Bill Richardson

Governor

. ','.. 11 ~~.t. G

:;\;~:-V\:::,u\;{\.i(St~fe of New Mexico .,. Office ofthe Governor

May 2, 2007

Mayor Richard Greene

Regional Administrator

u.s. Environmental Protection Agency, Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

Dear Mayor Greene:

On behalf ofthe New Mexico Environment Department, I am pleased to submit to the

Environmental Protection Agency the enclosed amendment to the New Mexico State

Implementation Plan (SIP). This amendment includes revisions to the Sunland Park Ozone

Nonattainment Area SIP. The hearing record for this SIP revision is attached, which includes the

hearing transcript, exhibits, public notices, affidavits ofpublication, notice ofintent to testify,

and public comments.

Ifthere are any questions concerning this SIP submittal, please contact Mary UbI, Air

Quality Bureau Chief, at (505) 827-8086.

Sincerely,

Bill Richardson

Governor ofNew Mexico

BR/mw

Enclosures

Cc; AJan Shar, EPA Region 6

flom Diggs, EPA Region 6

Ron Curry, NMED, Cabinet Secretary

Jim, Norton, NMED, Environmental Protection Division Director

Mary UbI, NMED, Air Quality Bureau Chief

State Capitol • Room 400 • Santa Fe, New Mexico 87501 • 505-476-2200 • www.govemor.state.nm.us
NOTICE OF INTENT TO PRESENT TECHNICAL

TESTIMONY
STATE OF NEW MEXICO

ENVIRONMENTAL IMPROVEMENT BOARD

IN THE MATTER OF THE PROPOSED STATE

IMPLEMENTATION MAINTENANCE PLAN FOR

THE SUNLAND PARK NATIONAL AMBIENT

AIR QUALITY STANDARD I-HOUROZONE

NONATTAINMENT AREA IN THE MATTER

OF PROPOSED AMENDMENTS

NEW MEXICO ENVIRONMENT DEPARTMENT

NOTICE OF INTENT TO PRESENT TECHNICAL TESTIMONY

Pursuant to 20.1.1.302.A NMAC, The New Mexico Environment Department (NMED)

Environmental Protection Division ("the Division") hereby submits its Notice ofIntent to present

technical testimony in this proceeding.

1. The person for whom the witnesses will testify.

( The New Mexico Environment Department, Environmental Protection Division.

2. The name and qualifications of each technical witness.

Gail Cooke. Ms. Cooke is a Supervisor in the Control Strategies Section ofthe Air

Quality Bureau. She has worked in the Air Quality Bureau since June 1999. Ms. Cooke holds a

bachelor degree in Environmental Design from Texas A&M University and a master degree in

Urban and Regional Planning from Virginia Tech.

3. Summary and Estimated Duration of Testimony

Ms. Cooke's written testimony is attached as NMED Exhibit 1. Ms. Cooke will testify

that a state implementation maintenance plan for the Sunland Park I-hour ozone nonattainment

area should be adopted. Sunland Park was redesignated to attainment for the new 8-hour ozone

National Ambient Air Quality Standard (NAAQS) on June 15,2004 by the U.S Environmental

Protection Agency (EPA). To ensure th~t Sunland Park will continue to maintain the 8-hour

Notice ofIntent Page 1 of 3
/-...,

,. , ..([ (' ,I

\~~:~~;-l ,\' / , \

oz'<lme Ji'JAAQS, EPA has required that the State ofNew Mexico submit a maintenance plan for

the Sunland Park area by June 15,2007. The Divisionls'proposed maintenance plan (attached as

~D Exhibit 2) complies with the requirements ofthe federal Clean Air Act for maintenance

plans and should be approved by the Board for submittal to the U.S. Environmental Protection

Agency.

Ms. Cooke's testimony is anticipated to take 30 minutes.

4. Text of Recommended Modifications to the Proposed Regulatory Change

The Division recommends the Sunland Park Maintenance Plan as proposed in the petition

ofJanuary 2, 2007.

5. List and Description of Exhibits

The Division submits the following exhibits:

Exhibit Number

NMED 1

NMED2

NMED3

NMED4

NMED5

NMED6

Title ofExhibit

Written Testimony of Gail Cooke

Sunland Park Maintenance Plan

U.S. Environmental Protection Agency's Phase I Rule for the 8-Hour

Ozone Standard

U.S. Environmental Protection Agency's 1995 Nonattainment Designation

for Sunland Park

U.S. Environmental Protection Agency's Approval ofthe Sunland Park

Nonattainment State Implementation Plan

Notice of Public Meeting and Hearing

/

7. Reservation of Rights

This Notice of Intent to Present Technical Testimony is based on the Division's petition.

The Division reserves the right to call any person to testify and to present any exhibit in response

Notice ofIntent Page 2 of 3
r c.

(

to another notice ofintent or public comment filed in this matter or to any testimony or exhibit

offered at the public hearing. The Division also reserves the right to call any person as a rebuttal

witness and to present any exhibit in support thereof.

Respectfully submitted,

NEW MEXICO ENVIRONMENT DEPARTMENT

OFFICE OF GENERAL COUNSEL

Bill Grantham

Assistant General Counsel

New Mexico Environment Department

1190 St. Francis Drive

Santa Fe, New Mexico 87502-6110

Telephone (505)-827-2824

Facsimile (505) 827-1628

Notice ofIntent Page 3 of 3
EXHIBIT 1

TESTIMONY
COOKE TESTIMONY - PAGE 1 

STATE OF NEW MEXICO 

ENVIRONMENTAL IMPROVEMENT BOARD 

N THE MATTER OF THE PROPOSED STATE 

IMPLEMENTATION MAINTENANCE PLAN FOR 

THE SUNLAND PARK NATIONAL AMBIENT 

AIR QUALITY STANDARD 1-HOUROZONE 

NONATTAINMENT AREA EIB 06-18 (R) 

WRITTEN TESTIMONY OF GAIL COOKE

Witness Qualifications: 

Gail Cooke is a Supervisor in the Control Strategies Section of the Air Quality Bureau. 

She has worked in the Air Quality Bureau since June 1999. Ms. Cooke holds a bachelor 

degree in Environmental Design from Texas A&M University and a master degree in 

Urban and Regional Planning from Virginia Tech. 

I. INTRODUCTION 

Madame Hearing Officer, I am here to present testimony on the Department's proposed 

changes to the New Mexico State Implementation Plan (SIP) for the Sunland Park 1-

Hour Ozone Nonattainment Area. From now on, I will refer to this plan as the Sunland 

Park SIP. A copy of the proposed changes is included as NMED Exhibit 2 From now on, 

I will refer to these proposed changes as the Sunland Park Maintenance Plan. 

The federal requirement for the Sunland Park Maintenance Plan springs from the U.S. 

Environmental Protection Agency’s (EPA) transition from a National Ambient Air 

Quality Standard (NAAQS) for ozone, based on a one hour averaging time (“1 hour 

ozone”) to an ozone NAAQS based on an eight hour averaging time (“8 hour ozone”). 

On April 30, 2004, published the first phase of its final rule to implement the 8-Hour 

NAAQS, called the "phase 1 rule" (69 FR 23951), NMED Exhibit 3. At that same time, 

EPA also published 8-hour ozone designations for all areas of the country. For most 

areas, the 8-hour ozone designations became effective on June 15, 2004. The phase 1 rule 

provided that the 1-hour ozone NAAQS would no longer apply for an area one year 

following the effective date of the area's designation for the 8-hour ozone NAAQS. As 

part of this action, all areas that were in nonattainment for the 1-hour NAAQS, but in 

attainment for the new 8-hour NAAQS for ozone were re-designated to attainment status. 

To ensure that these areas would stay in compliance with the new 8-hour NAAQS all of 

the 1-hour ozone nonattainment areas were required to develop a maintenance plan that 

complies with the requirements of the federal Clean Act Section 110(a)(1). This plan is 
COOKE TESTIMONY - PAGE 2 

due within three years of the revocation of the 1-hour ozone NAAQS. This is referred to 

as an “anti-backsliding” provision by EPA. 

 Sunland Park is one of the few areas in United States that was nonattainment for the 

revoked 1-hour NAAQS, but in compliance with the new 8-hour NAAQS. New Mexico 

is therefore required to submit a maintenance plan for this area. The purpose of the 

Sunland Park Maintenance Plan is to outline what the current emissions are and how the 

area will comply with the new 8-hour ozone NAAQS. 

 

II. BACKGROUND 

 

A. Ground Level Ozone Pollution

Ozone is not emitted directly into the air, but is formed by gases called nitrogen oxides 

(NOx), volatile organic compounds (VOCs), and carbon monoxide (CO) that in the 

presence of heat and sunlight react to form ozone. Emissions from industrial facilities and 

electric utilities, motor vehicle exhaust, gasoline vapors, and chemical solvents are some 

of the major sources of NOx, VOC and CO. Ground-level ozone forms readily in the 

atmosphere, usually during the hot weather of summer months. 

EPA considers an area to be attainment for the 1-hour ozone NAAQS of 120 parts per 

billion (ppb) if the 1-hour exposure is not exceeded more than once per year, averaged 

over a three year period. For the 8-hour ozone NAAQS of 80 ppb, compliance is based 

on a three year average of the fourth highest ozone concentration at each monitor. 

B. Sunland Park Ozone Nonattainment Area

Sunland Park was officially designated as nonattainment for the 1-hour ozone NAAQS in 

a Federal Register announcement published June 12, 1995 (60 FR 30789), NMED 

Exhibit 4. Sunland Park was designated as a “marginal” nonattainment area, which is the 

lowest or least "serious" classification. When the 1995 base year inventory was 

conducted for Sunland Park, a total of 12 exceedances of the 1-hour ozone NAAQS had 

been documented. Ten of the 12 exceedances (83%) occurred during the months of 

August, September, and October. The three highest values occurred in August and 

September. Since 1997, there has been a stabilizing trend in Sunland Park. Between the 

years of 2000 and 2002 there was only one monitored level over the 1-hour ozone 

NAAQS. 

The Sunland Park Ozone Nonattainment area is located in southern Doña Ana County, 

New Mexico, and includes the communities, from south to north, of Sunland Park, Santa 

Teresa, and La, Union, New Mexico. The nonattainment area is approximately 42 square 

miles in area. This 42 square mile area represents only 1.10% of the countywide area 

(3804 sq. mi.). The area is largely rural with a small population and predominately 

agricultural land use along the Rio Grande, especially north of Santa Teresa. 
COOKE TESTIMONY - PAGE 3 

A SIP for the Sunland Park Ozone Nonattainment area was submitted to the EPA in 1997. 

The SIP for Sunland Park included a request for a NOx waiver. The requirements for a 

NOx waiver are found under Section 182(f) of the Clean Air Act (CAA), and provide that 

if it is determined by EPA that the overall net air quality benefits for an ozone 

nonattainment area will be achieved without the reduction of NOx emissions a waiver 

can be issued. The Sunland Park SIP and the NOx waiver were both approved by the 

EPA on February 8, 2002 (67 FR 6147)(NMED Exhibit 5). 

III. PROPOSED CHANGES TO THE SUNLAND PARK SIP 

 

As noted EPA published a final “phase 1” rule to implement the 8-hour ozone standard 

April 30, 2004, NMED Exhibit 3.1

 The “anti-backsliding” provisions in the phase 1 rule 

set forth specific requirements for areas that are designated attainment for the 8-hour 

ozone standard and that, at the time of the 8-hour designations, were either attainment 

areas with maintenance plans for the 1-hour ozone NAAQS, or nonattainment for the 1-

hour ozone NAAQS. Specifically, 40 CFR 51.905(a)(3) and (4) require these areas to 

submit a maintenance plan under section 110(a)(1) of the federal Clean Air Act. The 

maintenance plan must demonstrate maintenance out to 10 years after designation. The 

section 110(a)(1) maintenance plan must be submitted within 3 years after designation for 

the 8-hour ozone standard. The Sunland Park Maintenance Plan must be submitted to 

EPA by June 15, 2007. 

The Sunland Park Maintenance Plan complies with the requirements of CAA section 

110(a)(1). Section 110(a)(1) of the CAA does not explicitly state what is required for a 

maintenance plan, so EPA suggested using CAA section 175A, which states the 

requirements for a maintenance plan, as a guidance for states to use in developing their 

maintenance plans. 

The required components of a Maintenance Plan under CAA Section 175A includes: 

1. Attainment Inventory; 

2. Maintenance Demonstration; 

3. Monitoring Network; 

4. Verification of Continued Attainment; and 

5. Contingency Plan 

1. Attainment Inventory

The federal Clean Air Act requires that an emissions inventory be developed to identify 

the level of emissions in the nonattainment area that is compatible with attainment of the 

NAAQS. For the Sunland Park Ozone Nonattainment area, the attainment inventory uses 

a base year of 2002. The 2002 base year emission inventory is based on all actual 

emissions (area, point, mobile, and biogenic) for the ozone precursors NOx, CO, and 

 

1

 This rule was called the “phase 1” rule because it addressed only some of the issues related to 8-hour 

ozone implementation, including the relationship between the 1-hour and 8-hour standards. Other details 

of implementing the 8 hour standard were addressed later in a “phase 2”rule. 
COOKE TESTIMONY - PAGE 4 

VOC. Although NOx emissions were not required as part of the emissions inventory, due 

to the NOx waiver, the Department included it in the inventory to provide EPA with a 

complete ozone inventory for the area. The full emission inventory developed for the 

Sunland Park nonattainment area is provided in NMED Exhibit 2. 

2. Maintenance Demonstration

To demonstrate maintenance of the NAAQS for a nonattainment area, the CAA requires 

the state to either show that future emissions of a pollutant or its precursor will not 

exceed the attainment inventory developed for the area, or to provide modeling to show 

that future sources and emissions will not cause an exceedance of the NAAQS. 

Sunland Park, La Union and Santa Teresa are located along the border region of New 

Mexico and are adjacent to El Paso, Texas, and Ciudad Juarez, Mexico, or what is 

commonly referred to as the Paso del Norte Airshed. In today's proposal, it was 

determined that the sources in Sunland Park, Santa Teresa, and La Union are only 

contributing a small percentage (1.6%) of the CO, NOX and VOC emissions in the 

airshed. A majority of the emissions contributing to ground level ozone in the airshed are 

from the City of El Paso and Ciudad Juarez. 

Because only a small portion of the pollutants affecting the Sunland Park Ozone 

Nonattainment area are emitted within that area, it is not possible to demonstrate 

maintenance for the area based solely on control of emissions emitted within the Sunland 

Park area. As an alternative, the Department will demonstrate the continued maintenance 

of the 8-hour ozone NAAQS through the use of cooperative efforts with the State of 

Texas and with Mexico, as well as current permitting requirements for point sources 

within the nonattainment area. 

3. Monitoring Network

To verify compliance with the NAAQS for ozone once an area has been redesignated to 

attainment/maintenance, an appropriate air quality monitoring network needs to be 

maintained by the state. The monitoring network needs to be in accordance with 40 CFR 

Part 58. The Department will continue to use the current ozone monitoring network 

already established in the Sunland Park Ozone Nonattainment area to verify attainment of 

the NAAQS in the area. This monitoring network is in accordance with 40 CFR Part 58. 

4. Verification of Continued Maintenance

To guarantee that attainment will be continued in the future, the state is required to ensure 

that it has the legal authority to implement and enforce all air quality measures needed to 

attain and maintain the 8-hour NAAQS for ozone. There is only one major source of 

ozone precursors in the nonattainment area. The department has legal authority to enforce 

air quality regulations at this source and has issued it a permit with appropriate conditions 

to ensure compliance. The Department will also provide the EPA with an interim 

emissions inventory report for point, area, mobile and biogenic emissions of VOCs and 
COOKE TESTIMONY - PAGE 5 

CO in the Sunland Park Maintenance area, in order to identify any other emission sources 

that may require additional regulation. 

5. Contingency Plan

As a requirement of the federal Clean Air Act, a contingency plan must be developed to 

correct any violations of the ozone NAAQS in Sunland Park, Santa Teresa, and La Union 

after the area has been redesignated to attainment/maintenance status. The plan should be 

an enforceable part of the SIP and should ensure that the appropriate measures will be 

adopted in the event that the NAAQS are exceeded for ozone. 

New Mexico has very little to no control over a majority of the ozone precursor 

emissions in the Paso del Norte Airshed, thus making it difficult to provide contingency 

measures for any future violations of the 8-hour NAAQS in the Sunland Park 

Maintenance area. Although New Mexico has little control over the emissions within the 

airshed, education and outreach will be developed as a means of protecting public health 

if there are any future violations of the ozone NAAQS. New Mexico has developed a 

similar public awareness program for dust storms caused by high wind events under the 

Doña Ana County Natural Events Action Plan.

 
EXHIBIT 2

8-HoUR OZONE MAINTENANCE PLAN FOR THE

SUNLAND PARK, NEW MEXICO

NONATTAINMENT AREA
NMED Exhibit 2, “8-HOUR OZONE MAINTENANCE PLAN

FOR THE SUNLAND PARK, NEW MEXICO, NONATTAINMENT

AREA,” is in a separate document.
EXHIBIT 3

EPA 8-HoUR OZONE PHASE 1 RULE
Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23951 

PUERTO RICO—OZONE (8-HOUR STANDARD)—Continued 

Designated area 

Designation 

Date 1 Type 1 Type 

San Lorenzo Municipio 

San Sebastia ́ n Municipio 

Santa Isabel Municipio 

Toa Alta Municipio 

Toa Baja County 

Trujillo Alto Municipio 

Utuado Municipio 

Vega Alta Municipio 

Vega Baja Municipio 

Vieques Municipio 

Villalba Municipio 

Yabucoa Municipio 

Yauco Municipio 

Category/classification 

Date 

1 This date is June 15, 2004, unless otherwise noted. 

■ 57. In § 81.356, the table entitled § 81.356 Virgin Islands. 

‘‘Virgin Islands—Ozone (8-Hour * * * * * 

Standard)’’ is added to read as follows: 

VIRGIN ISLANDS—OZONE (8-HOUR STANDARD) 

Designated area 

Designation 

Date 1 Type 1 Type 

Statewide .............................................................................. .................... Unclassifiable/Attainment. 

St. Croix 

St. John 

St. Thomas 

Category/classification 

Date 

1 This date is June 15, 2004, unless otherwise noted. 

[FR Doc. 04–9152 Filed 4–29–04; 8:45 am] emissions reductions needed for 

BILLING CODE 6560–50–P attainment. We are issuing this rule so 

that States and Tribes will know how 

we plan to classify areas and transition 

ENVIRONMENTAL PROTECTION from implementation of the 1-hour 

AGENCY NAAQS to implementation of the 8-

hour NAAQS. The intended effect of the 40 CFR Parts 50, 51 and 81 rule is to provide certainty to States and 

[OAR 2003–0079, FRL–7651–7] Tribes regarding classifications for the 

8-hour NAAQS and their continued RIN 2060–AJ99 obligations with respect to existing 

Final Rule To Implement the 8-Hour requirements. This document is Phase 1 

Ozone National Ambient Air Quality of the program to implement the 8-hour 

Standard—Phase 1 ozone NAAQS. We plan to issue a 

second rule, Phase 2, within the next 

AGENCY: Environmental Protection several months which will address the 

Agency (EPA). remaining 8-hour implementation 

ACTION: Final rule. issues, e.g., requirements for reasonable 

further progress (RFP), requirements for 

SUMMARY: In this document, EPA is modeling and attainment 

taking final action on key elements of demonstrations, and requirements for 


the program to implement the 8-hour reasonably available control measures 


ozone national ambient air quality (RACM) and reasonably available 


standard (NAAQS or standard). This control technology (RACT).


final rule addresses the following topics: DATES: Effective Date: This rule is
 classifications for the 8-hour NAAQS; effective on June 15, 2004.
 revocation of the 1-hour NAAQS (i.e., 


when the 1-hour NAAQS will no longer ADDRESSES: The EPA has established a 


apply); how anti-backsliding principles docket for this action under Docket ID 


will ensure continued progress toward No. OAR–2003–0079. All documents in 


attainment of the 8-hour ozone NAAQS; the docket are listed in the EDOCKET 


attainment dates; and the timing of index at http://www.epa.gov/edocket.


Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

or other information whose disclosure 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 EDOCKET or in hard 

copy at the EPA Docket Center (Air 

Docket), EPA/DC, EPA West, Room 

B102, 1301 Constitution Ave., NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Office of Air and Radiation Docket 

and Information Center is (202) 566– 

1742. 

In addition, we have placed a variety 

of earlier materials regarding 

implementation of the 8-hour ozone 

NAAQS on the Web site: http:// 

www.epa.gov/ttn/naaqs/ozone/ 

o3imp8hr. 

FOR FURTHER INFORMATION CONTACT: Mr. 

John Silvasi, Office of Air Quality 
23952 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

Planning and Standards, U.S. 

Environmental Protection Agency, Mail 

Code C539–02, Research Triangle Park, 

NC 27711, phone number (919) 541-

5666, fax number (919) 541-0824 or by 

e-mail at silvasi.john@epa.gov or Ms. 

Denise Gerth, Office of Air Quality 

Planning and Standards, U.S. 

Environmental Protection Agency, Mail 

Code C539–02, Research Triangle Park, 

NC 27711, phone number (919) 541-

5550, fax number (919) 54l-0824 or by 

e-mail at gerth.denise@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Outline 

I. When Did EPA Propose this Rule? 

II. What is EPA’s Schedule for Taking Final 

Action on the Proposal? 

III. What is Included in this Rule? 

IV. In Short, what does this Final Rule 

Contain? 

A. How will EPA reconcile the 

classification provisions of subparts 1 

and 2? How will EPA classify 

nonattainment areas for the 8-hour 

standard? 

B. How will EPA treat attainment dates for 

the 8-Hour ozone standard? 

C. How will EPA implement the transition 

from the 1-hour to the 8-hour standard 

in a way to ensure continued momentum 

in States’ efforts toward cleaner air? 

D. What is the required timeframe for 

obtaining emissions reductions to ensure 

attainment by the attainment date? 

V. EPA’s Final Rule. 

A. How will EPA reconcile the 

classification provisions of subparts 1 

and 2? How will EPA classify 

nonattainment areas for the 8-hour 

NAAQS? 

1. Background. 

a. Statutory framework and Supreme Court 

decision. 

b. EPA’s proposed rule and notice 

reopening the comment period. 

2. Summary of final rule 

a. Why did EPA select Option 2? 

(i) Why will Option 2 best accomplish the 

policy goals of EPA? 

(ii) How is Option 2 Consistent with the 

CAA as Interpreted by the Supreme 

Court? 

3. Comments and Responses. 

4. Under the final classification approach, 

how will EPA classify subpart 1 areas? 

a. Background. 

b. Summary of Final Rule. 

c. Comments and Responses. 

5. Will EPA adjust classifications? 

a. Background. 

b. Summary of Final Rule. 

c. Comments and Responses. 

6. Proposed Incentive Feature. 

a. Background. 

b. Summary of Final Rule. 

c. Comments and Responses. 

B. How will EPA treat attainment dates for 

the 8-hour ozone NAAQS? 

1. Background. 

2. Summary of final rule. 

3. Comments and Responses. 

4. How Will EPA Address the Provision 

Regarding 1-Year Extensions? 

a. Background. 

b. Summary of final rule. 

c. Comments and Response 

C. How will EPA implement the transition 

from the 1-hour to the 8-hour NAAQS in 

a way to ensure continued momentum in 

States’ efforts toward cleaner air? 

1. When will EPA revoke the 1-hour 

NAAQS? 

a. Background. 

b. Summary of Final Rule. 

c. Comments and Responses 

2. What requirements that applied in an 

area for the 1-hour NAAQS continue to 

apply after revocation of the 1-hour 

NAAQS for that area? 

a. Background. 

b. Summary of Final Rule. 

c. Section 51.905(a)(1): 8-Hour NAAQS 

Nonattainment/1-Hour NAAQS 

Nonattainment 

(i) Mandatory Control Measures. 

(ii) Discretionary control measures. 

(iii) Measures to address growth. 

(iv) Planning SIPs. 

d. Section 51.905(a)(2): 8-Hour NAAQS 

Nonattainment/1-Hour NAAQS 

Maintenance 

(i) Mandatory Control Measures. 

(ii) Discretionary Control measures. 

(iii) Measures to address growth. 

(iv) Planning SIPs. 

e. Section 51.905(a)(3): 8-Hour NAAQS 

Attainment /1-Hour NAAQS 

Nonattainment 

(i) Mandatory control obligations. 


(ii) Discretionary control obligations. 


(iii) Measures to address growth. 


(iv) Planning SIPs. 


(v) Maintenance Plans for the 8-hour 


NAAQS. 

f. Section 51.905(a)(4): 8-Hour NAAQS 

Attainment/1-Hour NAAQS 

Maintenance 

(i) Obligations in an approved SIP. 

(ii) Maintenance plan. 

3. For how long do these obligations 

continue to apply? 

a. Background. 

b. Summary of Final Rule. 

c. Comments and Responses. 

4. Which portions of an area designated for 

the 8-hour NAAQS remain subject to the 

1-hour NAAQS obligations? 

a. Background. 

b. Summary of Final Rule. 

c. Comments and Responses. 

5. What obligations that applied for the 1-

hour NAAQS will no longer apply after 

revocation of the 1-hour NAAQS for an 

area? 

a. Background. 

b. Summary of Final Rule. 

c. Comments and Responses. 

(i) Comments on June 2, 2003 proposal: 

(ii) Comments on draft regulatory text. 

6. What is the continued applicability of 

the NOX SIP Call after revocation of the 

1-hour NAAQS? 

a. Background. 


b. Summary of Final Rule. 


c. Comments and Responses. 


(i) Comments on the June 2, 2003 proposal: 


D. What is the required timeframe for 


obtaining emissions reductions to ensure 

attainment by the attainment date? 

1. Background. 

2. Summary of final rule. 

3. Comments and Responses 

E. Conformity Under the 8-Hour Ozone 

Standard 

F. Comments on Other Issues 

1. Designations of nonattainment and 

attainment areas: 

2. Early Action Compacts (EACs): 

3. Health and environmental concerns: 

4. Clarity and understandability of 

proposed rule: 

5. Regulatory text: 

6. Requests for Extension of Comment 

Periods: 

G. Other Considerations 

1. What happens if a source is in the 

process of PSD permitting at the time 

that the area in which it is located is 

designated as nonattainment for the 8-

hour ozone NAAQS? 

H. EPA’s Final Action. 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 


D. Unfunded Mandates Reform Act 


E. Executive Order 13132: Federalism 


F. Executive Order 13175: Consultation 


and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children from Environmental Health and 

Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Petitions for Judicial Review 


M. Determination Under Section 307(d)


I. When Did EPA Propose This Rule? 

On June 2, 2003 (68 FR 32805), we 

published a proposed rule to implement 

the 8-hour ozone NAAQS. The proposal 

addressed a number of implementation 

issues, including the two core 

implementation issues addressed in this 

final rule, e.g., how the Clean Air Act 

(CAA or Act) classification provisions 

will apply for the 8-hour ozone NAAQS 

and the transition from the 1-hour 

NAAQS to the 8-hour NAAQS, 

including when the 1-hour NAAQS will 

be revoked and anti-backsliding 

principles. We proposed one or more 

options for each issue addressed in the 

proposal. In addition, we included two 

possible frameworks to implement the 

8-hour ozone NAAQS. These 

frameworks were complete 

implementation strategies comprised of 

one option for each implementation 

issue addressed in the proposed rule. 

The following principles guided us in 

the development of the underlying 
Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23953 

options and the frameworks to 

implement the 8-hour ozone NAAQS in 

the proposed rule: to protect public 

health, provide incentives for 

expeditious attainment of the 8-hour 

ozone NAAQS and avoid incentives for 

delay; to provide reasonable but 

expeditious attainment deadlines; to 

establish a basic, straightforward 

structure that could be communicated 

easily; to provide flexibility to States 

and EPA on implementation approaches 

and control measures while ensuring 

that the implementation strategy is 

supported by the CAA; to emphasize 

national and regional measures to help 

areas come into attainment and, where 

possible, reduce the need for those local 

controls that are more expensive than 

national and regional measures; and to 

provide a smooth transition from 

implementation of the 1-hour ozone 

NAAQS to implementation of the 8-

hour ozone NAAQS. An additional goal 

was to clarify the role of Tribes in 

implementing the 8-hour ozone 

NAAQS. Section 301(d) of the CAA 

recognizes that the American Indian 

Tribal governments are generally the 

appropriate authority to implement the 

CAA in Indian country. As discussed in 

the Tribal Authority Rule (TAR) (63 FR 

7262, February 12, 1998, and 59 FR 

43960–43961, August 25, 1994), it is 

appropriate to treat Tribes in the same 

manner as States. Therefore, when we 

discuss the role of the State in 

implementing this rule we are also 

referring to the Tribes. Please refer to 

the proposed rule (68 FR 32802, June 2, 

2003) for a detailed discussion and 

background information on the 8-hour 

ozone problem and EPA’s strategy for 

addressing it, the 8-hour ozone NAAQS 

and associated litigation, and the 

stakeholder process for gathering input 

into this effort, among other topics. 

On August 6, 2002 (68 FR 46536), we 

published a notice of availability of the 

draft regulatory text for the proposed 

rule to implement the 8-hour ozone 

NAAQS. This notice started a 30-day 

public comment period on the draft 

regulatory text. In addition, on October 

21, 2003 (68 FR 60054), we reopened 

the public comment period for 15 days 

to solicit additional comment on 

alternative approaches for classifying 

ozone nonattainment areas, based on 

comments received during the comment 

period. 

II. What Is EPA’s Schedule for Taking 

Final Action on the Proposal? 

In our June 2, 2003 proposal, we 

stated that we planned to issue the final 

implementation rule in December of 

2003. While there is not a CAA deadline 

for promulgating a strategy to 

implement the 8-hour ozone NAAQS, 

the CAA does establish a deadline for 

EPA to promulgate designations of 

nonattainment areas under section 107 

of the CAA.1 We have entered into a 

consent decree that requires us to 

promulgate designations by April 15, 

2004.2 Our goal was to issue a final 

implementation rule by the end of 2003 

because the States and Tribes indicated 

a strong interest in having an 

opportunity to understand the impacts 

of being designated nonattainment prior 

to promulgation of designations for the 

8-hour NAAQS. Based on the large 

number of public comments received on 

our proposal and our need to consider 

and respond to those comments before 

taking final action, we were unable to 

issue a final rule prior to April 15, 2004 

that addresses all issues raised in the 

proposal. This final rule addresses 

several key components of the proposed 

rule: how the classification provisions 

of the CAA will apply for purposes of 

the 8-hour ozone NAAQS and the 

transition from the 1-hour NAAQS to 

the 8-hour NAAQS, including when the 

1-hour NAAQS will be revoked, how 

anti-backsliding principles will ensure 

continued progress toward attainment of 

the 8-hour ozone NAAQS, attainment 

dates, and the timing of emissions 

reductions needed for attainment. 

Within the next several months, we 

plan to issue a second final rule, Phase 

2, which will address many of the 

planning and control obligations under 

sections 172 and 182 of the CAA that 

will apply for purposes of implementing 

the 8-hour ozone NAAQS. These 

include, among other things, RFP, 

RACT, attainment demonstrations and 

maintenance plans, and new source 

review (NSR). Neither Phase 1 nor Phase 

2 will address the appropriate tests 

under the 8-hour ozone NAAQS for 

demonstrating conformity of Federal 

actions to State implementation plans 

(SIPs). A proposed rule was published 

on November 5, 2003 (68 FR 62689) 

addressing transportation conformity 

requirements applicable in 8-hour ozone 

nonattainment areas. In addition, EPA is 

revising its general conformity 

regulations and plans to issue a 

proposed rule in the spring of 2004. 

1 Section 107(d) of the CAA sets forth a schedule 

for designations following the promulgation of a 

new or revised NAAQS. The Transportation Equity 

Act for the Twenty-first Century (TEA–21) revised 

the deadline to promulgate nonattainment 

designations to provide an additional year (to July 

2000) but HR3645 (EPA’s appropriation bill in 

2000) restricted EPA’s authority to spend money to 

designate areas until June 2001 or the date of the 

Supreme Court ruling in the litigation challenging 

the NAAQS, whichever came first. 

2 American Lung Association v. EPA (D.D.C. No. 

1:02CV02239). 

III. What Is Included in This Rule? 

Today’s action, Phase 1 of the 

implementation rule, focuses on two 

key implementation issues: (1) 

Classifying areas for the 8-hour NAAQS 

and (2) transitioning from the 1-hour to 

the 8-hour NAAQS, which includes 

revocation of the 1-hour NAAQS and 

the anti-backsliding principles that 

should apply upon revocation.3 In 

addition, it addresses several additional, 

related issues. We believe that 

classifications and anti-backsliding are 

key elements of the implementation 

program that are of primary interest to 

the States and Tribes prior to the final 

designations. In addition, because 

section 182(a) of the CAA provides that 

classifications will occur ‘‘by operation 

of law’’ at the time of designation, EPA 

believes it is critical that the public 

understands at the time of designations 

how the classification provisions will 

apply. 

IV. In Short, What Does This Final Rule 

Contain? 

This summary is intended to give 

only a convenient overview of our final 

rule. It should not be relied on for the 

details of the actual rule. The final rule 

(regulatory text) and the discussion of it 

in the next section below should be 

consulted directly. 

Both the preamble and the rule may 

use the following terms to discuss four 

categories of areas for purposes of the 

anti-backsliding provisions: (1) 8-hour 

NAAQS Nonattainment/1-hour NAAQS 

Nonattainment; (2) 8-hour NAAQS 

Nonattainment/1-hour NAAQS 

Maintenance; (3) 8-hour NAAQS 

Attainment/1-hour NAAQS 

Nonattainment; (4) 8-hour NAAQS 

Attainment/1-hour NAAQS 

Maintenance. These categories are, 

respectively: (1) Areas that remain 

designated nonattainment for the 1-hour 

NAAQS at the time of designation as 

nonattainment for the 8-hour NAAQS; 

(2) Areas that are maintenance areas for 

the 1-hour NAAQS at the time of 

designation as nonattainment for the 8-

hour NAAQS; (3) Areas that remain 

designated nonattainment for the 1-hour 

NAAQS at the time of designation as 

attainment for the 8-hour NAAQS; and 

(4) Areas that are maintenance areas for 

the 1-hour NAAQS at the time of 

designation as attainment for the 8-hour 

NAAQS. 

3 We use the term ‘‘revocation’’ as shorthand for 

a determination under 40 CFR 50.9(b) that the 1-

hour NAAQS no longer applies to one or more 

areas. 
23954 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

A. How Will EPA Reconcile the 

Classification Provisions of Subparts 1 

and 2? How Will EPA Classify 

Nonattainment Areas for the 8-Hour 

Standard? 

The final rule incorporates Option 2 

of the proposal. Each area with a current 

1-hour design value at or above 0.121 

ppm (the lowest 1-hour design value in 

Table 1 of subpart 2) will be classified 

under subpart 2 based on its 8-hour 

design value. All other areas will be 

covered under subpart 1 using their 8-

hour design values. 

In brief, this approach works as 

follows: 

• First, we will determine which 8-

hour areas will be covered under 

subpart 2 and which under subpart 1. 

Any area with a 1-hour ozone design 

value (at the time of designation) that 

meets or exceeds the statutory level of 

0.121 ppm that Congress specified in 

Table 1 of section 181 will be classified 

under subpart 2 and will be subject to 

the control obligations associated with 

its classification.4 Any area with a 1-

hour design value (at the time of 

designation) that is below the level of 

0.121 ppm will be covered under 

subpart 1 and subject to the control 

obligations in section 172. 

• Second, subpart 2 areas will be 

classified as marginal, moderate, 

serious, severe or extreme based on the 

area’s 8-hour design value (at the time 

of designation). Since Table 1 is based 

on 1-hour design values, and 

application of the Table as written 

would produce absurd results, we are 

promulgating a regulation translating 

the thresholds in Table 1 of section 181 

from 1-hour values to 8-hour values. 

Under the Final Classification 

Approach, How Will EPA Classify 

Subpart 1 Areas? 

We are adopting the second option 

but modified as a result of comments. 

We are creating an overwhelming 

transport classification that will be 

available to subpart 1 areas that 

demonstrate they are affected by 

overwhelming transport of ozone and its 

precursors and demonstrate they meet 

the definition of a rural transport area in 

section 182(h). However, areas would 

not have to demonstrate that transport 

was due solely to sources from outside 

the State (interstate transport) as was 

implied by the June 2, 2003 proposal. 

All other areas that do not qualify for 

the overwhelming transport 

classification would not be classified. 

4 In the Phase 2 rule, we will address the control 

obligations that apply to areas under both subpart 

1 and subpart 2. 

Proposed Incentive Feature 

We are not including the proposed 

incentive feature in the final rule. 

B. How Will EPA Treat Attainment 

Dates for the 8-Hour Ozone Standard? 

We are adopting the time periods for 

attainment that we proposed for areas 

under both subpart 1 and subpart 2 of 

the CAA. For areas subject to subpart 2 

of the CAA, the maximum period for 

attainment will run from the effective 

date of designations and classifications 

for the 8-hour standard and will be the 

same periods as provided in Table 1 of 

section 181(a): 

• Marginal—3 years 

• Moderate—6 years 

• Serious—9 years 

• Severe—15 or 17 years 

• Extreme—20 years 

Consistent with section 172(a)(2)(A), 

for areas subject to subpart 1 of the 

CAA, the period for attainment will be 

no later than 5 years after the effective 

date of the designation. However, EPA 

may grant an area an attainment date no 

later than 10 years after designation, if 

warranted based on the factors provided 

in section 172(a)(2)(A). 

How Will EPA Address the Provision 

Regarding 1-Year Extensions? 

We are adopting the interpretation 

that we proposed on June 2, 2003. 

Under both sections 172(a)(2)(C) and 

181(a)(5), an area will be eligible for the 

first of the 1-year extensions under the 

8-hour standard if, for the attainment 

year, the area’s 4th highest daily 8-hour 

average is 0.084 ppm or less. The area 

will be eligible for the second extension 

if the area’s 4th highest daily 8-hour 

value, averaged over both the original 

attainment year and the first extension 

year, is 0.084 ppm or less. 

C. How Will EPA Implement the 

Transition From the 1-Hour to the 8-

Hour Standard in a Way To Ensure 

Continued Momentum in States’ Efforts 

Toward Cleaner Air? 

There are two key issues that EPA 

considered together regarding the 

transition from the 1-hour standard to 

the 8-hour standard: (1) When will the 

1-hour standard no longer apply (i.e., be 

‘‘revoked’’); and (2) what protections are 

in place to ensure that, once the 1-hour 

standard is revoked, air quality will not 

degrade and that progress toward 

attainment will continue as areas 

transition from implementing the 1-hour 

standard to implementing the 8-hour 

standard. As in the proposed rule, the 

second key issue has three components: 

(1) What requirements that applied 

based on an area’s classification for the 

1-hour standard must continue to apply 

to that area; (2) for how long; and (3) in 

what area. Below, we set forth our final 

transition approach in four parts: (1) 

When will the 1-hour standard no 

longer apply (i.e., when will it be 

revoked); (2) what 1-hour obligations 

should continue to apply once the 1-

hour standard is revoked; (3) how long 

should those requirements continue to 

apply; and (4) what is the geographic 

area subject to the requirement. 

1. When Will EPA Revoke the 1-Hour 

Standard? 

We are adopting Option 1. We will 

revoke the 1-hour standard in full, 

including the associated designations 

and classifications, 1 year following the 

effective date of the designations for the 

8-hour NAAQS. 

2. What Requirements That Applied in 

an Area for the 1-Hour NAAQS 

Continue To Apply After Revocation of 

the 1-Hour NAAQS for That Area? 

The approach we are adopting in the 

final rule is summarized below under 

the individual sections discussing each 

category of area and type of control 

obligation. 

a. Section 51.905(a)(1): 8-Hour 

NAAQS Nonattainment/1-Hour NAAQS 

Nonattainment 

(i) Mandatory control measures. We 

are adopting the approach we proposed. 

All areas designated nonattainment for 

the 8-hour ozone NAAQS and 

designated nonattainment for the 1-hour 

ozone NAAQS at the time of designation 

for the 8-hour NAAQS remain subject to 

control measures that applied by virtue 

of the area’s classification for the 1-hour 

standard. 

(ii) Discretionary control measures. 

We are adopting the approach we set 

forth in our proposed rule. A State may 

revise or remove discretionary control 

measures (including enforceable 

commitments) contained in its SIP for 

the 1-hour standard so long as the State 

demonstrates consistent with section 

110(l) that such removal or modification 

will not interfere with attainment of or 

progress toward the 8-hour ozone 

NAAQS (or any other applicable 

requirement of the CAA). 

(iii) Measures to address growth. We 

are not adopting the approach set forth 

in our proposed rule. For areas 

designated nonattainment for the 1-hour 

NAAQS at the time of designation for 

the 8-hour NAAQS and that are 

designated nonattainment for the 8-hour 

NAAQS, the major source applicability 

cut-offs and offset ratios for the area’s 1-

hour classification would not continue 

to apply after revocation of the 1-hour 

NAAQS. 
The rest of this “Final Rule To Implement the

8-Hour Ozone National Ambient Air Quality

Standard–Phase 1,” published in the Federal

Register April 30, 2004 (69 FR 23951 to

24000), is not included in this document

because it is available in several web

sites including the EPA Federal Register

Environmental Documents web site at 

http://www.epa.gov/fedrgstr/

The Federal Register is also available in 

in this Regulations.gov web site in 

EPA docket EPA-HQ-OAR-2003-0079

document EPA-HQ-OAR-2003-0079-0718 
EXHIBIT 4

SUNLAND PARK, NEW·MEXICO

1995 OZONE NONATTAINMENT DESIGNATION
Designation of Area for Air Quality Planning Purposes; New Mexico; Designation of Slill... Page 1 of 5

Federal Register nvironmental

Documents

Recent MJ:ljl19RS I Contact Us I Search: I m!1 r;E'AJ:JQm~ > EeOeraLRegisteJ > FR Years> FR Months> ER_QaYs > FR DailY> Designation of Area

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Designation of Area for Air Quality Planning Purposes; Ne,

Designation of Sunland Park Ozone Nonattainment Area

[Federal Register: June 12, 1995 (Volume 60, Number 112)]

[Rules and Regulations]

[Page 30789-30791]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[NM-25-1-6980; FRL-5218-1]

Designation of Area for Air Quality Planning Purposes; New

Mexico; Designation of Sunland Park Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: Pursuant to section 107(d) (3) of the Clean Air Act (CAA) , the

EPA is taking final action to redesignate a portion of Dona Ana County,

New Mexico (i.e. the Sunland Park area) from unc1assifiable/attainment

to nonattainment for the ozone National Ambient Air Quality Standards

(NAAQS). The redesignation is based upon violations of the ozone NAAQS

which were monitored from 1992-1994.

EFFECTIVE DATE: July 12, 1995.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the

addresses listed below. The interested persons wanting to examine these

documents should make an appointment at least twenty-four hours before

the visiting day.

U.S. Environmental Protection Agency, Region 6, Air Programs Branch

(6T-A), 1445 Ross Avenue, suite 700, Dallas, Texas 75202-2733

New Mexico Environment Department, Air Monitoring & Control Strategy

Bureau, 1190 St. Francis Drive, room So. 2100, Santa Fe, New Mexico

87503

FOR FURTHER INFORMATION CONTACT: Mr. Mark Sather, Planning Section (6TAP),

Air Programs Branch (6T-A), USEPA Region 6, 1445 Ross Avenue,

Dallas, Texas 75202-2733, telephone (214) 665-7258.

SUPPLEMENTARY INFORMATION:

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Background

The CAA authorizes the EPA to revise the designation of current

ozone areas from unclassifiable/attainment to nonattainment on the

basis of air quality data, planning and control considerations, or any

other air quality-related considerations the EPA deems appropriate (see

section 107 (d) (3) of the CAA).

Following the process outlined in section 107 (d) (3) of the CAA, on

December 16, 1994, the Regional Administrator of the EPA Region 6

notified the Governor of New Mexico that the EPA believed the Sunland

Park area should be redesignated as nonattainment for ozone. Under

section 107 (d) (3) (B) of the CAA, the Governor of New Mexico was

required to submit to the EPA the designation considered appropriate

for the Sunland Park area within 120 days after the EPA's notification.

The EPA received the State's response for the Sunland Park area on

February 6, 1995 (letter dated January 30, 1995). Following receipt of

the Governor's letter, the EPA proceeded to propose the nonattainment

designation for the Sunland Park area (see 60 Federal Register (FR)

17756-17758, April 7, 1995). The EPA now is taking final action on the

proposed nonattainment redesignation. Based upon the EPA's review of

the State's January 30, 1995, letter for the Sunland Park area, the EPA

is finalizing a redesignation to nonattainment which is consistent with

the request submitted by the Governor of New Mexico.

Section 107 (d) (1) (A) of the CAA sets out definitions of

nonattainment, attainment, and unclassifiable. A nonattainment area is

defined as any area that does not meet (or that significantly

contributes to ambient air quality in a nearby area that does not meet)

the national primary or secondary ambient air quality standard for

ozone (see section 107(d) (1) (A) (i) of the [[Page 30790]] CAA) <SUP>l.

Thus, in determining the appropriate boundaries for the nonattainment

area finalized in this action, the EPA has considered not only the area

where the violations of the ozone NAAQS are occurring, but nearby areas

which significantly contribute to such violations.

\1\ The EPA has construed the definition of nonattainment area

to require some material or significant contribution to a violation

in a nearby area. The Agency believes it is reasonable to conclude

that something greater than a molecular impact is required.

Response to Public Comments

In the April 7, 1995, proposal FR action, the EPA requested public

comments on all aspects of the proposal, including the appropriateness

of the proposed designation and the scope of the proposed boundaries.

The EPA received no comments on the proposal FR action.

Final Action

As noted above, pursuant to section l07(d) (3) of the CAA, the EPA

is authorized to initiate the redesignation of areas as nonattainment

for ozone. Based on the ozone air quality monitoring data for the

Sunland Park monitoring station, the EPA notified the Governor of New

Mexico on December 16, 1994, that the Sunland Park area should be

redesignated from unclassifiable/attainment to nonattainment for the

ozone NAAQS. Ozone monitoring began in Sunland Park on June 15, 1992.

Seven measured exceedances of the ozone NAAQS have been recorded at the

monitoring site, ranging from a low of .126 parts per million (ppm) to

a high of .140 ppm. The seven exceedances represent a violation of the

ozone NAAQS (see 40 Code of Federal Regulations (CFR) 50.9). Since less

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than three years of data have been collected at the Sunland Park

monitoring site, the EPA design value (used to determine ozone

attainment status) for the site is the third highest ozone value

recorded--.136 ppm. Therefore, the Sunland Park ozone nonattainment

area is classified as a marginal ozone nonattainment area according to

the classification scheme set forth in section 181 of the CAA. Due to

the marginal classification, the attainment date for the Sunland Park

ozone nonattainment area will be three years from the effective date of

this Federal Register final action establishing the nonattainment

designation and classification.

In response to the EPA's December 16, 1994, letter, on January 30,

1995, the Governor of New Mexico concurred with the EPA that a small

area of southern Dona Ana County, including Sunland Park, be

redesignated as nonattainment for the ozone NAAQS. However, the

Governor did not concur with the proposed nonattainment boundaries in

one respect, proposing an alternate western boundary for the

nonattainment area. Based on the information provided by the Governor,

including monitoring data, the EPA believes that the nonattainment

boundaries submitted by the Governor are appropriate. The technical

information supporting the redesignation request and the boundary

selections are available for public review at the addresses indicated

above.

Significance of Final Action for the Sunland Park Area, New Mexico

Within 24 months after the effective date of this final action on

the nonattainment redesignation, New Mexico must submit an

implementation plan for the Sunland Park ozone nonattainment area

meeting the requirements of part D, title I of the CAA (see section

182(a) of the CAA).

The CAA provides that the plan for the area must contain, among

other things, the following items:

A comprehensive, accurate, current inventory of actual emissions

from all sources, as described in section 172(c) (3) of the CAA, in

accordance with guidance provided by the EPA. The pollutants

inventoried must include volatile organic compounds (VOC) , nitrogen

oxides (NO<INF>X) and carbon monoxide. No later than the end of each

three year period after submission of the initial inventory, until the

area is redesignated to attainment, the State must submit a revised

inventory meeting all EPA requirements (see section 182(a) (1) of the

CAA) .

Requirements that the owner or operator of each stationary

source of NOx or VOC provide the State with a statement, in such form

as the EPA may prescribe, for classes or categories of sources, showing

the actual emissions of NOx and VOC from that source. The first such

statement must be submitted to the State within three years after the

effective date of this final action establishing the nonattainment

designation. Subsequent statements shall be submitted at least every

year thereafter. The statement shall contain a certification that the

information contained in the statement is accurate to the best

knowledge of the individual certifying the statement. The State may

waive the emission statement requirement for any class or category of

stationary sources which emits less than 25 tons per year of VOC or

NOx, if the State, in its initial and periodic emission inventories,

provides an inventory of emissions from such class or category of

sources, based on the use of the emission factors established by the

EPA, or other methods acceptable to the EPA (see section 182(a) (3) (B)

of the CAA).

A revised nonattainment new source review permitting program

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meeting the requirements of sections 172(c) (5) and 173 of the CAA,

including the requirement that the ratio of total emission reductions

of VOC to total increased emissions of such air pollutant shall be at

least 1.1 to 1 (see section 182 (a) (4) of the CAA).

Revised conformity rules (Regulations 20 NMAC 2.98 and 20 NMAC

2.99) if necessary (see sections 176 and 182 of the CAA).

Miscellaneous

Under the Regulatory Flexibility Act,S U.S.C. 600 et seq., the EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities (5 U.S.C. 603 and 604).

Alternatively, the EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

Redesignation of an area to nonattainment under section 107(d) (3)

of the CAA does not impose any new requirements on small entities.

Redesignation is an action that affects the planning status of a

geographical area and does not, in itself, impose any regulatory

requirements on sources. To the extent that the area must adopt new

regulations, based on its nonattainment status, the EPA will review, as

appropriate, the effect of those actions on small entities at the time

the State submits those regulations. I certify that approval of the

redesignation request will not affect a substantial number of small

entities.

Under section 307(b) (1) of the CAA, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by August 11, 1995. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule for the purposes of judicial review nor does

it extend the time within which a petition for judicial review may be

filed, and shall not postpone the effectiveness of such rule or action.

This action may not be challenged later in proceedings to enforce its

requirements (see section 307 (b) (2)). [[Page 30791]]

Executive Order

The Office of Management and Budget has exempted this action from

review under Executive Order 12866.

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, National parks,

Wilderness areas.

Dated: May 25, 1995.

Jane N. Saginaw,

Regional Administrator.

40 CFR part 81 is amended as follows:

PART 81--[AMENDED]

The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

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Designation of Area for Air Quality Planning Purposes; New Mexico; Designation of Slill... Page 5 of 5

2. In Sec. 81.332 the ozone table is amended by revising the entry

"AQCR 153 El Paso-Las Cruces-Alamogordo" to read as follows:

Sec. 81.332 New Mexico.

* * * *

New Mexico--Ozone

Designation

Date \1\ Type Date \1\

*

ClassificatiOl

Type

Cruces-Alamogordo.

(part)--The area

bounded by the New

Mexico-Texas State

line on the east,

the New MexicoMexico international

line on the south,

the Range 3E-Range

2E line on the west,

and the N3200

latitude line on the

north.

County. Attainment.

Attainment.

Attainment.

Attainment.

* \1\ This date is November 15, 1990, unless otherwise noted.

This page was generated on Tuesday, April 17, 2007

View the graphical version of this page at: httJ:r//www.epa.ggv/fec:!Igstr/EPA-AIR/1995/June/Day-.:.L2lpr-732.html

http://www.epa.gov/cgi-bin/epaprintonly.cgi 4/17/2007
EXHIBITS

SUNLAND PARK, NEW MEXICO NONATTAINMENT AREA

EPA SIP ApPROVAL
Friday,

February 8, 2002

Part VII

Environmental

Protection Agency

40 CFR Part 52

Approval of Revision to State

Implementation Plan; New Mexico; Don ̃a

Ana County State Implementation Plan

for Ozone; Emission Inventory; Permits;

Approval of Waiver of Nitrogen Oxides

Control Requirements; Volatile Organic

Compounds, Nitrogen Oxides, Ozone;

Final Rule and Proposed Rule

6148 Federal Register / Vol. 67, No. 27 / Friday, February 8, 2002 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[NM–36–1–7372a; FRL–7140–4]

Approval of Revision to State

Implementation Plan; New Mexico;

Don ̃ a Ana County State

Implementation Plan for Ozone;

Emission Inventory; Permits; Approval

of Waiver of Nitrogen Oxides Control

Requirements; Volatile Organic

Compounds, Nitrogen Oxides, Ozone

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The EPA is providing direct

final approval of the New Mexico State

Implementation Plan (SIP) for the Don ̃ a

Ana County ozone nonattainment area.

The area was designated nonattainment

for ozone and classified as ‘‘marginal’’

in 1995. New Mexico submitted its SIP

for the Don ̃ a Ana County area in 1997,

requesting approval of the SIP, and

requesting approval of a waiver of

nitrogen oxides (NOX) requirements

contained in section 182(f) of the Clean

Air Act, as amended in 1990 (the Act).

With this action the EPA is providing

direct final approval of the Don ̃ a Ana

County nonattainment area SIP and

waiver of NOX requirements. The

waiver for NOX requirements is granted

because the area has attained the onehour ozone standard without them,

within the deadline prescribed by the

Act.

DATES: This direct final rule will

become effective on April 9, 2002

without further notice unless the EPA

receives adverse comments by March

11, 2002. Should the EPA receive such

comments, it will publish a timely

document in the Federal Register

withdrawing this rule and informing the

public that this rule will not take effect.

ADDRESSES: Written comments on this

action should be addressed to Mr.

Thomas H. Diggs, Chief, Air Planning

Section (6PD–L), at the EPA Region 6

Office listed below. Copies of

documents relevant to this action are

available for public inspection during

normal business hours at the following

locations. Anyone wanting to examine

these documents should make an

appointment with the appropriate office

at least two working days in advance.

Environmental Protection Agency,

Region 6, Air Planning Section (6PD–L),

1445 Ross Avenue, Dallas, Texas 75202–

2733.

New Mexico Environment Depart, Air

Quality Bureau, 1190 St. Francis Drive,

Santa Fe, New Mexico 87502.

FOR FURTHER INFORMATION CONTACT: Mr.

Matthew Witosky, Air Planning Section

(6PD–L), Multimedia Planning and

Permitting Division, EPA Region 6, 1445

Ross Avenue, Dallas, Texas 75202–2733,

telephone (214) 665–7214, electronic

mail WITOSKY.MATTHEW@EPA.GOV

SUPPLEMENTARY INFORMATION:

I. Background

Throughout this document, the EPA uses

the word ‘‘we,’’ ‘‘us,’’ or ‘‘our,’’ to mean the

EPA. The information in this section is

organized as follows.

1. What action is the EPA taking today?

2. Why is this necessary?

3. What part of New Mexico is affected?

4. What part of the SIP is being approved?

a. Emission inventory (EI).

b. Emission Certification Statement in

Emission Reports.

c. NSR permit program for the construction

and operation of new and modified major

stationary sources of VOC (section 172(c)(5)

of the Act)

5. Does the SIP submitted contain a motor

vehicle emissions budget for on-road

emissions of volatile organic compounds

(VOC’s) for transportation conformity

purposes?

6. What is a waiver of NOX control

requirements?

7. Why is the Don ̃ a Ana County area being

granted a NOX waiver?

8. How long is the waiver of NOX

requirements valid?

9. What process did the State use to

approve the SIP and the NOX waiver?

10. Did EPA make an exception for Don ̃ a

Ana County under section 179B(a) of the Act,

because the area borders Mexico?

II. Final Action

III. Administrative Requirements

I. Background

1. What Action is the EPA Taking

Today?

EPA is approving a revision to the

New Mexico SIP, for the Don ̃ a Ana

County (marginal) ozone nonattainment

area. A portion of Don ̃ a Ana County was

designated nonattainment for the

National Ambient Air Quality Standards

(NAAQS) for ozone (see 40 CFR 81.332).

The SIP contains four elements that

were adopted by the State to meet the

requirements of the Act. EPA is

approving three of these elements in

this action. The fourth element,

revisions to the transportation

conformity rule, (see 65 FR 14873) was

approved March 20, 2000. By approving

these final three elements, the EPA is

approving the Don ̃ a Ana County SIP.

With final approval of this action, the

State has met all the requirements that

apply to Don ̃ a Ana county under the

one-hour ozone standard. The EPA is

also approving a waiver of NOX control

requirements established under section

182(f); the authority for EPA to waive

these requirements is likewise under

section 182(f).

2. Why is This Necessary?

The EPA designated the area as

nonattainment, and classified it as

‘‘marginal’’ due to violations of the

ozone standard during 1993, 1994, and

1995 (see 60 FR 30789, June 12, 1995).

That action imposed certain

requirements under the Act to reduce

pollution in order to bring the area back

into attainment of the ozone standard.

New Mexico has adopted the

appropriate regulations, submitted them

to EPA for review and approval, and

implemented them. Under the Act, the

EPA must approve these regulations and

other actions into the existing federallyapproved State Implementation Plan

(SIP), to make them federally

enforceable.

3. What part of New Mexico is Affected?

The Don ̃ a Ana County nonattainment

area encompasses the community of

Sunland Park, and several smaller

communities adjacent to El Paso, Texas,

and Ciudad Juarez, Mexico. (See 40 CFR

81.332)

4. What Part of the SIP is Being

Approved?

The Don ̃ a Ana County SIP constitutes

a revision to New Mexico’s overall SIP,

adopted prior to the 1990 Amendments

to the Act. The Don ̃ a Ana County SIP is

made up of four components, three of

which the EPA will approve in this

action.

a. Emission inventory (EI),

b. Emission Certification Statement,

c. Revisions to new source review

(NSR), The fourth component, Revisions

to the transportation conformity rule,

was approved in a previous action (see

65 FR 14873, March 20, 2000).

a. Emission Inventory (EI)

New Mexico completed a

comprehensive, accurate, and current

inventory of actual emissions from all

sources of relevant pollutants in the

nonattainment area. The State used

1995 as the base year for the inventory,

using a three-month ozone season of

August through October, 1995.

Stationary point sources, area sources,

on-road mobile sources, non-road

mobile sources, and biogenic sources of

ozone precursors, VOC’s and NOX were

included in the inventory. The New

Mexico Environment Department

(NMED) included stationary sources

with emissions greater than 100 tons per

year (tpy) within a 25-mile range of the

nonattainment area.

For a listing of the ozone peak season

daily emissions estimates by source

Federal Register / Vol. 67, No. 27 / Friday, February 8, 2002 / Rules and Regulations 6149

1See generally 172(c)(5) and 173(c). New major

sources and major modifications which increase

emissions of pollutants other than VOC continue to

be subject to the permitting requirements under part

74. New and modified sources which are not major

under part 74 and part 79 continue to be subject to

the permitting requirements under part 72.

category, please see the docket file for

this rulemaking action.

EPA reviewed the emissions

inventory submitted by the State, and

the methodology used to generate it.

EPA verified that the State followed

EPA’s emission inventory guidance in

developing the inventory. Please see the

docket file for more information on the

inventory.

For calendar year 1998 and for each

three-year period thereafter (until the

area is redesignated to attainment),

NMED will be required to submit to

EPA a revised inventory meeting the

requirements of sections 182(a)(1) and

182(a)(3) of the CAA.

b. Emission Certification Statement in

Emission Reports

Section 182(a) of the Act requires that

States insert an emission certification

requirement into their regulations. That

means the owner or operator of each

stationary source of NOX or VOC must

provide the State with a written report

tallying the actual emissions of NOX and

VOC from that source. The first such

reports had to be submitted to the State

within three years after the effective

date of the final action establishing the

nonattainment designation, July 12,

1998.

Subsequent reports must be submitted

at least every year thereafter. All reports

must contain a certification that the

information submitted is accurate to the

best knowledge of the individual

certifying the statement.

New Mexico revised 20 NMAC,

chapter 2, part 73, to meet these

requirements. Subpart III, sections 300

to 304, contain the detailed reporting

requirements for sources affected by the

regulation. These sections will be

incorporated by reference into the

approved SIP. See the docket file for the

actual text of the regulation.

c. NSR Permit Program for the

Construction and Operation of New and

Modified Major Stationary Sources of

VOC (section 172(c)(5) of the Act)

Prior to designation as nonattainment,

New Mexico operated an air permit

program in Don ̃ a Ana County, under

New Mexico Air Code (NMAC) part

72—Construction Permits and part 74—

Prevention of Significant Deterioration

(see generally the Act, sections 110(a)

(2)(c) and sections 160–169). After

designation to nonattainment, new

major sources and major modifications

of VOC sources in the nonattainment

area of Don ̃ a Ana County were

required 1 to be permitted under part

79—Permits-Nonattainment areas,

under revised 20 NMAC, chapter 2, part

79, section 112.C.1, to meet the marginal

nonattainment offset requirements of

section 182 (a)(4). Section 112.C.1 sets

the ratio of offsets required of new or

modified sources in such areas.

Subsequent sections outline the

procedure for calculating the baseline

from which offsets will be obtained,

how to calculate actual offset emissions,

and how to bank them. Section 112.C.1

will be incorporated by reference into

the approved SIP. See the docket file for

the actual text of the regulation.

5. Does the SIP Submitted Contain a

Motor Vehicle Emissions Budget for OnRoad Emissions of Volatile Organic

Compounds (VOC’s) for Transportation

Conformity Purposes?

The SIP submitted by the State does

not contain an MVEB. Although the area

is subject to the transportation

conformity requirements, as are all

nonattainment and maintenance areas,

the State has directed the planning

agency responsible for transportation

planning in Sunland Park to perform all

necessary conformity analyses using the

build/no-build test (see 40 CFR 93.119).

The El Paso Metropolitan Planning

Organization is the agency that

currently performs this analysis for the

Sunland Park area. The build/no-build

test is an acceptable method to meet the

transportation conformity requirements

under 40 CFR 93.109(c)(4)(i).

6. What is a waiver of NOX Control

Requirements?

Under the Act, marginal and certain

other ozone nonattainment areas are

required to control NOX emissions, as

well as VOC emissions, the two main

precursors for ozone. However, some

areas can forego the additional control

of NOX, and still attain the standard.

Still other areas have shown that NOX

reductions in their areas do not reduce

ozone concentrations. For these areas,

the EPA is allowed to waive the control

requirements on NOX by rulemaking

action. This is called a NOX waiver rule

(See generally 182(f) and the NOX

preamble, 57 FR 55620, November 25,

1992).

7. Why is Don ̃ a Ana County Being

Granted a NOX Waiver?

The State requested a NOX waiver

when they submitted their SIP in 1997.

The area is being given a NOX waiver

because the area has attained the

standard by relying on reductions of

only VOC emissions. Under the

provisions of section 182(f), the EPA

Administrator may waive the NOX

requirements because additional

reductions would not contribute to

attainment of the one-hour ozone

standard (see 182(f)(A)). The EPA has

sufficient data proving the area is

monitoring attainment. Any NOX

reductions that would otherwise be

required under section 182, would be

beyond the reductions needed for

attainment. Hence, the EPA is honoring

the State’s request for a waiver of the

NOX requirements. Doing so does not

affect the requirements for control of

VOC’s. The State has not requested that

EPA redesignate the area to attainment

at this time.

In the case of Don ̃ a Ana County,

which is classified marginal for ozone,

granting its request will waive

requirements applicable under the Act;

NOX requirements under the

nonattainment new source review

program, including offsets; the NOX

requirements of general conformity, as

well as the NOX requirements of the

build/no-build provisions of the

transportation conformity rules. For

transportation conformity, see 58 FR

62188 published on November 24, 1993,

as amended, and 60 FR 44790, and

44794 of August 29, 1995. See also 59

FR 31238 published June 17, 1994. For

general conformity, see 58 FR 63214

published on November 30, 1993, and

59 FR 31239, June 17, 1994.

8. How Long is the Waiver of NOX

Requirements Valid?

The EPA believes that all waivers of

section 182(f) requirements that are

approved, should be approved only on

a contingent basis. If the area exceeds

the one-hour ozone standard in the

future, the EPA would re-evaluate all

available data and modeling to

determine the continuing validity of our

decision to grant the NOX waiver. An

exceedence of the standard, in and of

itself, would not compel EPA to rescind

the waiver. That said, compelling air

quality data or modeling evidence that

reductions in NOX would reduce the

number or severity of ozone violations

in the Don ̃ a Ana County area, would be

justification to rescind the waiver.

9. What Process did the State use to

Approve the SIP and the NOX Waiver?

Under the authority of section

107(d)(3) of the Act, the EPA designated

the area as a marginal ozone

nonattainment area on June 12, 1995

(see 60 FR 30789, June 12, 1995).

The Act requires states to observe

certain procedural requirements in

6150 Federal Register / Vol. 67, No. 27 / Friday, February 8, 2002 / Rules and Regulations

developing implementation plans and

plan revisions for submission to EPA in

response to such a designation. Section

110(a)(2) of the Act provides that each

implementation plan submitted by a

State must be adopted after reasonable

notice and public hearing. See also

section 110(l) of the Act. Also, EPA

must determine whether a submittal is

complete and, therefore, warrants

further EPA review and action. See

section 110(k)(1) and 57 FR 13565.

EPA’s completeness criteria for SIP

submittals are set out at 40 CFR part 51.

The SIP package was received on

October 8, 1997. The submittal included

a Governor’s letter dated September 24,

1997, a certification of public hearing

with the hearing record, and copies of

the rules adopted to fulfill the

requirements of the Act. The certificate

of public hearing showed that public

hearings were held on July 11, 1997, to

entertain public comment on a revision

of the SIP. Following the public hearing,

this revision was adopted by the State

on August 8, 1997, and submitted to the

EPA as a proposed revision to the SIP.

This submittal is necessary to satisfy the

requirements of sections 182(a) and

179B of the Act. The State adopted the

request for a NOX waiver and the SIP at

the same time, and submitted them

together.

The SIP revision was reviewed by

EPA to determine completeness, in

accordance with the completeness

criteria referenced above. A letter dated

December 24, 1997, was forwarded to

the Governor indicating the SIP was

complete. This direct rulemaking notice

would constitute final action by EPA to

approve the SIP and NOX waiver

submissions.

10. Did EPA make an exception for

Don ̃ a Ana County Under Section

179B(a) of the Act, Because the Area

Borders Mexico?

EPA does not have to justify its

approval of the SIP under section 179B,

because the area is monitoring

attainment and has met the other

applicable nonattainment requirements

of the Act.

Section 179B(a)(2) of the Act contains

provisions under which EPA can

approve SIP revisions that meet all the

applicable requirements for a

nonattainment area, even though the

area has not achieved attainment. In

doing so, EPA must have evidence that

the failure to attain the standard is due

to the contribution of emissions

originating from outside the United

States.

In addition to authorizing waivers of

the requirement to demonstrate

attainment, section 179B(a) also allows

an area affected by emissions from

outside the United States to avoid being

reclassified or ‘‘bumped up’’ to the next

higher classification because of its

inability to demonstrate attainment.

Without such a waiver, the area would

be compelled to implement more

rigorous control requirements. The EPA

has granted such approvals in cases that

demonstrate the area would be in

attainment of a standard, but for

emissions from outside the United

States. For example, this was done for

El Paso, in approving their PM–10 SIP

(see 59 FR 2532, January 19, 1994).

When New Mexico submitted the

Don ̃ a Ana County SIP to the EPA, the

area had not yet attained the one-hour

ozone standard. Since that time, the area

has attained the standard, by

accumulating three consecutive years of

quality-assured ambient air data

showing no violations of the standard.

The most recent data provided by the

State of New Mexico, available through

the EPA Aerometric Information and

Retrieval Service (AIRS) demonstrates

that the area continues to attain the onehour standard. New Mexico has

recorded three consecutive years of

valid data in the area showing that

ozone readings meet the standard.

Since the area has been able to

demonstrate it is attaining the one-hour

ozone standard, EPA does not need to

use the flexibility allowed under section

179B at this time. Similarly, because the

area is now attaining the ozone NAAQS,

the provisions of section 179B are not

needed to insulate the area from the

possibility of reclassification. However,

the State has provided EPA with

evidence indicating that the

nonattainment area is influenced by

ozone precursor emissions from El Paso,

Texas, and Ciudad Juarez, Mexico—a

much larger metropolitan region that

continues to suffer ozone exceedences.

The State is concerned that these other

areas could affect air quality in the Don ̃ a

Ana County nonattainment area in the

future and interfere with its current

attainment status. Indeed, because the

potential for the area to fall out of

attainment due to pollution impacts

from these adjoining areas cannot be

discounted, the State has informed the

EPA that it does not intend to seek to

formally redesignate the Don ̃ a Ana

County nonattainment area to

attainment under section 107(d)(3)(e) at

this time.

Since the situation envisioned by

Congress when it enacted section 179B

is not now occurring in the Don ̃ a Ana

County nonattainment area, there is no

basis for the EPA to evaluate and/or

make a determination at this time

regarding the applicability of that

section. If the State’s fears about the

impact of regional emissions are

subsequently realized, and ozone

concentrations violate the standard, the

State will need to analyze and submit

any air quality information available in

support of their approved SIP and NOX

waiver. This information would be

necessary for the EPA to apply 179B of

the Act in this context.

II. Final Action

The EPA is approving New Mexico’s

request for approval of a revision to the

State Implementation Plan for New

Mexico. This revision is the

implementation plan for the Don ̃ a Ana

County ozone nonattainment area. The

revision contains an inventory of actual

emissions from all sources, a state

regulation requiring that sources

covered by the regulation certify the

actual emissions of NOX and VOC, and

a revised nonattainment new source

review permitting program meeting the

requirements of sections 172(c)(5) and

173 of the Act.

The EPA is also approving a waiver of

NOX control requirements, because the

area has attained the standard without

them.

The EPA is publishing this rule

without prior proposal because we view

its contents as noncontroversial and

anticipate no adverse comments,

because this action approves State

regulations in place at the State level for

some time, into the Federally approved

SIP. However, in the ‘‘Proposed Rules’’

section of today’s Federal Register

publication, we are publishing a

separate document that will serve as the

proposal to approve the SIP if adverse

comments are received. This rule will

be effective on April 9, 2002 without

further notice unless we receive adverse

comment by March 11, 2002. If EPA

receives adverse comments, we will

publish a timely withdrawal in the

Federal Register informing the public

that the rule will not take effect. We will

address all public comments in a

subsequent final rule based on the

proposed rule. We will not institute a

second comment period on this action.

Any parties interested in commenting

must do so at this time.

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order 12866,

entitled ‘‘Regulatory Planning and

Review.’’

B. Executive Order 13045

Protection of Children from

Environmental Health Risks and Safety

Federal Register / Vol. 67, No. 27 / Friday, February 8, 2002 / Rules and Regulations 6151

Risks (62 FR 19885, April 23, 1997),

applies to any rule that: (1) Is

determined to be ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

This rule is not subject to Executive

Order 13045 because it does not involve

decisions intended to mitigate

environmental health or safety risks.

C. Executive Order 13132

Federalism (64 FR 43255, August 10,

1999) revokes and replaces Executive

Orders 12612 (Federalism) and 12875

(Enhancing the Intergovernmental

Partnership). Executive Order 13132

requires EPA to develop an accountable

process to ensure ‘‘meaningful and

timely input by State and local officials

in the development of regulatory

policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’ Under

Executive Order 13132, EPA may not

issue a regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by State and local

governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This rule will not have substantial

direct effects on the States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132, because it

merely approves a state rule

implementing a federal standard, and

does not alter the relationship or the

distribution of power and

responsibilities established in the Clean

Air Act. Thus, the requirements of

section 6 of the Executive Order do not

apply to this rule.

D. Executive Order 13175

This final rule does not have tribal

implications. It will not have substantial

direct effects on tribal governments, on

the relationship between the Federal

government and Indian tribes, or on the

distribution of power and

responsibilities between the Federal

government and Indian tribes, as

specified in Executive Order 13175.

Thus, Executive Order 13175 does not

apply to this rule.

E. Executive Order 13211

This rule is not subject to Executive

Order 13211, ‘‘Actions Concerning

Regulations That Significantly Affect

Energy Supply, Distribution, or Use’’ (66

FR 28355, May 22, 2001) because it is

not a significant regulatory action under

Executive Order 12866.

F. Regulatory Flexibility

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

small governmental jurisdictions.

This rule will not have a significant

impact on a substantial number of small

entities because SIP approvals under

section 110 and subchapter I, part D of

the Clean Air Act do not create any new

requirements but simply approve

requirements that the State is already

imposing. Therefore, because the

Federal SIP approval does not create

any new requirements, I certify that this

action will not have a significant

economic impact on a substantial

number of small entities. Moreover, due

to the nature of the Federal-State

relationship under the Clean Air Act,

preparation of flexibility analysis would

constitute Federal inquiry into the

economic reasonableness of state action.

The Clean Air Act forbids EPA to base

its actions concerning SIPs on such

grounds. Union Electric Co., v. U.S.

EPA, 427 U.S. 246, 255–66 (1976); 42

U.S.C. 7410(a)(2).

G. Unfunded Mandates

Under sections 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval

action promulgated does not include a

Federal mandate that may result in

estimated costs of $100 million or more

to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action

approves pre-existing requirements

under State or local law, and imposes

no new requirements. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action.

H. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a ‘‘major rule’’ as

defined by 5 U.S.C. 804(2). This rule

will be effective April 9, 2002 unless

EPA receives adverse written comments

by March 11, 2002.

I. National Technology Transfer and

Advancement Act

Section 12 of the National Technology

Transfer and Advancement Act

(NTTAA) of 1995 requires Federal

agencies to evaluate existing technical

standards when developing a new

regulation. To comply with NTTAA,

EPA must consider and use ‘‘voluntary

consensus standards’’ (VCS) if available

and applicable when developing

programs and policies unless doing so

6152 Federal Register / Vol. 67, No. 27 / Friday, February 8, 2002 / Rules and Regulations

would be inconsistent with applicable

law or otherwise impractical.

The EPA believes that VCS are

inapplicable to this action. Today’s

action does not require the public to

perform activities conducive to the use

of VCS.

J. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by April 9, 2002.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Incorporation by reference,

Intergovernmental relations, Nitrogen

dioxide, Volatile Organic Compounds,

Ozone, Reporting and recordkeeping

requirements.

Dated: February 1, 2002.

Christine Todd Whitman,

Administrator.

Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

Subpart GG—New Mexico

2. Section 52.1620 is amended as

follows:

a. In the table in paragraph (c) entitled

‘‘EPA Approved New Mexico

Regulations’’ under the heading ‘‘New

Mexico Administrative Code (NMAC)

Title 20—Environmental Protection

Chapter 2—Air Quality’’ by revising the

entries for part 73 and part 79;

b. In the table in paragraph (e) entitled

‘‘EPA Approved Nonregulatory

Provisions and Quasi-Regulatory

Measures in the New Mexico SIP’’ by

adding to the end of the table an entry

entitled ‘‘Waiver of NOX control

requirements.’’

The revisions and addition read as

follows:

§ 52.1620 Identification of plan.

* * * * *

(c) * * *

EPA APPROVED NEW MEXICO REGULATIONS

State citation Title/subject

State approval/effective date

EPA approval date Comments

New Mexico Administrative Code (NMAC) Title 20—Environmental Protection Chapter 2—Air Quality

*******

Part 73 ..... Notice of Intent and Emmissions Inventory Requirements..10–01–97 [February 8, 2002 and FR page

number].

*******

Part 79 ..... Permits—Nonattainment Areas ......... 10–01–97 [February 8, 2002 and FR page

number].

*******

(e) * * *

EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE NEW MEXICO SIP

Name of SIP provision Applicable geographic or

nonattainment area

State submittal/effective date

EPA approval date Explanation

*******

Waiver of NOX control requirements..Don ̃a Ana County (part), marginal ozone nonattainment

area.

10–01–97 [February 8, 2002 and FR

page number].

[FR Doc. 02–3103 Filed 2–7–02; 8:45 am]

BILLING CODE 6560–50–P

EXHIBIT 6

HEARING NOTICES
NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD 

NOTICE OF PUBLIC MEETING AND STATE IMPLEMENTATION PLAN REVISION 

 

The New Mexico Environmental Improvement Board ("Board") will hold a public hearing on May 7, 2007 

at 1:00 p.m. at the Sunland Park City Council Chambers, 1000 McNutt, Sunland Park, New Mexico 88063. 

The purpose of the hearing is to consider the matter of EIB 06-18 (R), proposed revisions to the New 

Mexico State Implementation Plan (SIP) for the Sunland Park 1-Hour Ozone Nonattainment area. 

The proponent of this regulatory adoption and revision is the New Mexico Environment Department 

("NMED"). 

The purpose of the public hearing is to consider and take possible action on a petition from the New 

Mexico Environment Department (NMED) regarding proposed changes the above listed SIP. These 

proposed changes are intended to redesignate the Sunland Park 1-Hour Ozone Nonattainment area to 

attainment/maintenance status. This revision is in response to the revocation of the 1-Hour ozone National 

Ambient Air Quality Standard by the US Environmental Protection Agency. The NMED proposal includes 

a maintenance plan. The NMED will host an informational open house on the proposed Sunland Park SIP 

revisions at the Sunland Park City Council Chambers, 1000 McNutt, Sunland Park, New Mexico 88063, 

from 4:00p.m-8:00p.m on March 22, 2007. 

The proposed revisions may be reviewed during regular business hours at the NMED Air Quality Bureau 

office, 2044 Galisteo, Santa Fe, New Mexico. Full text of NMED's proposed revisions to the Sunland Park 

1-Hour Ozone SIP are available on NMED’s web site at www.nmenv.state.nm.us, or by contacting Gail 

Cooke at (505) 955-8022 or gail.cooke@state.nm.us. 

The hearing will be conducted in accordance with 20.1.1 NMAC (Rulemaking Procedures – Environmental 

Improvement Board), the Environmental Improvement Act, Section 74-1-9 NMSA 1978, the Air Quality 

Control Act Section, 74-2-6 NMSA 1978, and other applicable procedures. 

 

All interested persons will be given reasonable opportunity at the hearing to submit relevant evidence, data, 

views and arguments, orally or in writing, to introduce exhibits, and to examine witnesses. Persons 

wishing to present technical testimony must file with the Board a written notice of intent to do so. The 

notice of intent shall: 

 

(1) identify the person for whom the witness(es) will testify; 

(2) identify each technical witness that the person intends to present and state the qualifications of the 

witness, including a description of their education and work background; 

(3) summarize or include a copy of the direct testimony of each technical witness and state the anticipated 

duration of the testimony of that witness; 

(4) list and describe, or attach, each exhibit anticipated to be offered by that person at the hearing; and 

(5) attach the text of any recommended modifications to the proposed new and revised regulations. 

 

Notices of intent for the hearing must be received in the Office of the Board not later than 5:00 pm on April 

20, 2007, and should reference the docket number, EIB 06-18 (R), and the date of the hearing. Notices of 

intent to present technical testimony should be submitted to: 

Joyce Medina, Board Administrator 

Office of the Environmental Improvement Board 

Harold Runnels Building 

1190 St. Francis Dr., Room N-2150 / 2153 

Santa Fe, NM 87502 

Phone: (505) 827-2425, Fax (505) 827-2836 

Any member of the general public may testify at the hearing. No prior notification is required to present 

non-technical testimony at the hearing. Any such member may also offer exhibits in connection with his 

testimony, so long as the exhibit is not unduly repetitious of the testimony. 
A member of the general public who wishes to submit a written statement for the record, in lieu of 

providing oral testimony at the hearing, shall file the written statement prior to the hearing, or submit it at 

the hearing. 

Persons having a disability and needing help in being a part of this hearing process should contact Judy 

Bentley by April 20, 2007 at the NMED, Personnel Services Bureau, P.O. Box 26110, 1190 St. Francis 

Drive, Santa Fe, New Mexico, 87502, telephone 505-827-9872. TDY users please access her number via 

the New Mexico Relay Network at 1-800-659-8331. 

The Board may make a decision on the proposed revised regulations at the conclusion of the hearing, or the 

Board may convene a meeting after the hearing to consider action on the proposal. 
MESA DIRECTIVA PARA EL MEJORAMIENTO DEL MEDIO AMBIENTE DE NUEVO 

MEXICO DECLARACION DE AUDIENCIA PUBLICA SOBRE REGLAMENTOS 

La Mesa Directiva para el mejoramiento del Medio Ambiente de Nuevo Mexico ("Comité") tendrá una 

audiencia publica el 7 de may del 2007 a la 1 p.m. en el Sunland Park City Council Chambers, 1000 

McNutt, Sunland Park, Nuevo Mexico 88063. El propósito de la junta es considerar la importancia de EIB 

06-18 (R), revisiones propuestos del plan de implementación para el estado de Nuevo Mexico sobre el area 

de alcance por ozono. 

El defensor de la propuesta para la revisión de los reglamentos es el Departamento del Medio Ambiente de 

Nuevo Mexico (NMED). 

El propósito de esta audiencia pública es considerar la petición del NMED sobre cambios propuestos del 

plan de implementación de ozono. Estos cambios propuestos son pensados a redisignar el area de no 

alcance de Sunland Park al posición de alcance. Esta revision está en respuesta de la revocación del 

estándar de ozono de una hora. La propuesta de NMED incluye un plan de mantener. NMED tendrá una 

reunion para el público sobre las revisions en el Sunland Park City Council Chambers, 1000 McNutt, 

Sunland Park, Nuevo Mexico 88063, a las 4:00 p.m hasta las 8:00 p.m. el 22 de marzo del 2007. 

Se puede revisar las reglas propuestas durante las horas de negocio en la oficina de la Calidad de Aire de 

NMED, 2044 Gaisteo, Santa Fe, Nuevo Mexico. Texto repleto de los revisiones propuestas son disponibles 

en el sitio www.nmenv.state.nm.us. Tambien se puede contactar a Gail Cooke por teléfono (505) 955-8022 

o por correo electrónico gail.cooke@state.nm.us. 

La audiencia pública sera realizado en acuerdo de 20.1.1 NMAC (Procedimientos de Reglas – Comité para 

Mejorar el Ambiente de Nuevo Mexico), el Acto para Mejorar el Ambiente, Sección 74-1-9 NMSA 1978, 

el Acto para el Contol de la Calidad del Aire, 74-2-6 NMSA 1978, y tambien otras procedimientos 

aplicables. 

Todas personas interesadas serán dado la oportunidad a someter evidencia pertinente, datos y opinions oral 

o escrito, intoducir evidencia y examiner testigos. Las personas que desean presentar testimonio técnico 

teinen que someter una nota escrita. La nota escrita debe de: 

(1) identificar la persona para quien el (los) testigo(s) testificará(n) 

(2) identificar cada testigo técnico que la persona piensa presentar y indicar las calificaciónes del testigo 

incluyendo una descripción de su educación y trabajo. 

(3) resumir o incluyir una copia del testimonio directo de cada testigo técnico e indicar la duración 

anticipada del testimonio. 

(4) dar una descripción o incluyir cada muestra que la persona ofrecerá en la vista del público, y 

(5) incluyir el texto de cualquier modificación a las regulaciónes revisadas propuestas. 

Notificación de intención para la vista pública debe ser recibido en la oficina del Comité antes de las 5:00 

pm el 20 de abril y debe contener el número legal, EIB 06-18 (R), y la fecha de la vista. Debe de mandar 

notificación de intención para presentar testimonio técnico a: 

Joyce Medina, Board Administrator 

Office of the Environmental Improvement Board 

Harold Runnels Building 

1190 St. Francis Dr., Room N-2150 / 2153 

Santa Fe, NM 87502 

Phone: (505) 827-2425, Fax (505) 827-2836 

Cualquier miembro del gran público puede testificar en la audiencia pública. No es necesario dar 

notificación antes de presentar testimonio que no es técnico. La persona puede ofrecer muestras que 

pertenece al testimonio. 
Cualquier miembro del gran público que desea someter una declaración escrita para el registro, en vez de 

proporcionar testimonio oral en la vista, tiene que someter la declaración escrita antes de la audiencia o 

someterlo durante la audiencia. 

Las personas que tienen una incapacidad y necesitan ayuda para ser parte del proceso deben de contactar a 

Judy Bentley antes de el 20 de abril, 2007 en el NMED, Personnel Services Bureau, P.O. Box 26110, 1190 

St. Francis Drive, Santa Fe, Nuevo Mexico, 87502, teléfono 505-827-9872. Los que usan el servicio de 

“TDY” favor de conseguir el acceso de su número por el New Mexico Relay Network 1-800-659-8331. 

Es posible que el Comité tomará una decición sobre las regulaciones revisadas propuestas al conclución de 

esta audiencia pública o el Comité puede convocar una reunion despues de la audiencia para considerar 

ación sobre la propuesta. 

Favor de contactar a Thomas Ruiz por teléfono 505-647-7976 antes del 13 de abril del 2007 si usted 

necesitará servicio de traducción para esta vista. 
EXHIBIT 7

NMED RESPONSES TO EPA's COMMENTS
EIB No. 06-I8(R)

STATE OF NEW MEXICO

BEFORE THE ENVIRONMENTAL IMPROVEMENT ~.:""r>.-'-".I'"

IN THE MATTER OF PROPOSED STATE

IMPLEMENTATION MAINTENANCE PLAN FOR

THE SUNLAND PARK NATIONAL AMBIENT

AIR QUALITY STANDARD I-HOUR OZONE

NONATTAINMENT AREA

NEW MEXICO ENVIRONMENT

DEPARTMENT,

Petitioner.

NEW MEXICO ENVIRONMENT DEPARTMENT'S

SUBMISSION OF EXHIBIT 7

Pursuant to the Hearing Officer's Decision under 20.1.1.404 NMAC to allow

post-hearing submissions, the Environmental Protection Division ("Division") ofthe

New Mexico Environment Department ("Department") hereby submits Exhibit 7, the Air

Quality Bureau's Responses to EPA Comments on Draft Maintenance Plan. At hearing,

Gail Cooke ofthe Air Quality Bureau testified she created this document to summarize

the changes the Bureau made in developing the proposed Maintenance Plan in response

to comments provided by the U.S Environmental Protection Agency.

Respectfully submitted,

NEW MEXICO ENVIRONMENT DEPARTMENT

/b~.r2..--z. - jii;;-

William Grantham, Assistant General Counsel

Office of General Counsel

New Mexico Environment Department

1190 St. Francis Drive, Suite N-4050

Santa Fe, New Mexico 87505

Telephone: (505) 827-2824
EIB No. 06-18(R)

NMED Exhibit 7

Air Quality Bureau Responses

to EPA Comments on Draft Maitenance Plan

The following are New Mexico's revisions to the 8-hour Ozone Maintenance

Sunland Park, NM in response to EPA's legal review for the draft document.

Maintenance Demonstration

The Plan must project attainment for 2014. New Mexico developed a 2002 baseline year

emissions inventory but there does not appear to be a 2014 projected emissions inventory.

Projected emissions have been included.

Maintenance Plan's Date

The rationale for the choice ofthe 2009 date is unclear. What is the purpose for 20097

The plan has been changed to reflect the corrected date of2014.

Ambient Air Quality Monitoring

We will address the proposed network change in our future Federal Register action on the

Maintenance Plan submitted to EPA.

Verification of Continued Attainment

The Plan does not indicate how New Mexico intends to track the progress ofthe

Maintenance Plan. One option is to update the 2002 emissions inventory periodically.

The New Mexico Air Quality Bureau will verify the continuedprogress ofthe

maintenance plan through an interim emissions inventory report.

Contingency Plan

Trigger: It is unclear whether the State wishes the trigger to be an exceedance or a

violation ofthe standard. Either one is consistent with EPA's position. Throughout the

document, it is important to define the trigger as accurately as possible.

The trigger will be a violation, not an exceedance ofthe standard.

Enforceable commitment and Timeline: The Plan needs t6 include an enforceable

commitment that ifthe Maintenance Plan Contingency Plan is triggered, New Mexico

will implement one or more ofthe identified contingency measures as expeditiously as

practicable but no later than 24 months ofthe trigger.

The Plan now includes this enforceable commitment.

Contingency Measures: The Plan needs to list the contingency measures and clearly

specify the controls. For example, New Mexico could list a public awareness program as

one ofthe contingency measures and then discuss the specifics ofthe measure.

More detailed information on the public education program and the different

components ofthat program have been included in the plan.
AFFIDAVITS OF PUBLICATION FOR HEARING
OffiCIAL $EAl

BRANDI ZAVAlA

Notary PubliC

',9,;.0" State of New extc

MV Comm. Expires

Jib day of ---!~:"-=""..="'-L _

PROOF OF PUBLICATION

and the last publication was

HIA1h '1,'2..tD')

Lou Hendren, being duly sworn,

deposes and says that he is the

Classified Manager of the Las Cruces

Sun-News, a newspaper published

daily in the county of Dona Ana, State

of New Mexico; that the notice

3~ i'3 7 per clipping attached was

published once a week/day in regular

and entire issue ofsaid newspaper and

not in any supplement thereof for _,_

consecutive week(s),Q, the first

publication was in the issue dated

f1Cvth Y\2l!i1

Signed

Depondent further states this

newspaper is duly qualified to publish

legal notice or advertisements within

the meaning of Sec. Chapter 167,

Laws of 1937.

Subscribed and sworn before me this

STATE OF NEW MEXICO

SSe

County of Dona Ana
OfflClAl SEAL

BRANDI ZAVALA

Notary Public

.,.".0 State of New eXl9

MV Comm. Expires ;

2et]'")

PROOF OF PUBLICATION

SSe

County of Dona Ana

Lou Hendren, being duly sworn,

deposes and says that he is the

Classified Manager of the Las Cruces

Sun-News, a newspaper published

daily in the county of Dona Ana, State

of New Mexico; that the notice

3(., ~\.{ , per clipping attached was

published once a week/day in regular

and entire issue ofsaid newspaper and

not in any supplement thereof for _,_

consecutive .week(s)/~ the first

publication was in the issue dated

Hlf'lJ1 Y.'2(OI

STATE OF NEW MEXICO

Signed

Depondent further states this

newspaper is duly qualified to publish

legal notice or advertisements within

the meaning of Sec. Chapter 167,

Laws of 1937.

Subscribed and sworn before me this
PROOF OF PUBLICATION

Signed

-<jYh day of -...:H.~fAIh...=.:..-:- _

OffiCIAL SEAL

BRANDI ZAVALA

Notary PubliC

State of New exlco

My Comm, Expires .'

Lou Hendren, being duly sworn,

deposes and says that he is the

Classified Manager of the Las Cruces

Sun-News, a newspaper published

daily in the county of Dona Ana, State

of New Mexico; that the notice

7J~i') Sjper clipping attached was

published once a week/day in regular

and entire issue ofsaid newspaper and

not in any supplement thereof for _,_

consecutive week(s)~the first

publication was in ~~ue dated

H®J, '1 t

l

:;),(O'

otary Public in

D:a AD,a Coun

(£). 2010

Depondent further states this

newspaper is duly qualified to publish

legal notice or advertisements within

the meaning of Sec. Chapter 167,

Laws of 1937.

Subscribed and sworn before me this

STATE OF NEW MEXICO

ss.

County of Dona Ana
PROOF OF PUBLICATION

OFFICIAL SEAL

BRANDI ZAVALA

Notary Public

exlco

s day of ---,Vt~c01~_-

ss.

County of Dona Ana

Signed

Subscribed and sworn before me this

Depondent further states this

newspaper is duly qualified to publish

legal notice or advertisements within

the meaning of Sec. Chapter 167,

Laws of 1937.

STATE OF NEW MEXICO

Lou Hendren, being duly sworn,

deposes and says that he is the

Classified Manager of the Las Cruces

Sun-News, a newspaper published

daily in the county of Dona Ana, State

of New Mexico; that the notice

:':>t,<j1JC\ per clipping attached was

published once a week/day in regular

and entire issue of said newspaper and

not in any supplement thereof for -'

consecutive .week(s)~ the first

publication was in the issue dated

__--"Kotth....;;J4JL.>OC-Y,'A001

and the last publication was

I"'M.h y.J;U))1
Invoice Number: NMR-2007- 220

Invoice

Date:

To: Gail Cooke

-Air Qual

Galisteo St

Fe, NM 87504-

2/28/2007

COlTIlTIission of Public Records

Adnlinistrative Law Divison

1205 CmTIino Carlos Rey

Santa Fe, NM 87507-

Phone: (505) 476-7907

Fax: (505) 476-7910

Ship To (if different address):

EIB -Air Qual

2044 Galisteo St

Santa Fe, NM 87504-

SRC Authorization Phone Number Date Requested Date Shipped Shipped Via Bill To (agency code)

Bridgett Wood (505) 476-7875 2/26/2007 InterAgency 667

QI~_ •••HY Description Revenue Code Unit Price Total

Columnar inch - Notice 431902 $1.50 $31.50

Columnar inch - Other 431902 $1.50 $31.50

Subtotal $63.00

For Internal Use Only Payment Amount

Payment Method: Purchase Order Number: 66700-0000000319 Amount Due $63.00

Payment Amount:

State Records Center and Archives Please pay prolnptly to Vendor Number 0000000729 Commission Records

Form SRC-2002-03 - Revised September 2006
New Mexico Commission of Public Records

Administrative Law Division

1205 Camino Carlos Rey

Santa Fe, NM 87507

505-476-7907

Affidavit of Publication in the New Mexico Register

I certify that the agency noted below has published legal notices or rules in the New Mexico

Register, and that payment has been assessed by invoice for said legal notice or publication,

which appeared on the date and in the volume and issue nUlnber noted below.

Date of Publication: 2/28/2007

Volume: XVII Issue #: 4

Invoice #: NMR-2007- 220

Amount: $63.00

Agency:

Em -Air Qual

Contact: Gail Cooke

2044 Galisteo St

Santa Fe, NM 87504-

Description:

Notice

Other Material Other

Notice of Public Meeting

Notice of Public Meeting

~~~:~:r,-#;!:/f1;t:!-M~ -----------,--------,-------

Administrative Law Division ter 0 -.,

New Mexico Commission ofPublic Records

Notice to Publishing Agency

Date: 2/28/2007

Enclosed are your agency's proof copies ofthe legal notices or rules which were published in the New

Mexico Register. These docUlnent the fact that your Notice ofRulemaking, Proposed Rule, or

Adopted Rule has been published in the New Mexico Register.

Form SRC-2002-04
New Mexico Register / Volume XVIII, Number 4/ February 28, 2007

Notices of Rulemaking and Proposed Rules

85

NEW MEXICO

ENVIRONMENTAL

IMPROVEMENT BOARD

NEW MEXICO ENVIRONMENTAL

IMPROVEMENT BOARD

NOTICE OF PUBLIC MEETING AND

RULEMAKING HEARING

The New Mexico Environmental

Improvement Board ("Board") will hold a

public hearing on May 7, 2007 at 1:00 p.m.

at the Sunland Park City Council Chambers,

1000 McNutt, Sunland Park, New Mexico

88063. The purpose ofthe hearing is to consider the matter of EIB 06-17 (R), proposed

revisions to Air Quality Control

Regulations 20.2.99 New Mexico

Administrative Code (NMAC) (Confol111ity

to the State Implementation Plan of

Transportation Plans, Programs, and

Projects).

The proponent of this regulatory adoption

and revision is the New Mexico

Environment Department ("NMED").

The purpose ofthe public hearing is to consider and take possible action on a petition

from the NMED regarding proposed revisions to 20.2.99 NMAC. These proposed

revisions intend to incorporate required federal rulemaking to state regulations for

transportation conformity programs for

Particulate Matter 2.5 microns in size and

less (PM2.5) precursor emissions and new

conformity determinations for PM2.5

nonattainment and maintenance areas. The

NMED will host an informational open

house on the proposed revisions to 20.2.99

NMAC at the Sunland Park City Council

Chambers, 1000 McNutt, Sunland Park,

New Mexico 88063, from 4:00p.m-8:00p.m

on March 22, 2007.

The proposed revised regulations may be

reviewed during regular business hours at

the NMED Air Quality Bureau office, 2044

Galisteo, Santa Fe, New Mexico. Full text

of NMED's proposed revised regulations

are available on NMED's web site at

www.nmenv.state.nm.us. or by contacting

Gail Cooke at (505) 955-8022 or

gail.cooke@state.nm.us.

The hearing will be conducted in accordance with 20.1.1 NMAC (Rulemaking

Procedures - Environmental Improvement

Board), the Environmental Improvement

Act, Section 74-1-9 NMSA 1978, the Air

Quality Control Act Section, 74-2-6 NMSA

1978, and other applicable procedures.

All interested persons will be given reasonable opportunity at the hearing to submit

relevant evidence, data, views and arguments, orally or in writing, to introduce

exhibits, and to examine witnesses. Persons

wishing to present technical testimony must

file with the Board a written notice of intent

to do so. The notice of intent shall:

(1) identify the person for whom the witness(es) will testify;

(2) identify each technical witness that the

person intends to present and state the qualifications of the witness, including a

description of their education and work

background;

(3) summarize or include a copy of the

direct testimony of each technical witness

and state the anticipated duration ofthe testimony of that witness;

(4) list and describe, or attach, each exhibit

anticipated to be offered by that person at

the hearing; and

(5) attach the text of any reconlnlended

modifications to the proposed new and

revised regulations.

Notices of intent for the hearing must be

received in the Office of the Board not later

than 5:00 pm on April 20, 2007, and should

reference the docket number, EIB 06-17

(R), and the date of the hearing. Notices of

intent to present technical testimony should

be submitted to:

Joyce Medina, Board Administrator

Office of the Environmental Improvement

Board

Harold Runnels Building

1190 St. Francis Dr., Room N-2150 / 2153

Santa Fe, NM 87502

Phone: (505) 827-2425, Fax (505) 827-

2836

Any member of the general public may testify at the hearing. No prior notification is

required to present non-technical testimony

at the hearing. Any such member may also

offer exhibits in connection with his testimony, so long as the exhibit is not unduly

repetitious of the testimony.

A member of the general public who wishes to submit a written statement for the

record, in lieu of providing oral testimony at

the hearing, shall file the written statement

prior to the hearing, or submit it at the hearing.

Persons having a disability and needing

help in being a part of this hearing process

should contact Judy Bentley by April 20,

2007 at the NMED, Personnel Services

Bureau, PO. Box 2611 0, 1190 St. Francis

Drive, Santa Fe, New Mexico, 87502, telephone 505-827-9872. TOY users please

access her number via the New Mexico

Relay Network at 1-800-659-8331.

The Board may make a decision on the proposed revised regulations at the conclusion

of the hearing, or the Board may convene a

meeting after the hearing to consider action

on the proposal.

NEW MEXICO PUBLIC

EDUCATION

DEPARTMENT

NEW MEXICO PUBLIC EDUCATION

DEPARTMENT

The New Mexico Public Education

Department ("Department") hereby gives

notice that it will conduct public hearings as

follows regarding the proposed rulemaking

actions described below:

- Thursday, April 5, 2007, from 1:00 p.m.

to 3 p.m. in the Board Room at Las Cruces

Public School District Administrative

Office, 505 South Main, Suite 249 Loretto

Towne Centre, Las Cruces, New Mexico

88001.

- Monday, April 9, 2007, from 1p.m. to 5

p.m. in Mabry Hall at the Jerry Apodaca

Education Building, 300 Don Gaspar

Avenue, Santa Fe, New Mexico 87501.

The proposed rulemaking actions are:
New Mexico Register / Volume XVIII, Number 4/ February 28, 2007

Other Material Related to Administrative Law

135

NEW MEXICO

ENVIRONMENTAL

IMPROVEMENT BOARD

NEW MEXICO ENVIRONMENTAL

IMPROVEMENT BOARD

NOTICE OF PUBLIC MEETING AND

STATE IMPLEMENTATION PLAN

REVISION

The New Mexico Environmental

Improvement Board ("Board") will hold a

public hearing on May 7, 2007 at 1:00 p.m.

at the Sunland Park City Council Chambers,

1000 McNutt, Sunland Park, New Mexico

88063. The purpose ofthe hearing is to consider the matter ofEIB 06-18 (R), proposed

revisions to the New Mexico State

Implementation Plan (SIP) for the Sunland

Park I-Hour Ozone Nonattainment area.

The proponent of this regulatory adoption

and revision is the New Mexico

Environment Department ("NMED").

The purpose ofthe public hearing is to consider and take possible action on a petition

from the New Mexico Environment

Department (NMED) regarding proposed

changes the above listed SIP. These proposed changes are intended to redesignate

the Sunland Park I-Hour Ozone

Nonattainment area to attainment/maintenance status. This revision is in response to

the revocation ofthe I-Hour ozone National

Ambient Air Quality Standard by the US

Environmental Protection Agency. The

NMED proposal includes a maintenance

plan. The NMED will host an informational open house on the proposed Sunland Park

SIP revisions at the Sunland Park City

Council Chambers, 1000 McNutt, Sunland

Park, New Mexico 88063, from 4:00p.m8:00p.m on March 22, 2007.

The proposed revisions may be reviewed

during regular business hours at the NMED

Air Quality Bureau office, 2044 Galisteo,

Santa Fe, New Mexico. Full text of

NMED's proposed revisions to the Sunland

Park I-Hour Ozone SIP are available on

NMED's web site at

www.nmenv.state.nm.us. or by contacting

Gail Cooke at (505) 955-8022 or

gaiI.cooke@state.nm.us.

The hearing will be conducted in accordance with 20.1.1 NMAC (Rulemaking

Procedures - Environmental Improvement

Board), the Environmental Improvement

Act, Section 74-1-9 NMSA 1978, the Air

Quality Control Act Section, 74-2-6 NMSA

1978, and other applicable procedures.

All interested persons will be given reasonable opportunity at the hearing to submit

relevant evidence, data, views and arguments, orally or in writing, to introduce

exhibits, and to examine witnesses. Persons

wishing to present technical testimony must

file with the Board a written notice of intent

to do so. The notice of intent shall:

(1) identify the person for whom the witness(es) will testify;

(2) identify each technical witness that the

person intends to present and state the qualifications of the witness, including a

description of their education and work

background;

(3) summarize or include a copy of the

direct testimony of each technical witness

and state the anticipated duration of the testimony of that witness;

(4) list and describe, or attach, each exhibit

anticipated to be offered by that person at

the hearing; and

(5) attach the text of any recommended

modifications to the proposed new and

revised regulations.

Notices of intent for the hearing must be

received in the Office ofthe Board not later

than 5:00 pm on April 20,2007, and should

reference the docket number, EIB 06-18

(R), and the date of the hearing. Notices of

intent to present technical testimony should

be submitted to:

Joyce Medina, Board Administrator

Office of the Environmental Improvement

Board

Harold Runnels Building

1190 St. Francis Dr., Room N-2150 / 2153

Santa Fe, NM 87502

Phone: (505) 827-2425, Fax (505) 827-

2836

Any member of the general pubIic may testify at the hearing. No prior notification is

required to present non-technical testimony

at the hearing. Any such member may also

offer exhibits in connection with his testimony, so long as the exhibit is not unduly

repetitious of the testimony.

A member of the general public who wishes to submit a written statement for the

record, in lieu of providing oral testimony at

the hearing, shall file the written statement

prior to the hearing, or submit it at the hearing.

Persons having a disability and needing

help in being a part of this hearing process

should contact Judy Bentley by April 20,

2007 at the NMED, Personnel Services

Bureau, P.O. Box 26110, 1190 St. Francis

Drive, Santa Fe, New Mexico, 87502, telephone 505-827-9872. TOY users please

access her number via the New Mexico

Relay Network at 1-800-659-8331.

The Board may make a decision on the proposed revised regulations at the conclusion

of the hearing, or the Board may convene a

meeting after the hearing to consider action

on the proposal.

End of Other Related

Material Section
STATEMENT OF REASON FOR SUNLAND PARK

SIP REVISION ADOPTION
STATE OF NEW MEXICO

BEFORE THE ENVIRONMENTAL IMPROVEMENT BOAR]) /, '<~)

IN THE MATTER OF PROPOSED STATE

IMPLEMENTATION MAINTENANCE PLAN FOR

THE SUNLAND PARK NATIONAL AMBIENT

AIR QUALITY STANDARD I-HOUR OZONE

NONATTAINMENT AREA

NEW MEXICO ENVIRONMENT

DEPARTMENT,

Petitioner.

NEW MEXICO ENVIRONMENT DEPARTMENT'S

PROPOSED STATEMENT OF REASONS

FOR AMENDMENT OF REGULATIONS

The Environmental Protection Division ("Division") ofthe New Mexico Environment

Department ("Department") hereby submits the following Statement ofReasons for Amendment

ofRegulations in the above referenced matter:

I. STATEMENT OF REASONS

THIS MATTER comes before the New Mexico Environmental Improvement Board

("Board") upon a petition filed by the Environmental Protection Division ("Division") ofthe

New Mexico Environment Department ("NMED" or "Petitioner") proposing revisions to the

State Implementation Plan to incorporate an Ozone Maintenance Plan for the Sunland Park, New

Mexico Nonattainment Area.

Findings of Fact

1. Pursuant to 20.1.1.300 NMAC, the Division filed a petition for a public hearing to consider

the proposed adoption ofthe Sunland Park Maintenance Plan on December 15,2006.

2. The Board determined at its meeting ofJanuary 3, 2007 to hold a public hearing on the

proposal and assigned Board member Kathi Bearden as the Hearing Officer.
9. Ms. Cooke's testimony further established that: (a) the Sunland Park Nonattainment area

comprises 42 square miles and includes the communities of Sunland Park, Santa Teresa, and

La Union, (b) relative to the Paseo del Norte Airshed in which it is located, the

Nonattainment area contains only 0.1 % ofthe human population and 1.6% ofthe ozone

precursor emissions, (c) the Maintenance Plan consists of an Attainment Inventory, a

Maintenance Demonstration, a Monitoring Network, a Verification of Continued Attainment,

and a Contingency Plan, (d) these plan elements are derived from Section 175A ofthe federal

Clean Air Act, which EPA recommended using as guidance for plan development, (e) the

Maintenance Plan takes into account that ozone in the Nonattainment Area is formed

overwhelmingly from precursors emitted outside ofthe Area.

10. No other parties filed Notices ofIntent to present technical testimony.

11. No other individuals presented oral or written non-technical public comment

12. [The Board met on June 5, 2007 to receive the Hearing Officers report on the Hearing and

deliberate on the proposed regulatory changes.]

B. Conclusions of Law

13. Pursuant to NMSA 1978, Section 74-1-8(A)(4) (2000) ofthe Environmental Improvement

Act and NMSA 1978, Section 74-2-5(B)(1 )-(2) (1992) ofthe Air Quality Control Act, the

Board has the authority to adopt regulations and plans regarding air quality management.

14. Pursuant to NMSA 1978, Section 74-2-5(A), (B) and (C), the Board shall prevent or abate air

pollution, and shall adopt rules to attain and maintain ambient air quality standards and

prevent or abate air pollution.

15. Pursuant to NMSA 1978, Section 74-2-5(E)(l), the Board concludes that the amendments to

the State Implementation Plan to adopt the Sunland Park Maintenance Plan would benefit the

NMED's Proposed Statement of Reasons 06-18(R) 3

Page 3
Conclusion

Based on the information contained in the record, including the Notice ofIntent, Exhibits,

and the evidence presented at Hearing, and on the applicable law, the Bureau respectfully

requests that the Environmental Improvement Board adopt this proposed Statement of

Reasons for Amendment ofRegulations.

Respectfully submitted,

NEW MEXICO ENVIRONMENT DEPARTMENT

~-,--;?~ 7'

William Grantham, Assistant General Counsel

Office of General Counsel

New Mexico Environment Department

1190 St. Francis Drive, Suite N-4050

Santa Fe, New Mexico 87505

Telephone: (505) 827-2824

NMED's Proposed Statement of Reasons 06-18(R) 5

Page 5
HEAR RECORD FOR SUNLAND PARK, NEW MEXICO

SIP REVISION HEARING
1

2

3

4

BEFORE THE ENVIRONMENTAL IMPROVEMENT BOARD

STATE OF NEW MEXICO

1

5 IN RE EIB 06-18R:

6 PROPOSED ADOPTION IN THE

MATTER OF THE PROPOSED STATE

7 IMPLEMENTATION MAINTENANCE

PLAN FOR THE SUNLAND PARK

8 NATIONAL AMBIENT AIR QUALITY

STANDARD ONE-HOUR OZONE

9 NONATTAINMENT AREA

10

11

12

13

21 (53053)

14

15

16

17

18

19

20

22 CERTIFIED

TRANSCRIPT OF PROCEEDINGS

Monday, May 7, 2007

1:00 p.m.

City Council Chambers

Sunland Park, New Mexico

COURT COST:

23 Prepared for:

24

25

Reported by:

John Eby, CSR/RDR/CRR

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1 A P PEA RAN C E S

2 Hearing Officer:

3 Kathi Bearden, EIB Member

4 For the New Mexico Environment Department:

5 William G. Grantham

Assistant General Counsel

6 1190 St. Francis Drive

Santa Fe, New Mexico 87505

7

8

2

9

10 WITNESS:

I N D E X

PAGE:

11 GAIL COOKE

12

13

14

Examination by Mr. Grantham

Examination by Hearing Officer

CERTIFICATE OF COURT REPORTER

4

19

27

15 EXHIBIT: DESCRIPTION

16

17

18

19

20

21

22

23

24

25

NMED-l Written Testimony and Notice of Intent

NMED-2 Sunland Park Maintenance Plan

NMED-3 U.S. EPA's Phase I Rule for the

Eight-Hour Ozone Standard

NMED-4 U.S. EPA's 1995 Nonattainment

Designation for Sunland Park

NMED-5 U.S. EPA's Approval of the Sunland Park

Nonattainment State Implementation Plan

NMED-6 Notice of Public Meeting and Hearing

6

6

6

6

6

6

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1 :58:02 1 HEARING OFFICER: The hearing is now

3

2 open. This is a hearing in EIB 06-18R to consider

3 proposed adoption in the matter of the proposed state

4 implementation maint.enance plan for the Sunland Park

13:03:00 5 National Ambient Air Quality Standard One -- I don't

6 know how to say that -- Hour Zone?

7 MS. COOKE: Hour ozone.

8 HEARING OFFICER: Nonattainment Area.

9 My name is Kathi Bearden. I am the

13:03:1510 Environmental Improvement Board member who has been

11 designated as hearing officer in this matter. For the

12 record, the time is now 1:00 p.m. and we are meeting in

13 Sunland Park, New Mexico, on May 7, 2007.

14 Our usual hearing process is as follows.

13:03:3315 All testimony is taken under oath. Optional opening

16 statements. The department's witnesses testify as a

17 panel. Any cross-examination of the departments'

18 witnesses. The department's rebuttal. Other parties'

19 witnesses for nontechnical testimony only.

13:03:4820 Cross-examination of those witnesses. Rebuttal

21 testimony by these witnesses. The department may

22 recall its witnesses for rebuttal testimony. Public

23 comment. And optional closing statements.

24 Please note I will not make a final

13:04:0225 decision on the petition today. The full EIB will

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1 :04:06 1 deliberate whether to adopt, modify, or reject the

4

2 environment department's proposal at a future EIB

3 meeting.

4

13:04:17 5

6

Let us begin with the hearing.

to swear In the witnesses.

(Witnesses sworn.)

You want

7 HEARING OFFICER: Ms. Cooke.

8 MR. GRANTHAM: Madam Hearing Officer, my

9

13:04:3910

name is Bill Grantham.

environment department.

I'm an attorney with the

11 GAIL COOKE,

12 sworn by the Certified Court Reporter, testified as

13 follows:

14 EXAMINATION BY MR. GRANTHAM:

13:04:4115 Q. Ms. Cooke, please state your name for the

16 record.

17

18

19

A.

Q.

A.

My name is Gail Cooke.

And where do you work?

I work for the New Mexico Environment

13:04:4920 Department, Environmental Protection Division, Air

21 Quality Bureau.

22

23

Q.

A.

And what do you do for the air quality bureau?

I develop and review state implementation

24 plans, community initiative projects, and develop

13:05:0125 regulatory language and conduct public outreach.

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1 :05:04 1

2

Q.

A.

GAIL COOKE - 5-7-07

Examination by Mr. Grantham

And how long you have held this position?

live been with the New Mexico Environment

5

3 Department for eight years.

4

13:05:10 5

Q.

A.

What is your educational background?

I have a bachelor's of environmental design

6 from Texas A&M University, and a masterls of urban and

7 regional planning with an emphasis in environmental

8 planning from Virginia Tech University.

9 Q. And what was your involvement with the Sunland

13:05:2410 Park Maintenance Plan?

11 A. I developed the maintenance plan for the

12 Sunland Park Ozone Nonattainment Area.

13

14

Q.

A.

Can you describe your purpose at this hearing?

Madam Hearing Officer, 1 1 m here to present

13:05:3415 testimony on the department's proposed changes to the

16 New Mexico State Implementation Plan, or what I will

17 refer to as SIP, for the Sunland Park I-Hour ozone

18 Nonattainment Area. From now on, I will refer to this

19 plan as the Sunland Park SIP.

13:05:5120 A copy of the proposed changes is

21 included in the NMED Exhibit 2. From now on, I will

22

23

24

13:06:0325

refer to these proposed changes as the Sunland Park

Maintenance Plan.

The primary purpose of the Sunland Park

Maintenance Plan is to fulfill the environmental

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GAIL COOKE - 5-7-07

Examination by Mr. Grantham

Protection Agency's requirements for the transition

6

2 from the National Ambient Air Quality Standard for

3 ozone based on one-hour averaging time, or what I will

4 refer to as the one-hour ozone standard, to an ozone

13:06:18 5 National Ambient Air Quality Standard based on an

6 eight-hour averaging time, which I will refer to as the

7 eight-hour ozone standard.

8 Q. Did you submit written testimony with a notice

9 of intent to present technical testimony?

13:06:3110 A. Yes. This is included as NMED Exhibit 1.

11 Q. And did the notice include any other exhibits?

12 A. Yes, it did. The exhibits that were included

13 are NMED-2, Sunland Park Maintenance Plan; NMED-3, u.S.

14 Environmental Protection Agency's Phase I Rule for the

13:06:5015 eight-hour ozone standard; NMED-4, u.S. Environmental

16 Protection Agency's 1995 Nonattainment Designation for

17 Sunland Park; NMED-5, the u.S. Environmental Protection

18

19

13:07:1020

21

Agency's approval of the Sunland Park Nonattainment

State Implement Plan; and NMED-6, which is the notice

of public meeting and hearing.

(Exhibits marked, NMED-l THROUGH 6.)

22 MR. GRANTHAM: Madam Hearing Officer, I'd

23 like to move for admission of Exhibits NMED-l through 6

24 for the record.

13:07:1825 HEARING OFFICER: Without objection, so

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GAIL COOKE - 5-7-07

Examination by Mr. Grantham 7

2

3 Q.

MR. GRANTHAM:

(BY MR. GRANTHAM)

Thank you.

Ms. Cooke, what is ozone

4 and where does it come from?

13:07:24 5 A. Ozone is an odorless, colorless gas that's

6 composed of three atoms of oxygen. It is produced

7 naturally in trace amounts in the atmosphere. Ozone is

8 also formed when industrial, automobile, and

9 residential emissions of nitrogen oxides, volatile

13:07:4010 organic compounds, and carbon monoxide mix together in

11 the presence of heat and sunlight.

12 Ozone in the upper layers of the

13 atmosphere, or the stratosphere, is essential to screen

14 and absorb the sun's radiation. However, ozone in the

13:07:5315 lower atmosphere, or the troposphere, can produce

16 harmful health effects.

17

18

Q.

A.

And how is ground level ozone regulated?

The Clean Air Act requires the Environmental

19

13:08:0720

21

Protection Agency to set national ambient air quality

standards that provide an adequate margin of safety for

pollutants considered harmful to public health and the

22 environment. Presently there are six ambient air

23 quality standards. They are for lead, sulfur dioxide,

24 nitrogen oxides, particulate matter, carbon monoxide,

13:08:2425 and ozone.

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1 :08:25 1 Q.

GAIL COOKE - 5-7-07

Examination by Mr. Grantham

When was the national ambient air quality

8

2 standard for ozone last update?

3 A. The Clear Air Act requires that these national

4 ambient air quality standards be updated every five

13:08:36 5 years. In 1997, the Environmental Protection Agency

6 implemented a new standard for ozone pollution. The

7 new standard is based on an eight-hour average of .084

8 parts per million rather than the old national ambient

9 air quality standard that was based on a one-hour

13:08:5210

11

average of .12 parts per million.

And what parts per million, basically,

12 is, is one part of something in one million parts of

13 something else. So it's kind of like a grain of salt

14

13:09:0615

in a million grains of sugar type of thing.

But due to the ongoing litigation for the

16 new eight-hour ozone standard, it did not go into

17 effect until April 30, 2004.

18 Q. What was the status of the Sunland Park area

19 under the one-hour standard?

13:09:1920 A. Sunland Park was officially designated by the

21 Environmental Protection Agency as Nonattainment for

22 the one-hour standard in a Federal Register notice

23

24

announcement published on June 12, 1995.

Exhibit 4.

This is NMED

13:09:3425 Sunland Park was designated as a marginal

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2

GALL COOKE - 5-7-07

Examination by Mr. Grantham

nonattainment arear which is the lowest r or least

serious r classification under the Clean Air Act The

9

3 Sunland Park SIP was submitted to the Environmental

4 Protection Agency in 1997. The Sunland Park SIP was

13:09:49 5 approved by the Environmental Protection Agency on

6 February 8, 2002. This is NMED Exhibit 5.

7

8

Q.

A.

Can you explain what a nonattainment area is?

This is an area that 1S designated or it has

9 exceeded or is out of compliance with one of the six

13:10:0510 national ambient air quality standards. It basically

11 has high levels that go above what the federal

12 government deems to be healthy for people to breathe on

13 a regular basis.

14 And they have six National Ambient Air

13:10:2015 Quality Standards r and ozone is one of these National

16 Ambient Air Quality Standards.

17 Q. What area is included in the Sunland Park

18 Nonattainment Area?

19 A. The Sunland Park ozone nonattainment area

13:10:3320

21

includes in communities, from south to north, of

Sunland Park, Santa Teresa, La Union, New Mexico. The

22 nonattainment area is approximately 42 square miles in

23 area. The area is largely rural with a small

24 population, predominantly agricultural land use along

13:10:4925 the Rio Grander especially north of Santa Teresa.

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1 :10:53 1 Q.

GAIL COOKE - 5-7-07

Examination by Mr. Grantham

How did EPA provide for the transition from

10

2 the one-hour ozone standard to the new eight-hour

3 standard?

4 A. On June IS, 2004, the one-hour ozone standard

13:11:04 5 was revoked by the environmental protection agency due

6 to the revocation of the one-hour standard. The

7

8

9

13:11:1910

Environmental Protection Agency removed the one-hour

designation and classifications for all one-hour

nonattainment areas.

An implementation rule for the new

11 eight-hour ozone standard was published in the Federal

12 Register on April 30, 2004. This Federal Register

13 notice for this rule is included in NMED Exhibit 3. At

14 the same time, the Environmental Protection Agency also

13:11:3415

16

17

published the eight-hour ozone designation for all

areas of the country.

The eight-hour designations became

18 effective on June IS, 2004. As part of this action,

19 all areas that were in nonattainment for the one-hour

13:11:4820 standard, but in attainment for the ne~ eight-hour

21 standard for ozone were redesignated to attainment

22 status, which means they are now in compliance with the

23 requirements of the eight-hour ozone standard. And

24 Sunland Park was one of these areas.

13:12:0625 To ensure that those redesignated areas

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GAIL COOKE - 5~7-07

Examination by Mr. Grantham

would stay ln compliance with the new eight-hour

11

2 standards, states were required by EPA to develop a

3 maintenance plan that would comply with the

4 requirements of the Section 110(a) (1) of the Clean Air

13:12:19 5 Act, using Section 175A of the Clean Air Act as a

6 guidance for developing the plan.

7 The maintenance plan is due to the

8 Environmental Protection Agency within three years of

9 the revocation of the one-hour ozone standard, which

13:12:3110 would be June 15, 2007.

11 Q. What is the status of the Sunland Park area

12 now that EPA has replaced the one-hour ozone standard

13 with an eight-hour standard?

14 A. Sunland Park is one of the few areas, as I

13:12:4615 mentioned earlier, in the United States that was

16 nonattainment for the revoked one-hour standard but in

17 compliance with the new eight-hour standard. Because

18 at the time of the revocation of the one-hour standard,

19 ozone .monitoring data for the previous three years of

13:13:0020 2002, 2003, 2004 showed no exceedances of the new

21 eight-hour standard, Sunland Park was redesignated as

22 attainment for eight-hour standard.

23 The one-hour standard is no longer

24 applicable since it was revoked nationwide by the

13:13:1525 Environmental Protection Agency. However, because

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GAIL COOKE - 5-7-07

Examination .by Mr. Grantham 12

1 :13:17 1 Sunland Park was in nonattainment for one-hour standard

2 at the time the standard was revoked, under the

3 transition scheme established by the Environmental

4 Protection Agency, a maintenance plan is required for

13:13:29 5 Sunland Park area.

6 The purpose of the Sunland Park

7 maintenance plan is to outline what the current

8 emissions are and how the area will comply with the new

9 eight-hour ozone standard.

13:13:4110 Q. What are the components of the proposed

11 maintenance plan for the Sunland Park area?

12 A. There are five different components. They

13 include attainment inventory, maintenance

14 demonstration, monitoring network, verification of

13:13:5315 continued attainment, and contingency plan.

16 Q. What kind of information is contained ln the

17 attainment inventory?

18 A. As part of a maintenance plan, a state must

19 develop an attainment emissions inventory to identify

13:14:0720 the level of emissions in an area at the time of

21 attainment. For the Sunland Park nonattainment area,

22

23

24

13:14:2025

the attainment inventory uses the base year of 2002,

which is the base year used by most states developing

similar maintenance plans.

The Environmental Protection Agency's

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GAIL COOKE - 5-7-07

Examination by Mr. Grantham

emissions inventory improvement program guidance

13

2 document was used as a guide in developing the 2002

3 emissions inventory for the Sunland Park nonattainment

4 area. The Sunland Park inventory includes emissions

13:14:35 5

6

for area, point, mobile, and biogenic sources.

The point, mobile, and biogenic sources

7 were identified through the use of Environmental

8 Protection Agency and New Mexico Environment Department

9 databases, area sources. And when I say area sources,

13:14:5110 1 1 m talking smaller sources nonpermanent, like gas

11 stations or like dry cleaners, those type of sources.

12 Area sources within the nonattainment

13 area, including sources within a one-mile area of the

14 nonattainment area, were surveyed using a questionnaire

13:15:0815 during a site visit to the Sunland Park nonattainment

16 area. The questionnaire is included as part of NMED

17 Exhibit 2 and Appendix I. The survey was conducted in

18 the summer of 2004.

19 Q. The second component you listed was the

13:15:2220 maintenance demonstration. How does the department

21 propose to make this demonstration?

22 A. The Clear Air Act requires an area to either

23

24

13:15:3725

show that future emissions of a pollutant or its

precursors will not exceed the attainment inventory

developed for the area or provide modeling to show that

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GAIL COOKE - 5-7-07

Examination by Mr. Grantham

future sources and emissions will not cause an

14

2 exceedance of the National Ambient Air Quality

3 Standard.

4

13:15:47 5

The Sunland Park nonattainment area is

located in the border region of New Mexico and adjacent

6 to the City of EI Paso, Texas, and Ciudad Juarez,

7 Mexico, or what is commonly referred to as the Paso Del

8 Norte Airshed. The airshed has a combined population

9 of over 1.7 million people and increasing industrial

13:16:0610

11

12

13

14

13:16:2215

16

17

18

sources along both sides of the border.

The Sunland Park nonattainment area makes

up less than .1 percent of the total population within

the Paso Del Norte Airshed and contributes only

1.6 percent of the total volatile organic compounds,

carbon monoxide and nitrogen oxide emissions in the

airshed.

Due to the limited amount of pollutants

generated within the Sunland Park nonattainment area

19 itself, New Mexico finds it impossible to base a

13:16:3420

21

22

demonstration of maintenance for area on the limited

emissions within the Sunland Park nonattainment area.

In light of this, we have proposed an

23 alternative approach to EPA. New Mexico will

24

13:16:4725

demonstrate the continued maintenance of the eight-hour

ozone standard in the Sunland Park nonattainment area

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GATL COOKE - 5-7-07

Examination by Mr. Grantham

through the use of cooperative efforts with the state

15

2 of Texas and Mexico and current permitting requirements

3 for point sources within the nonattainment area.

4 Q. The third component you listed was monitoring.

13:17:02 5 What does the department propose for the monitoring

6 network?

7 A. The environment department will continue to

8 use the current.ozone monitoring network already

9

13:17:1410

established in the Sunland park nonattainment area to

verify attainment of the National Ambient Air Quality

11 standard. The monitoring network is in accordance with

12 the Environmental Protection Agency's requirements

13 listed under 40 CFR part 58.

14 Q. How does the department propose to verify

13:17:2815 continued attainment?

16 A. To guarantee that attainment will continue in

17 the future, the states need to ensure that they have

18 the legal authority to implement and enforce all air

19 quality measures needed to attain and maintain the

13:17:4020 eight-hour ozone standard. The New Mexico Environment

21 Department's authority to issue permits verifies that

22 New Mexico has the continued legal authority needed to

23 implement and enforce air quality controls to maintain

24 the National Ambient Air Quality Standard for ozone in

13:17:5525 Sunland Park in the future.

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GAIL COOKE - 5-7-07

Examination by Mr. Grantham

New Mexico will also provide the

16

2 Environmental Protection Agency with an interim

3 emissions inventory report of point, area, mobile, and

4 biogenic emission sources for VOCs and CO in the

13:18:10 5 Sunland Park maintenance area.

6 Q. And finally, the fifth component, what is the

7 proposed contingency plan?

8 A. As a requirement of section 175A of the Clean

9 Air Act, a contingency plan must be dev~loped to

13:18:2410 correct any violations of the eight-hour ozone standard

11 in Sunland Park, Santa Teresa, and La Union after the

12 area has been redesignated. The plan should be an

13 enforceable part of the state implementation and should

14 ensure that appropriate measures will be adopt~d in the

13:18:3815

16

event that the eight-hour ozone standard 1S exceeded.

As stated earlier, New Mexico has very

17 little control over a majority of the ozone emissions

18 1n the Paso Del Norte Airshed, thus making it difficult

19

13:18:5420

21

22

23

24

13:19:0425

to provide contingency measures in any future

violations of eight-hour ozone standard in the Sunland

Park area.

Although New Mexico does have little

control over the emissions within the airshed,

education and outreach will be developed as a means

protecting public health if there are any future

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GAIL COOKE - 5-7-07

Examination by Mr. Grantham

violations of the eight-hour ozone standard. We have

17

2 used similar outreach programs for dust storms in Dona

3 Ana County.

4 Q. Did the US EPA review and provide comment on

13:19:19 5 the elements of the proposed maintenance plan?

6

7

A.

Q.

Yes, they did.

And did you take those comments into

8 consideration in developing the plan?

9

13:19:2610

A.

Q.

Yes, I did.

And did you develop a document that explains

11 the changes made to the preposed plan in response to

12 the EPA's comments?

13

14

A. Yes, I did.

MR. GRANTHAM: Madam Hearing Officer, I

13:19:3715

16

17

would like at the conclusion of the hearing to request

that you keep the record open for two weeks in order to

provide opportunity for a proposed statement of reasons

18 from the department. And should you do so, I just want

19

13:19:5520

to let you know we would also submit the document that

the witness has just described as NMED-7.

21 Q. What is the deadline for submission of this

22 maintenance plan?

23 A. The Clean Air Act Section 110 (a) (1) requires

24

13:20:1125

that states submit state implementation plans to the

Environmental Protection Agency within three years of

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GAIL COOKE - 5-7-07

Examination by Mr. Grantham 18

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the promulgation of the new National Ambient Air

Quality Standard.

The Environmental Protection Agency

started the three-year clock running for the new

ei~ht-hour ozone standard with a revocation of the

one-hour ozone standard, which would make the deadline

June 15, 2007.

Q. Did the air quality bureau provide a public

comment period for the citizens of the State of New

Mexico?

A. Yes.

Q. Could you please explain when and how that was

conducted?

A. According to the ErB rule-making regulations,

notices are required to be published in a newspaper of

16 general circulation and the New Mexico Register, which

17 was done. The notice was published in the Las Cruces

18 Sun, the New Mexico Register, and posted at the Sunland

19

13:20:5420

Park city office.

The notice was published in English and

21 Spanish. Both the English and Spanish public notices

22 are included in NMED Exhibit 6.

23 Q. And did you receive any public comment from

24 the notices?

13:21:0525 A. No.

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1 :21:06 1 Q.

GAIL COOKE - 5-7-07

Examination by Mr. Grantham

Were any public meetings held?

19

2 A. Yes. An open house was held at the Sunland

3 Park City Council Chambers on March 22, 2007. One

4 person showed up and did not have any comments.

13:21:18 5 Q. What is the consequence if the state does not

6 submit the maintenance plan to EPA by the deadline?

7 A. Sanctions could be imposed by the

8 Environmental Protection Agency if the Sunland Park

9 maintenance plan is not submitted by the June 15, 2007

13:21:3210

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12

deadline.

Q.

A.

And what could those sanctions include?

Decrease in air grant funding.

13 MR. GRANTHAM: Unless you have any

14 additional statements, I have no more questions.

13:21:4615

16 statements.

THE WITNESS: I have no other comments or

17 HEARING OFFICER: 1 1 m sorry. I didn't

18 ask if you had an optional opening statement.

19 MR. GRANTHAM: I did not.

13:21:5520 HEARING OFFICER: Okay. Thank you.

21 Cross-examination, since there 1S no one who is here

22 besides myself, I'll go ahead and ask my questions.

23 MS. COOKE: Okay.

24 EXAMINATION BY HEARING OFFICER:

13:22:0825 Q. I want to be sure that I understand correctly

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GAIL COOKE - 5-7-07

Examination by Hearing Officer

that Sunland Park, basically, fell short on the

20

2 one-hour ozone. And since that time, EPA has removed

3 the one-hour, so it's been moved to the eight-hour

4 ozone level?

13:22:23 5

6

A.

Q.

Yes.

But because it failed to meet the original,

7 that's why we're here today to submit this plan?

8 A. That's why we're here today, yes. Basically,

9 what happened was -- actually it wa~ towards the early

13:22:3710 to mid-'90s, we noticed that there were high levels for

11 the one-hour standard, and that's when the area was

12 designated nonattainment for the one-hour standard.

13 And then in '97, they put in place the

14 new eight-hour standard, which was a more stringent

13:22:4815 standard, which was the reason that they revised it.

16 But due to litigation, as I said in my testimony, it

17 took seven years before it actually was able to be put

18 into place and have the one-hour standard revoked.

19 But one thing about Sunland Park is that

13:23:0520 from '95 on, in fact, around, I think, '99, we actually

21 started not having exceedances of the one-hour

22 standard. They really started stabilizing towards the

23 late '90s, around 2000, 2001. So we actually were not

24 having as many problems with the one-hour standard.

13:23:2525 But it was very rare for an area to be in

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GAIL COOKE - 5-7-07

Examination by Hearing Officer

nonattainment for one-hour standard and ln attainment

21

2 for the eight-hour standard. There were only a handful

3 of communities, EI Paso being one and Sunland Park

4 being another. And, like I said, I think there may

13:23:38 5 have been one in Texas, but it was pretty rare. That

6 really didn't happen.

7 Q. Since we've submitted this plan, based on that

8 history, how long is the plan good for?

9 A. 10 years.

13:23:5210

11

Q. I think that was in there, but I ...

The base year emission inventory is based

12 on all actual emissions, the area, which you explained.

13 The point, mobile, and biogenic, can you very quickly

14 tell me what each of those are? You said they were

13:24:1615 databases, and I'm not sure I understand where that

16 information comes from.

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A.

Q.

A.

There is actually an exhibit that --

Exhibit 2, maybe?

Actually it's part of NMED Exhibit 2, and it

13:24:2820 talks about where I got all of the data from. And it's

21 the very last appendix, which would be appendix, I

22 think --

23 Q. I think it was I when you testified.

24 A. No, it wasn't I, it was J. And I actually

13:24:4125 don't have those because they are not disk that I gave

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GAIL COOKE - 5 - 7 - 0 7

Examination by Hearing Officer

But those should be -- that is actually, I think

22

2 it 1S appendix J.

3 Q. And it's on the disk, so I can look that up?

4 A. Yes, and you can look it up. And it actually

13:24:50 5 explains, for each of the inventories that I did, for

6 the point, for the mobile, all of that, it explains

7 where I got the information from. And some of them

8 some of the information was from NMED, the NMED

9 database Tempo, which 1 1 m not sure if you've heard

13:25:0610

11

about, and that was more of the point sources.

And then, for the mobile sources, they

12 actually have a national environmental -- sorry -- a

13 national emissions inventory that EPA does, and that

14 data came from that, as well as a lot of the biogenics.

13:25:1815 But, like I said, it's laid out in that table, in that

16 matrix.

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13:25:3220

Q.

A.

Q.

And we can look that up under J.

Yes.

Just so I can get that information.

You explained that one about being in and

21 out of attainment.

22 On the Paso Del Norte Airshed, do we know

23 what their ozone is? Do we follow that as a state

24 agency?

13:25:4325 A. We actually are in a group called the Paso Del

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GAIL COOKE - 5-7-07

Examination by Hearing Officer

Norte Joint Advisory Committee, which meets quarterly,

23

2 and we are given information on data from both sides of

3 the border, from New Mexico, from Texas, and Ciudad

4 Juarez. So, yeah, we actually have -- pretty

13:26:00 5 regularly, we get data from this group.

6 Q. I just wanted to make sure there was some way

7 that we could get that information without having to go

8 find it every time somebody ran a test.

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13:26:2010

A.

Q.

No.

You testified that the department will provide

11 EPA with an interim emissions inventory report for the

12 point, area, mobile, and biogenic emissions. I

13 understand better now because a lot of it 1S database.

14 But how will we provide the EPA with that interim

13:26:3515 emissions? will it be by the same path that you

16 followed initially?

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A.

Q.

A.

Q.

A.

Q.

Yes.

So an interim is doing the same work?

Pretty much, yes.

Just proving that it has improved?

Yes.

Do we know what the population is for this

23 area of Sunland Park, including the other two cities?

24 A. It was -- in the inventory fOr 2002, it was

13:27:1725 around 16,000.

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GAIL COOKE - 5-7-07

Examination by Hear1ng Officer 24

1 :27:22 1

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Q.

A.

Q.

The square miles, it may be on the disk, too?

It's 42 square miles.

That was in the testimony, but not the actual

4 number of people.

13:27:30 5

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A.

Q.

Yes.

The only other question I had -- and Bill, you

7 may be able to answer this -- on the public meeting

8 that was held on March 22 and there was one person, did

9 we submit that with the notice of public meetings and

13:27:4510 hearings, did we submit who that person was? It may

11 not be mandatory.

12 MR. GRANTHAM: No, I don't believe that

13 person was identified, and nothing requires that.

14 HEARING OFFICER: Okay. I just wanted to

13:27:5615 be sure if they had a chance to sign up or speak, they

16 had that. You testified to that, but I wanted to be

17 sure it was 1n there.

18 MS. COOKE: Well, they actually showed up

19 thinking it was for something -- they knew it was air

13:28:0820

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quality, but they thought it was

HEARING OFFICER: So there was no public

22 comment whatsoever on air quality at that meeting?

23 MS. COOKE: No.

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13:28:1525

HEARING OFFICER:

That's all the questions I have.

Okay, thank you.

Department's

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1 :28:17 1 rebuttal?

GAIL COOKE - 5-7-07

Examination by Hearing Officer 25

2 MR. GRANTHAM: We have no rebuttal or

3 closing statement.

4 HEARING OFFICER: Okay. Public comment.

13:28:28 5 Seeing none in the audience, do you have a closing

6 statement?

7

8 I do not.

MR. GRANTHAM: No, Madam Hearing Officer,

9 HEARING OFFICER: Okay. As I said

13:28:3710 earlier, we will not make a final decision on the

11 petition today. The full environmental board will

12 deliberate whether to adopt, modify, or reject the

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13:28:5015

environment department's proposal at a future

Environmental Improvement Board meeting.

I will leave the record open for two

16 weeks. I'm not sure, on the seventh exhibit, how that

17 will be placed in the public record and given to all

18 the commissioners. Bill, do you know?

19 MR. GRANTHAM: We would submit that, as

13:29:0720

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with any other pleading, with the clerk for

distribution.

22 HEARING OFFICER: Okay.

23 And any other matters?

24 MS. COOKE: No, not right now.

13:29:2725 HEARING OFFICER: Then this hearing is

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GAIL COOKE - 5-7-07

Examination by Hearing Officer

(Proceedings concluded at 1:29 p.m.)

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CERTIFICATE

I, John M. Eby, Jr., Certified Shorthand

27

4 Reporter ln and for the State of Texas, do hereby

5 certify that the above and foregoing contains a true

6 and correct record, produced to the best of my ability

7 via machine shorthand and computer-aided transcription,

8 of the proceedings had in this matter.

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Certified to on May 17, 2007.

~~~~-~------------ John M. Eby, Jr.

Certificate o. 167

Expires 12-31-2007

(53053)

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