 

NAAQS, but for all other regulated NSR 

pollutants as well. 

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). 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 approved the May 23, 2011, 

revision in a Federal Register notice 

signed January 22, 2013, as these 

elements are necessary for 

implementation of the PM2.5 standard 

(78 FR 4339). 

The 2008 Pb NAAQs are substantially 

lower than the previous Pb NAAQs, and 

this may require EPA to revise the PSD 

applicability thresholds in the future, 

with regard to Pb emissions. However, 

at this time EPA has not proposed to 

amend the PSD regulations with regard 

to the 2008 Pb NAAQS. We do, 

however, recognize that certain 

provisions of these regulations still may 

need to be evaluated and potentially 

revised in light of the revised Pb 

standard, particularly with regards to 

applicability thresholds for increases in 

emissions resulting from the 

construction of new sources or 

modifications to existing sources. 

With respect to the infrastructure 

elements contained in section 

110(a)(2)(C) and (J), EPA interprets the 

Clean Air Act to require each state to 

make an infrastructure SIP submission 

for a new or revised NAAQS that 

demonstrates that the air agency has a 

complete PSD permitting program 

meeting the current requirements for all 

regulated NSR pollutants. The 

requirements of section 

110(a)(2)(D)(i)(II) may also be satisfied 

by demonstrating the air agency has a 

complete PSD permitting program 

correctly addressing all regulated NSR 

pollutants. New Mexico has shown that 

it currently has a PSD program in place 

that covers all regulated NSR pollutants, 

including greenhouse gases (GHGs). 

On June 23, 2014, the United States 

Supreme Court issued a decision 

addressing the application of PSD 

permitting requirements to GHG 

emissions. (see Utility Air Regulatory 

Group v. Environmental Protection 

Agency, 134 S.Ct. 2427) The Supreme 

Court said that the EPA may not treat 

GHGs as an air pollutant for purposes of 

determining whether a source is a major 

source required to obtain a PSD permit. 

The Court also said that the EPA could 

continue to require that PSD permits, 

otherwise required based on emissions 

of pollutants other than GHGs, contain 

limitations on GHG emissions based on 

the application of Best Available 

Control Technology (BACT). In order to 

act consistently with its understanding 

of the Court’s decision pending further 

judicial action to effectuate the decision, 

the EPA is not continuing to apply EPA 

regulations that would require that SIPs 

include permitting requirements that 

the Supreme Court found 

impermissible. Specifically, EPA is not 

applying the requirement that a state’s 

SIP-approved PSD program require that 

sources obtain PSD permits when GHGs 

are the only pollutant (i) that the source 

emits or has the potential to emit above 

the major source thresholds, or (ii) for 

which there is a significant emissions 

increase and a significant net emissions 

increase from a modification (e.g. 40 

CFR 51.166(b)(48)(v)). EPA anticipates a 

need to revise federal PSD rules in light 

of the Supreme Court opinion. In 

addition, EPA anticipates that many 

states will revise their existing SIPapproved PSD programs in light of the 

Supreme Court’s decision. The timing 

and content of subsequent EPA actions 

with respect to the EPA regulations and 

state PSD program approvals are 

expected to be informed by additional 

legal process before the United States 

Court of Appeals for the District of 

Columbia Circuit. At this juncture, EPA 

is not expecting states to have revised 

their PSD programs for purposes of 

infrastructure SIP submissions and is 

only evaluating such submissions to 

assure that the state’s program correctly 

addresses GHGs consistent with the 

Supreme Court’s decision. 

EPA has previously approved New 

Mexico SIP revisions submitted to align 


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25http://www.epa.gov/airtrends/2011/report/

fullreport.pdf 

26Analysis by Mark Schmidt, OAQPS, ‘‘Ambient 

Pb’s Contribution to Class I Area Visibility 

Impairment,’’ June 17, 2011. 

the State’s PSD program rules for GHGs 

with federal requirements (76 FR 

43149). At present, EPA has determined 

the New Mexico SIP is sufficient to 

satisfy the infrastructure elements of 

sections 110(a)(2)(C), (D)(i)(II), and (J) 

with respect to GHGs because the PSD 

permitting program previously 

approved by EPA into the SIP continues 

to require that PSD permits (otherwise 

required based on emissions of 

pollutants other than GHGs) contain 

limitations on GHG emissions based on 

the application of BACT. Although the 

approved New Mexico PSD permitting 

program may currently contain 

provisions that are no longer necessary 

in light of the Supreme Court decision, 

this does not render the infrastructure 

SIP submission inadequate to satisfy the 

infrastructure elements of sections 

110(a)(2)(C), (D)(i)(II), and (J). The SIP 

contains the necessary PSD 

requirements at this time, and the 

application of those requirements is not 

impeded by the presence of other 

previously-approved provisions 

regarding the permitting of sources of 

GHGs that EPA does not consider 

necessary at this time in light of the 

Supreme Court decision. Accordingly, 

the Supreme Court decision does not 

affect EPA’s proposed approval of New 

Mexico’s infrastructure SIP as to the 

requirements of the infrastructure 

elements of sections 110(a)(2)(C), 

(D)(i)(II), and (J). 

Based upon review of the State’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in New Mexico’s SIP, with 

respect to the requirements of section 

110(a)(2)(C) for the 2008 Pb NAAQS, 

EPA is proposing to approve this 

element of the September 9, 2011, 

submission. 

D. Interstate and International 

Transport 

The CAA section 110(a)(2)(D)(i) 

includes four requirements referred to 

as prongs 1 through 4. Prongs 1 and 2 

are provided at section 110(a)(2)(D)(i)(I), 

and prongs 3 and 4 are provided at 

section 110(a)(2)(D)(i)(II). Section 

110(a)(2)(D)(i)(I) requires SIPs to include 

adequate provisions prohibiting any 

source or other type of emissions 

activity in one state from contributing 

significantly to nonattainment, or 

interfering with maintenance, of any 

NAAQS in another state. Section 

110(a)(2)(D)(i)(II) requires SIPs to 

include adequate provisions prohibiting 

any source or other type of emissions 

activity in one state from interfering 

with measures required of any other 

state to prevent significant deterioration 

of air quality or to protect visibility. 

With respect to prongs 1 and 2, the 

physical properties of Pb, which is very 

dense, prevent Pb emissions from 

experiencing a significant degree of 

travel in the ambient air. No complex 

chemistry is needed to form Pb or Pb 

compounds in the ambient air; 

therefore, ambient concentrations of Pb 

are typically highest near Pb sources. 

More specifically, there is a sharp 

decrease in ambient Pb concentrations 

as the distance from the source 

increases. According to EPA’s report 

entitled Our Nation’s Air: Status and 

Trends Through 2010, Pb 

concentrations that are not near a source 

of Pb are approximately 8 times less 

than the typical concentrations near the 

source.25 For these reasons, EPA 

believes that the requirements of prongs 

1 and 2 can be satisfied through a state’s 

assessment as to whether a lead source 

located within its state in close 

proximity to a state border has 

emissions that contribute significantly 

to the nonattainment in or interfere with 

maintenance of the NAAQS in the 

neighboring state. 

There are no areas within the State of 

New Mexico that are designated as 

nonattainment with respect to the 2008 

Pb NAAQS, and there are no significant 

sources of Pb emissions within the State 

that emit Pb in amounts equal to or 

exceeding 0.5 tons per year, and no 

sources of Pb emissions within two 

miles of a neighboring state line. Total 

Pb emissions within New Mexico 

(including Albuquerque/Bernalillo 

County, which is outside NMED’s 

jurisdiction) in 2011 were less than two 

tons, and most of the Pb-emitting 

sources within the State are general 

aviation airports where aviation 

gasoline containing tetra-ethyl lead is 

still in use. Therefore, we deem that 

New Mexico has presumptively satisfied 

the requirements of prongs 1 and 2. 

With respect to the PSD requirements 

of section 110(a)(2)(D)(i)(II)—prong 3, 

we note that New Mexico’s satisfaction 

of the applicable infrastructure SIP PSD 

requirements for attainment/

unclassifiable areas with regards to the 

2008 Pb NAAQS have been detailed in 

the section addressing section 

110(a)(2)(C). For sources not subject to 

PSD for any one of the pollutants 

subject to regulation under the CAA 

because they are in a nonattainment 

area for a NAAQS, New Mexico has 

adopted the nonattainment new source 

review (NNSR) provisions required for 

the 2008 Pb NAAQS and other NAAQS 

at 20.2.79 NMAC—Permits— 

Nonattainment Areas. 

With regard to the applicable 

requirements for visibility protection of 

section 110(a)(2)(D)(i)(II)—prong 4, 

significant impacts from Pb emissions 

from stationary sources are expected to 

be limited to short distances from the 

source and most, if not all, stationary 

sources of Pb emissions are located at 

sufficient distances from Class I areas 

such that visibility impacts would be 

negligible. Although Pb can be a 

component of coarse and fine particles, 

Pb generally comprises only a small 

fraction of coarse and fine particles. A 

recent agency study conducted to 

evaluate the extent that Pb could impact 

visibility concluded that Pb-related 

visibility impacts at Class I areas were 

found to be insignificant (e.g., less than 

0.10%).26

Section 110(a)(2)(D)(ii) also requires 

that the SIP ensure compliance with the 

applicable requirements of sections 126 

and 115 of the CAA, relating to 

interstate and international pollution 

abatement, respectively. Section 126(a) 

of the CAA requires new or modified 

sources to notify neighboring states of 

potential impacts from sources within 

the State. New Mexico regulations 

require that affected states receive 

notice prior to the commencement of 

any construction or significant 

modification of a major source. New 

Mexico’s rule concerning PSD 

construction permits at 20.2.74 

NMAC—Permits—Prevention of 

Significant Deterioration requires that 

the review of all PSD permit 

applications follows the procedures of 

20.2.74.400 NMAC—Public 

Participation and Notification and 

20.2.74.403 NMAC—Additional 

Requirements for Sources Impacting 

Class I Federal Areas, which require the 

permitting authority to provide 

neighboring states, tribal authorities, 

and Federal Land Managers of affected 

Class I Areas with copies of PSD permit 

applications received by the department 

and to issue a preliminary 

determination for public comment, with 

notification to affected states, tribal 

authorities, and Federal Land Managers 

of affected Class I Areas on or before the 

time notice is provided to the public. In 

addition, no source or sources located in 

New Mexico have been identified by 

EPA as having any interstate impacts 

under section 126 in any pending 

actions relating to any air pollutant. 

Section 115 of the CAA authorizes 

EPA to require a state to revise its SIP 


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under certain conditions to alleviate 

international transport into another 

country. There are no final findings 

under section 115 of the CAA against 

New Mexico with respect to any air 

pollutant. Thus, the State’s SIP does not 

need to include any provisions to meet 

the requirements of section 115. 

Based upon review of the State’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in New Mexico’s SIP, EPA 

believes that New Mexico has the 

adequate infrastructure needed to 

address sections 110(a)(2)(D)(i)(I) and 

(II)—prongs 1 through 4, and 

110(a)(2)(D)(ii) for the 2008 Pb NAAQS 

and is proposing to approve this 

element of the September 9, 2011, 

submission. 

E. Adequate Authority, Resources, 

Implementation, and Oversight 

The CAA section 110(a)(2)(E) requires 

that SIPs provide for the following: (1) 

Necessary assurances that the state (and 

other entities within the state 

responsible for implementing the SIP) 

will have adequate personnel, funding, 

and authority under state or local law to 

implement the SIP, and that there are no 

legal impediments to such 

implementation; (2) requirements that 

the state comply with the requirements 

relating to state boards, pursuant to 

section 128 of the CAA; and (3) 

necessary assurances that the state has 

responsibility for ensuring adequate 

implementation of any plan provision 

for which it relies on local governments 

or other entities to carry out that portion 

of the plan. 

Section 110(a)(2)(E)(i) requires states 

to establish that they have adequate 

personnel, funding and authority to 

implement the NAAQS. With respect to 

adequacy of authority, we have 

previously discussed New Mexico’s 

statutory and regulatory authority to 

implement the 2008 Pb NAAQS, 

primarily in the discussion of section 

110(a)(2)(A) above. 

With respect to adequacy of resources, 

NMED asserts that it has adequate 

personnel to implement the SIP. The 

infrastructure SIP submission for the 

2008 Pb NAAQS describes the 

regulations governing the various 

functions of personnel within the Air 

Quality Bureau, including the 

administrative, technical support, 

planning, enforcement, and permitting 

functions of the program. 

With respect to funding, the Air 

Quality Control Act at NMSA 1978, 

section 74–2–7 requires NMED to 

establish an emissions fee schedule for 

sources in order to fund the reasonable 

costs of administering various air 

pollution control programs and also 

authorizes NMED to collect additional 

fees necessary to cover reasonable costs 

associated with processing of air permit 

applications. The Air Quality Control 

Act provides for the deposit of the fees 

into various subaccounts (e.g., the 

State’s air quality permit fund for the 

Title V operating permit program used 

for Title V implementation activities; 

and various subaccounts for local air 

quality agencies). NMED also receives 

funding from general revenue funds and 

EPA grants under, for example, sections 

103 and 105 of the CAA, to finance air 

quality programs. EPA conducts 

periodic program reviews to ensure that 

the State has adequate resources and 

funding to, among other things, 

implement the SIP. 

With respect to authority, the Air 

Quality Control Act at NMSA 1978, 

section 74–2–5 provides the authority 

necessary to carry out the SIP 

requirements as referenced above in 

element A. The Air Quality Control Act 

provides the NMED with broad legal 

authority to adopt emission standards 

and compliance schedules applicable to 

regulated entities, and to adopt emission 

standards and limitations and any other 

measures necessary for attainment and 

maintenance of national standards. The 

Act also provides the board adequate 

legal authority to enforce applicable 

laws, regulations, standards, and 

compliance schedules, and seek 

injunctive relief. In addition, section 

74–2–5.1 of the Act provides the 

department legal authority to enforce 

applicable laws, regulations, standards, 

and compliance schedules. 

With regard to the conflict of interest 

provisions of section 128 of the CAA, 

section 110(a)(2)(E)(ii) requires that each 

state SIP meet the requirements of 

section 128, relating to representation 

on state boards and conflicts of interest 

by members of such boards. Section 

128(a)(1) requires that any board or 

body which approves permits or 

enforcement orders under the CAA must 

have at least a majority of members who 

represent the public interest and do not 

derive any ‘‘significant portion’’ of their 

income from persons subject to permits 

and enforcement orders under the CAA. 

Section 128(a)(2) requires that members 

of such a board or body, or the head of 

an agency with similar powers, 

adequately disclose any potential 

conflicts of interest. 

The Environmental Improvement Act 

at NMSA 1978, section 74–1–4 provides 

that the Environmental Improvement 

Board contain at least a majority of 

members who represent the public 

interest and do not derive any 

significant portion of their income from 

persons subject to or who appear before 

the board on issues related to the Clean 

Air Act or Air Quality Control Act. 

Furthermore, pursuant to State 

regulations adopted by the Board, Board 

members are required to recuse 

themselves from rule-makings in which 

their impartiality may reasonably be 

questioned. (see 20.1.1.111 NMAC). 

With respect to assurances that the 

State has responsibility to implement 

the SIP adequately when it authorizes 

local or other agencies to carry out 

portions of the plan, the Environmental 

Improvement Act and the Air Quality 

Control Act designate the NMED as the 

primary air pollution control agency 

‘‘for all purposes’’ of implementing the 

requirements of the federal Clean Air 

Act and the New Mexico Air Quality 

Control Act. 

There is one local air quality control 

agency that assumes jurisdiction for 

local administration and enforcement of 

the Air Quality Control Act in New 

Mexico, the Albuquerque/Bernalillo 

County Air Quality Control Board, as 

authorized by NMSA 1978, section 74– 

2–4. Pursuant to the New Mexico Air 

Quality Control Act, the local air quality 

control agency, within the boundaries of 

the Albuquerque/Bernalillo County 

area, is delegated all those functions 

delegated to the Environmental 

Improvement Board, with the exception 

of any functions reserved exclusively for 

the Environmental Improvement Board, 

NMSA 1978, section 74–2–4(A)(1). 

Further, The Air Quality Control Act, 

grants the local air quality control 

agency, within the boundaries of the 

Albuquerque/Bernalillo County area, 

the authority to perform all the duties 

required of NMED and exert all of the 

powers granted to NMED, except for 

those powers and duties reserved 

exclusively for the department, NMSA 

1978, section 74–2–4(A)(2). However, 

the NMED and the State Environmental 

Improvement Board retain oversight 

authority in the event the local authority 

fails to act. EPA conducts reviews of the 

local program activities in conjunction 

with its oversight of the State program. 

Based upon review of the State’s 

infrastructure SIP submission for the 

2008 Pb NAAQS and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in New Mexico’s SIP, EPA 

believes that New Mexico has the 

adequate infrastructure needed to 

address section 110(a)(2)(E) for the 2008 

Pb NAAQS and is proposing to approve 

this element of the September 9, 2011 

submission. 


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F. Stationary Source Monitoring System 

The CAA section 110(a)(2)(F) requires 

states to establish a system to monitor 

emissions from stationary sources and 

to submit periodic emission reports. 

Each SIP shall require the installation, 

maintenance, and replacement of 

equipment, and the implementation of 

other necessary steps, by owners or 

operators of stationary sources, to 

monitor emissions from such sources. 

The SIP shall also require periodic 

reports on the nature and amounts of 

emissions and emissions-related data 

from such sources, and requires that the 

state correlate the source reports with 

emission limitations or standards 

established under the CAA. These 

reports must be made available for 

public inspection at reasonable times. 

To address this element, the Air 

Quality Control Act at NMSA 1978, 

section 4–2–5 authorizes the NMED to 

require persons engaged in operations 

which result in air pollution to monitor 

or test emissions and to file reports 

containing information relating to the 

nature and amount of emissions. State 

regulations pertaining to sampling and 

testing are codified at 20.2.72 NMAC 

Construction Permits, 20.2.70 NMAC 

Operating Permits, and 20.2.79 NMAC 

Permits—Nonattainment Areas, and 

requirements for reporting of emissions 

inventories are codified at 20.2.73 

NMAC Notice of Intent and Emission 

Inventory Requirements. In addition, 

rules at 20.2.5 NMAC Source 

Surveillance, establish general 

requirements for maintaining records 

and reporting emissions. 

The NMED uses this information, in 

addition to information obtained from 

other sources, to track progress towards 

maintaining the NAAQS, developing 

control and maintenance strategies, 

identifying sources and general 

emission levels, and determining 

compliance with emission regulations 

and additional EPA requirements. 

NMED makes this information available 

to the public (20.2.5 NMAC Source 

Surveillance). Provisions concerning the 

handling of confidential data and 

proprietary business information are 

included in the general provisions 

regulations at 20.2.1.115 NMAC, 

Confidential Business Information. 

These rules specifically exclude from 

confidential treatment any records 

concerning the nature and amount of 

emissions reported by sources. 

Based upon review of the State’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in New Mexico’s SIP, EPA 

believes that New Mexico has the 

adequate infrastructure needed to 

address CAA section 110(a)(2)(F) for the 

2008 Pb NAAQS and is proposing to 

approve this element of the September 

9, 2011, submission. 

G. Emergency Authority 

The CAA section 110(a)(2)(G) requires 

SIPs to provide for authority to address 

activities causing imminent and 

substantial endangerment to public 

health or welfare or the environment 

(comparable to the authorities provided 

in section 303 of the CAA), and to 

include contingency plans to implement 

such authorities as necessary. 

In its submittal for the 2008 Pb 

NAAQS, the State of New Mexico 

emphasizes that there are currently no 

significant sources of Pb emissions 

within the State or in close enough 

proximity to the State borders that 

would have the potential to impact 

communities in New Mexico. 

Nevertheless, the State indicates that the 

Air Quality Control Act provides 

adequate authority to constrain any 

sources of Pb emissions, as necessary, in 

the unlikely event that an emergency 

situation should arise. Under the Air 

Quality Control Act at NMSA 1978, 

section 74–2–10, Emergency Powers of 

the Secretary and the Director, the 

Secretary and Director of NMED are 

empowered to bring suit to immediately 

restrain a facility causing emissions that 

present an imminent and substantial 

endangerment to public health, welfare, 

or the environment. Alternatively, the 

Air Quality Control Act authorizes the 

NMED Secretary and Director to issue 

orders necessary to protect the public 

health or welfare, or the environment, 

and then bring suit against contributing 

sources within 24 hours. If the NMED 

brings an action within that time, the 

order is effective for another 48 hours or 

for such longer period as may be 

authorized by the court pending 

litigation. 

Based upon review of the State’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in that 

submission or referenced in New 

Mexico’s SIP, EPA believes that the New 

Mexico SIP adequately addresses 

section 110(a)(2)(G) for the 2008 Pb 

NAAQS and is proposing to approve 

this element of the September 9, 2011, 

submission. 

H. Future SIP Revisions 

The CAA section 110(a)(2)(H) requires 

states to have the authority to revise 

their SIPs in response to changes in the 

NAAQS, availability of improved 

methods for attaining the NAAQS, or in 

response to an EPA finding that the SIP 

is substantially inadequate to attain the 

NAAQS. 

New Mexico’s Environmental 

Improvement Act and Air Quality 

Control Act authorize the NMED as the 

primary agency in the State concerned 

with environmental protection and 

enforcement of regulations, including 

but not limited to air quality (see NMSA 

1978, sections 74–1 and 74–2). The Air 

Quality Control Act gives the NMED the 

authority to ‘‘develop and present to the 

Environmental Improvement Board a 

plan for the control, regulation, 

prevention or abatement of air pollution 

. . . ,’’ and authorizes the EIB to adopt 

such a plan (see NMSA 1978, sections 

74–2–5.1(H) and 74–2–5(B)(2)). The 

Environmental Improvement Act also 

authorizes the New Mexico EIB to 

‘‘adopt, promulgate, publish, amend and 

repeal regulations consistent with the 

Air Quality Control Act to attain and 

maintain the national ambient air 

quality standards and prevent and abate 

air pollution . . .’’ and the 

Environmental Improvement Act 

authorizes the NMED to enforce such 

rules, regulations and orders 

promulgated by the EIB (see NMSA 

1978, sections 74–2–5(B)(1) and 74–1– 

6(F)). Furthermore, 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, section 74–2–5.2(B)). 

Thus, New Mexico has the authority 

to revise its SIP, as necessary, to account 

for revisions of the NAAQS, to adopt 

more effective methods of attaining the 

NAAQS, and to respond to EPA SIP 

calls. Based upon review of the State’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in New Mexico’s SIP, EPA 

believes that New Mexico has adequate 

authority to address section 110(a)(2)(H) 

for the 2008 Pb NAAQS and is 

proposing to approve this element of the 

September 9, 2011, submission. 

I. Nonattainment Areas 

The CAA section 110(a)(2)(I) requires 

that in the case of a plan or plan 

revision for areas designated as 

nonattainment areas, states must meet 

applicable requirements of part D of the 

CAA, relating to SIP requirements for 

designated nonattainment areas. 

As noted earlier, EPA does not expect 

infrastructure SIP submissions to 


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27See http://www.nmenv.state.nm.us/aqb/

monitor/airmonitoringnetwork.html. 

address subsection (I). The specific SIP 

submissions for designated 

nonattainment areas, as required under 

CAA title I, part D, are subject to 

different submission schedules than 

those for section 110 infrastructure 

elements. Instead, EPA will take action 

on part D attainment plan SIP 

submissions through a separate 

rulemaking process governed by the 

requirements for nonattainment areas, 

as described in part D. 

J. Consultation With Government 

Officials, Public Notification, PSD and 

Visibility Protection 

The CAA section 110(a)(2)(J) requires 

SIPs to meet the applicable 

requirements of the following CAA 

provisions: (1) Section 121, relating to 

interagency consultation regarding 

certain CAA requirements; (2) section 

127, relating to public notification of 

NAAQS exceedances and related issues; 

and (3) part C of the CAA, relating to 

prevention of significant deterioration of 

air quality and visibility protection. 

(1) With respect to interagency 

consultation, the SIP should provide a 

process for consultation with generalpurpose local governments, designated 

organizations of elected officials of local 

governments, and any Federal Land 

Manager having authority over Federal 

land to which the SIP applies. New 

Mexico’s 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 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, sections 

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, section 74–2–5.2(B)). 

Furthermore, New Mexico’s 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, tribal authorities, and 

Federal Land Managers (FLMs) whose 

lands may be affected by emissions from 

the source or modification. 

Additionally, the State’s PSD rules at 

20.2.74.403 NMAC require the NMED to 

consult with FLMs regarding permit 

applications for sources with the 

potential to impact Class I Federal Areas 

(75 FR 72688 and 72 FR 50879). Finally, 

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 the State recognizes the 

expertise of the FLMs in monitoring and 

new source review applicability 

analyses for visibility and has agreed to 

notify the FMLs of any advance 

notification or early consultation with a 

major new or modifying source prior to 

the submission of the permit application 

(71 FR 4490). The State’s Transportation 

Conformity rules at 20.2.99.116 through 

20.2.99.124 NMAC provide procedures 

for interagency consultation, resolution 

of conflicts, and public notification (65 

FR 14873 and 75 FR 21169). 

(2) With respect to the requirements 

for public notification in section 127, 

the infrastructure SIP should provide 

citations to regulations in the SIP 

requiring the air agency to regularly 

notify the public of instances or areas in 

which any NAAQS are exceeded; advise 

the public of the health hazard 

associated with such exceedances; and 

enhance public awareness of measures 

that can prevent such exceedances and 

of ways in which the public can 

participate in the regulatory and other 

efforts to improve air quality. Provisions 

regarding public notification of 

instances or areas in which any primary 

NAAQS was exceeded were approved 

into the New Mexico SIP on August 24, 

1983 (48 FR 38466). In addition, as 

discussed for infrastructure element B 

above, the NMED air monitoring Web 

site provides live air quality data for 

each of the monitoring stations in New 

Mexico.27 The Web site also provides 

information on the health effects of 

ozone, particulate matter, and other 

criteria pollutants. Because no 

significant sources of Pb emissions are 

located within the State or in proximity 

to its borders, we do not anticipate that 

any circumstances of short-term 

exceedances or violations of the 2008 Pb 

NAAQS will occur in New Mexico. 

(3) Regarding the applicable 

requirements of part C of the CAA, 

relating to prevention of significant 

deterioration of air quality and visibility 

protection, as noted above under 

infrastructure element C, the New 

Mexico SIP meets the PSD 

requirements. With respect to the 

visibility component of section 

110(a)(2)(J), EPA recognizes that states 

are subject to visibility and regional 

haze program requirements under part C 

of the CAA, which includes sections 

169A and 169B. However, when EPA 

establishes or revises a NAAQS, these 

visibility and regional haze 

requirements under part C do not 

change. Therefore, EPA believes that 

there are no new visibility protection 

requirements under part C as a result of 

a revised NAAQS, and consequently 

there are no newly applicable visibility 

protection obligations pursuant to 

infrastructure element J after the 

promulgation of a new or revised 

NAAQS. 

Based upon review of the State’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in New Mexico’s SIP, EPA 

believes that New Mexico has met the 

applicable requirements of section 

110(a)(2)(J) for the 2008 Pb NAAQS in 

the State and is therefore proposing to 

approve this element of the September 

9, 2011, submission. 

K. Air Quality and Modeling/Data 

The CAA section 110(a)(2)(K) requires 

that SIPs provide for performing air 

quality modeling, as prescribed by EPA, 

to predict the effects on ambient air 

quality of any emissions of any NAAQS 

pollutant, and for submission of such 

data to EPA upon request. 

The NMED has the power and duty, 

under the Air Quality Control Act to 

‘‘develop facts and make investigations 

and studies,’’ thereby providing for the 

functions of environmental air quality 

assessment (see NMSA 1978, section 

74–2–5). Past modeling and emissions 

reductions measures have been 

submitted by the State and approved 

into the SIP. For example, the air 

modeling and control measures 

submitted within the attainment 

demonstration for the San Juan County 

Early Action Compact Area, approved 

by EPA and adopted into the SIP on 

August 17, 2005 (70 FR 48285). 

Additionally, New Mexico has the 

ability to perform modeling for the 

primary and secondary PM2.5 standards 

and other criteria pollutant NAAQS on 

a case-by-case permit basis consistent 

with their SIP-approved PSD rules and 

with EPA protocols on Air Quality 

Models at 40 CFR part 51, Appendix W. 

This section of the CAA also requires 

that a SIP provide for the submission of 

data related to such air quality modeling 

to the EPA upon request. The New 

Mexico Air Quality Control Act 

authorizes and requires NMED to 


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28See Environmental Improvement Act, 

Paragraph 4 of Subsection A of Section 74–1–8 

NMSA 1978, and Air Quality Control Act, Chapter 

74, Article 2 NMSA 1978, including specifically, 

Paragraph 6 of Subsection B of Section 74–2–7 

NMSA 1978. 

29As indicated in New Mexico’s 2008 Pb 

infrastructure SIP submission, NEMD’s operating 

permit fees regulation was inadvertently adopted 

into the SIP by EPA on November 25, 1997 (62 FR 

50514). This regulation was removed from the SIP 

by EPA in a subsequent action on July 15, 2011 (76 

FR 41698). 

cooperate with the federal government 

and local authorities in regard to matters 

of common interest in the field of air 

quality control, thereby allowing the 

agency to make such submissions to the 

EPA (see NMSA 1978, section 74–2– 

5.2(B)). 

Based upon review of the State’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in New Mexico’s SIP, EPA 

believes that New Mexico has the 

adequate infrastructure needed to 

address section 110(a)(2)(K) for the 2008 

Pb NAAQS and is proposing to approve 

this element of the September 9, 2011, 

submission. 

L. Permitting Fees 

The CAA section 110(a)(2)(L) requires 

SIPs to require each major stationary 

source to pay permitting fees to the 

permitting authority, as a condition of 

any permit required under the CAA, to 

cover the cost of reviewing and acting 

upon any application for such a permit, 

and, if the permit is issued, the costs of 

implementing and enforcing the terms 

of the permit. The fee requirement 

applies until a fee program established 

by the state pursuant to Title V of the 

CAA, relating to operating permits, is 

approved by EPA. 

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.28 New Mexico’s 

fee schedule for construction permits is 

codified at 20.2.75 NMAC, Construction 

Permit Fees. These regulations 

implement a fee schedule for all 

preconstruction air permits issued by 

NMED and were approved by EPA into 

the SIP on September 16, 1991 (56 FR 

32511) and November 25, 1997 (62 FR 

50514). 

In addition to preconstruction fees, 

New Mexico also requires major sources 

subject to the federal Title V operating 

permit program to pay annual operating 

permit fees. This operating permit fee 

schedule is codified at 20.2.71 NMAC, 

Operating Permit Emission Fees. Title V 

operating permit programs 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 

(see 40 CFR part 70, Appendix A).29

EPA reviews the New Mexico Title V 

program, including Title V fee structure, 

separately from this proposed action. 

Because the Title V program and 

associated fees legally are not part of the 

SIP, the infrastructure SIP action we are 

proposing today does not preclude EPA 

from taking future action regarding New 

Mexico’s Title V permitting program 

and associated fees. 

Based upon review of the State’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in New Mexico’s SIP, EPA 

believes that the requirements of section 

110(a)(2)(L) are met and is proposing to 

approve this element of the September 

9, 2011, submission. 

M. Consultation/Participation by 

Affected Local Entities 

The CAA section 110(a)(2)(M) 

requires SIPs to provide for consultation 

and participation by local political 

subdivisions affected by the SIP. 

As described under the section 

addressing the requirements of element 

110(a)(2)(J) above, regarding 

consultation with government officials 

and public notification, New Mexico’s 

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, section 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, 

section 74–2–5.2(B)). The Act also 

requires initiation of cooperative action 

between local authorities and the 

NMED, between one local authority and 

another, or among any combination of 

local authorities and the NMED for 

control of air pollution in areas having 

related air pollution problems that 

overlap the boundaries of political 

subdivisions; and entering into 

agreements and compacts with 

adjoining states and Indian tribes, where 

appropriate. NMED has a long history of 

successful cooperation with the local air 

quality authority in Albuquerque/

Bernalillo County and tribal 

governments. 

With regard to permitting actions, 

New Mexico’s PSD regulations at 

20.2.74.400 NMAC, approved into the 

SIP on March 30, 1987 (52 FR 5964) and 

December 16, 1996 (61 FR 53642), 

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 

whose lands may be affected by 

emissions from the source or 

modification. New Mexico’s 

Transportation Conformity regulations 

at 20.2.99.116 and 20.2.99.124 NMAC, 

both approved into the SIP on April 23, 

2010 (75 FR 21169), 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. 

Based upon review of the State’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in New Mexico’s SIP, EPA 

believes that New Mexico has the 

adequate infrastructure needed to 

address section 110(a)(2)(M) for the 

2008 Pb NAAQS and is proposing to 

approve this element of the September 

9, 2011 submission. 

V. EPA’s Evaluation of New Mexico’s 

SIP Revision Repealing the Cement 

Kilns Rule 

A. What is EPA’s evaluation of the 

submittal? 

As a part of NMED’s initiative to 

enhance and stream line its permitting 

process a State report entitled 

‘‘Improving Environmental Permitting’’ 

recommended repeal of NMAC 

20.2.12—Cement Kilns. There are no 

cement kilns in NMED’s jurisdictional 

area. There is a cement plant in New 

Mexico, but that plant is located in 

Bernalillo County, New Mexico which 

is not within NMED’s area of 

jurisdiction. The current EPA-approved 

NMAC 20.2.12—Cement Kilns rule only 

regulates PM emissions from a kiln 

measured in terms of mass per volume 


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73524 Federal Register / Vol. 79, No. 238 / Thursday, December 11, 2014 / Proposed Rules 

of exhaust gas (230 mg/m3). See section 

108 of the repealed rule in the Technical 

Support Document (20.2.12.108 NMAC). 

Demonstrating compliance with this 

emission limit is less practical than 

demonstrating compliance with the 

comparable New Source Performance 

Standard (NSPS) because it is not 

clinker-production based, and it also 

lacks utility because no such source 

exists in NMED’s area of jurisdiction. In 

other words, the current EPA-approved 

NMAC 20.2.12—Cement Kilns rule is 

outdated in format and superfluous. 

Should a cement kiln locate within 

NMED’s jurisdiction in the future, that 

source will be subject to new source 

review and New Source Performance 

Standard (NSPS) requirements. See 40 

CFR 60, Subpart F. In addition, 

hazardous air pollutants from a cement 

kiln would be subject to National 

Emission Standards for Hazardous Air 

Pollutants (NESHAP), contained in 40 

CFR 61; and Maximum Achievable 

Control Technology (MACT) standards 

contained in 40 CFR 63. See appendix 

A of the Technical Support Document 

prepared in conjunction with this 

rulemaking action. These emission 

standards and control requirements are 

more current, practical, and stringent 

than the existing NMAC 20.2.12— 

Cement Kilns rule emission limitation. 

B. Does this submittal comply with 

section 110(l) of the Act? 

Section 110(l) of the Act requires that 

a SIP revision submitted to EPA be 

adopted after reasonable notice and 

public hearing. Section 110(l) also 

requires that we not approve a SIP 

revision if the revision would interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress, or any other applicable 

requirement of the CAA. Records 

contained in the submittal show that 

State has complied with public hearing 

and reasonable notice requirements of 

the SIP. See Exhibit 9 of the submittal. 

Furthermore; in support of its 

submittal to repeal NMAC 20.2.12— 

Cement Kilns rule the State provides the 

following factors: (a) Repeal of NMAC 

20.2.12—Cement Kilns rule will benefit 

the State by removing potentially 

confusing and ambiguous provisions 

from the SIP and air permitting process; 

(b) the emission limits in NMAC 

20.2.12—Cement Kilns rule are based on 

mass of particulate matter in the volume 

of stack gas, whereas, the NSPS 

emission limits are based on mass of PM 

per ton of clinker produced; (c) in 

addition to limiting emissions from the 

cement kilns, the NSPS limits emissions 

from the grinding, cooling and materials 

handling operations in the cement 

manufacturing process; (d) the method 

for demonstrating compliance with the 

PM emission limitation in section 

NMAC 20.2.12.108 is more complex and 

difficult than the corresponding NSPS 

requires; (e) currently, there are no 

cement manufacturing facilities under 

the jurisdiction of the NMED, and they 

do not anticipate any new kilns to be 

built in the near future (negative 

declaration). New Mexico substantiated 

this factor through consultation with the 

Air Quality Bureau’s permitting staff, 

searching its database of facilities, the 

United States Geological Survey, and 

trade publications. See Exhibit 8 of the 

submittal. 

In the unlikely event of a new cement 

plant locating in the area, then that 

source will be subject to existing, more 

stringent, appropriate federal 

requirements. 

We have reviewed the above factors, 

and agree with the State’s 

determination. The repeal of NMAC 

20.2.12—Cement Kilns rule does not 

result in an increase in the amount of 

PM emissions. We are proposing a 

finding that section 110(l) has been 

complied with because there will be no 

SIP relaxation. Therefore, we are 

proposing to approve repeal of NMAC 

20.2.12—Cement Kilns rule from the 

New Mexico SIP. 

VI. Proposed Action 

EPA is proposing to fully approve the 

September 9, 2011, infrastructure SIP 

submission from New Mexico, which 

addresses the requirements of CAA 

sections 110(a)(1) and (2) as applicable 

to the 2008 Pb NAAQS. Specifically, 

EPA is proposing to approve the 

following infrastructure elements, or 

portions thereof: Sections 110(a)(2)(A), 

(B), (C), (D)(i)(I), (D)(i)(II), (D)(ii), (E), (F), 

(G), (H), (J), (K), (L), and (M). As 

discussed in applicable sections of this 

rulemaking, EPA is not proposing action 

on section 110(a)(2)(I)—Nonattainment 

Area Plan or Plan Revisions Under Part 

D, nor on the visibility protection 

portion of section 110(a)(2)(J). Based 

upon review of the State’s infrastructure 

SIP submission and relevant statutory 

and regulatory authorities and 

provisions referenced in this submission 

or referenced in New Mexico’s SIP, EPA 

believes that New Mexico has the 

infrastructure in place to address all 

applicable required elements of sections 

110(a)(1) and (2) (except otherwise 

noted) to ensure that the 2008 Pb 

NAAQS are implemented in the State. 

We are hereby soliciting comment on 

this proposed action. Final rulemaking 

will occur after consideration of any 

comments. 

Additionally, we are proposing to 

approve the July 31, 2014, SIP revision 

repealing New Mexico Administrative 

Code (NMAC), Title 20 Environmental 

Protection, Chapter 2 Air Quality 

(Statewide), Part 12 Cement Kilns 

(NMAC 20.2.12—Cement Kilns) rule 

from the New Mexico SIP. 

VII. 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 CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 


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Federal Register / Vol. 79, No. 238 / Thursday, December 11, 2014 / Proposed Rules 73525 

EPA is not proposing to approve this 

infrastructure SIP certification and 

repeal of the cement kilns rule to apply 

on any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, this proposed approval does 

not have tribal implications as specified 

by Executive Order 13175 (65 FR 67249, 

November 9, 2000), nor will it impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Lead, and Reporting and recordkeeping 

requirements. 

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

Dated: November 24, 2014. 

Ron Curry, 

Regional Administrator, Region 6. 

[FR Doc. 2014–29091 Filed 12–10–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[Docket #: EPA–R10–OAR–2014–0808; 

FRL–9919–88–Region 10] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Washington; Redesignation to 

Attainment for the Tacoma-Pierce 

County Nonattainment Area and 

Approval of Associated Maintenance 

Plan for the 2006 24-Hour Fine 

Particulate Matter Standard 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to 

redesignate to attainment the entire 

Tacoma-Pierce County nonattainment 

area (hereafter ‘‘the Tacoma area’’ or 

‘‘the area’’) for the 2006 24-hour fine 

particulate matter (PM2.5) national 

ambient air quality standard (NAAQS). 

The EPA is also proposing to approve as 

a revision to the Washington State 

Implementation Plan (SIP), the 

associated maintenance plan that 

provides for continued compliance of 

the 2006 24-hour PM2.5 NAAQS. 

Additionally, the EPA is proposing to 

approve the 2017 and 2026 motor 

vehicle emissions budgets included in 

Washington’s maintenance plan for 

PM2.5 and nitrogen oxides (NOX). In the 

course of proposing to approve 

redesignation of the Tacoma area, the 

EPA addresses a number of additional 

issues, including the effects of a January 

4, 2013 decision by the United States 

Court of Appeals for the District of 

Columbia (D.C. Circuit or Court) to 

remand to the EPA two final rules 

implementing the 1997 PM2.5 NAAQS. 

DATES: Comments must be received on 

or before January 12, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R10– 

OAR–2014–0808, by any of the 

following methods: 

A. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

B. Mail: Jeff Hunt, EPA Region 10, 

Office of Air, Waste and Toxics (AWT– 

107), 1200 Sixth Avenue, Suite 900, 

Seattle, WA 98101. 

C. Email: R10-Public_Comments@

epa.gov. 

D. Hand Delivery: EPA Region 10 

Mailroom, 9th Floor, 1200 Sixth 

Avenue, Suite 900, Seattle, WA 98101. 

Attention: Jeff Hunt, Office of Air, Waste 

and Toxics, AWT–107. Such deliveries 

are only accepted during normal hours 

of operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R10–OAR–2014– 

0808. The 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 

the disclosure of which 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 the 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 the 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, the 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 the EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

the 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. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information the disclosure of which is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy during normal business 

hours at the Office of Air, Waste and 

Toxics, EPA Region 10, 1200 Sixth 

Avenue, Seattle, WA 98101. 

FOR FURTHER INFORMATION CONTACT: Jeff 

Hunt at (206) 553–0256, hunt.jeff@

epa.gov, or by using the above EPA, 

Region 10 address. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we’’, ‘‘us’’ or ‘‘our’’ are used, it is 

intended to refer to the EPA. 

Table of Contents 

I. Background 

II. The EPA’s Requirements 

A. Criteria for Redesignation to Attainment 

B. Requirements of a Maintenance Plan 

C. How have tribal governments been 

involved in this process? 

III. Summary of Proposed Actions 

IV. Effect of the January 4, 2013 D.C. Circuit 

Decision Regarding PM2.5

Implementation Under Subpart 4 

A. Background 

B. Proposal on This Issue 

V. The EPA’s Analysis of Washington’s 

Submittal 

A. Redesignation Request 

B. Maintenance Plan 

C. Motor Vehicle Emissions Budgets 

VI. Proposed Actions 

VII. Statutory and Executive Order Reviews 

I. Background 

The first air quality standards for 

PM2.5 were established on July 16, 1997 

(62 FR 38652, July 18, 1997). The EPA 

promulgated an annual standard at a 

level of 15 micrograms per cubic meter 

(mg/m3), based on a three-year average of 

annual mean PM2.5 concentrations (the 

1997 annual PM2.5 standard). In the 

same rulemaking action, the EPA 

promulgated a 24-hour standard of 65 

mg/m3, based on a three-year average of 

the 98th percentile of 24-hour 

concentrations. On October 17, 2006 (71 

FR 61144), the EPA retained the annual 

average standard at 15 mg/m3, but 

revised the 24-hour standard to 35 mg/ 

m3, based again on the three-year 

average of the 98th percentile of 24-hour 


tkelley on DSK3SPTVN1PROD with PROPOSALS