Bill Richardson Governor . ','

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# of the Governor May 2, 2007

MayorRichard Greene Regional Administrator 

## u.s. Environmental Protection Agency, Region 6 1445 Ross Avenue Dallas, Texas 75202-2733 DearMayor Greene: Onbehalfofthe New Mexico EnvironmentDepartment, I ampleasedto submitto the Environmental Protection Agencythe enclosed amendmentto the New Mexico State Implementation Plan (SIP). This amendmentincludes revisions to the 

### SunlandPark Ozone NonattainmentArea SIP. The hearing record for this SIP revision is attached, which includes the hearing transcript, exhibits, public notices, affidavits ofpublication, notice ofintentto testify, andpublic comments. Ifthere are any questions concerning this SIP submittal, please contactMary 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 MaryUbI, NMED, Air QualityBureau Chief

State Capitol • Room400 • SantaFe, New Mexico 87501 • 505-476-2200 • www.govemor.state.nm.us

## NOTICE OFINTENT TO PRESENT TECHNICAL TESTIMONY

### STATE OFNEW 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

Pursuantto 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. ( TheNew Mexico Environment Department, Environmental ProtectionDivision. 2. The name and qualifications ofeach technical witness. Gail Cooke. Ms. Cooke is a Supervisorin the Control Strategies Section ofthe Air Quality Bureau. She has worked in the Air Quality Bureau since June 1999. Ms. Cooke holds a bachelordegree in Environmental Design from Texas A&M University and amaster degree in Urban and Regional Planning from Virginia Tech. 3. Summary and Estimated Duration ofTestimony Ms. Cooke's written testimony is attached as NMED Exhibit 1. Ms. Cooke will testify that a state implementation maintenance plan forthe Sunland Park I-hour ozone nonattainment

area should be adopted. SunlandPark was redesignated to attainment for the new 8-hourozone National Ambient Air Quality Standard (NAAQS) on June 15,2004by the U.S Environmental Protection Agency (EPA). To ensure**th~t** 

### Sunland Park will continue to maintainthe 8-hour Notice ofIntentPage 1 of3

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### oz'<lmeJi'JAAQS, EPA has required that the State ofNew Mexico submit a maintenance plan for the SunlandPark 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 ofRecommended Modifications to the Proposed Regulatory Change The Divisionrecommends the Sunland Park Maintenance Plan as proposed inthe petition ofJanuary 2, 2007. 5. List and Description ofExhibits The Division submits the following exhibits: ExhibitNumber NMED 1 NMED2 NMED3

NMED4
NMED5

NMED6 Title ofExhibit Written Testimony ofGail Cooke Sunland Park Maintenance Plan U.S. Environmental Protection Agency's Phase I Rule forthe 8-Hour Ozone Standard U.S. Environmental Protection Agency's 1995 NonattainmentDesignation for Sunland Park U.S. Environmental Protection Agency's Approval ofthe SunlandPark Nonattainment State ImplementationPlan Notice ofPublic Meeting and Hearing /



### 7. Reservation ofRights This Notice ofIntent to Present Technical Testimony is based on the Division's petition. The Division reserves the right to call any person to testify andto present any exhibit in response Notice ofIntent Page 2 of3

# r 

# c.

( to anothernotice ofintent orpublic commentfiled in this matter orto any testimony or exhibit offered atthe public hearing. The Division also reserves the rightto call any person as arebuttal witness and to present any exhibit in supportthereof. Respectfully submitted, NEW MEXICO ENVIRONMENTDEPARTMENT OFFICE OF GENERAL COUNSEL

Bill Grantham Assistant General Counsel New Mexico EnvironmentDepartment 1190 St. Francis Drive SantaFe, New Mexico 87502-6110 Telephone (505)-827-2824 Facsimile (505) 827-1628

Notice ofIntent Page 3 of3

## EXHIBIT 

# 1 TESTIMONYCOOKE 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 TexasA&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 isincluded as NMED Exhibit 2 From now on, I will refer to these proposed changesas 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 aneight 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 designationsfor 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 ozoneNAAQS would no longer apply for an area one year following the effective date of the area'sdesignation for the 8-hour ozone NAAQS. As part of this action, all areas that werein 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 incompliance 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 federalClean Act Section 110(a)(1). This plan isCOOKE 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 inUnited 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 outlinewhat 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 sunlightreact 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 hotweather of summer months. EPA considers an area to be attainmentfor the 1-hour ozone NAAQS of 120 parts per billion (ppb) if the 1-hour exposure is notexceeded 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 asnonattainment 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 1995base year inventory was conducted for Sunland Park, a total of 12exceedances 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 islocated 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 ruralwith a small population and predominately agricultural land use alongthe Rio Grande, especiallynorth of Santa Teresa.COOKE TESTIMONY - PAGE 3 

### A SIP for the Sunland Park OzoneNonattainment area was submitted to the EPA in 1997. The SIP for Sunland Park included a requestfor a NOx waiver. The requirements for a NOx waiver are found under Section 182(f) ofthe 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 withoutthe reduction of NOx emissions a waiver can be issued. The Sunland Park SIP and the NOxwaiver 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, wereeither 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 areathat 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

1This rule was called the “phase 1” rule because itaddressed 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 requiredas part of the emissions inventory, due to the NOx waiver, the Department includedit 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 isprovided in NMED Exhibit 2. 2. Maintenance Demonstration To demonstrate maintenance of the NAAQSfor 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 forthe 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 Teresaare 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 NorteAirshed. In today's proposal, it was determined that the sources in SunlandPark, 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 airquality 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 touse the current ozone monitoring network already established in the Sunland Park OzoneNonattainment 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 continuedin 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. Thedepartment has legal authority to enforce air quality regulations at thissource and has issued it a permit with appropriate conditions to ensure compliance. The Department willalso provide the EPA with an interim emissions inventory report for point, area,mobile and biogenic emissions of VOCs andCOOKE 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 inSunland 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 theNAAQS are exceeded for ozone. New Mexico has very little to no controlover 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-hourNAAQS 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 ozoneNAAQS. 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-HoUROZONE MAINTENANCE PLANFORTHE SUNLAND PARK, NEWMEXICO 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 RULEFederal 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

1This 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

1This 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 athttp://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 Quality23952 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 atsilvasi.john@epa.govor 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 atgerth.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 underlyingFederal 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, 2004.2Our 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.

1Section 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.

2American 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.3In 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.

3We 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.4Any 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.

4In 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 DESIGNATIONDesignation ofArea for Air Quality Planning Purposes; New Mexico; Designation ofSlill... Page 1 of5


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# I m!1**r;E'AJ:JQm~** > EeOeraLRegisteJ > FR Years> FR Months> ER_QaYs > FR DailY> Designation ofArea for Air Quality Planning Purposes; New Mexico; Designation of Sunland Park Ozone NonaUainment Area 

# Designation ofArea 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 http://www.epa.gov/cgi-binJepaprintonly.cgi 4/17/2007Designation ofArea for Air Quality Planning Purposes; New Mexico; Designation ofSun... Page 4 of5
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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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 ofthis page at: httJ:r//www.epa.ggv/fec:!Igstr/EPA-AIR/1995/June/Day-.:.L2lpr-732.html

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## EXHIBITS SUNLAND PARK, NEWMEXICO NONATTAINMENTAREA EPA SIPApPROVAL

### 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


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 andother 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


1 See 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 aMotor 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 NO X 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 NOXby 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 NO X 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 NO X 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 NO X 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


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) demonstratesthat 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


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 section205, 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


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 REGULATIONSState 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 NOTICESNEW 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 hearingis 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 whomthe 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 ofthe direct testimony ofeach technical witness and state the anticipated duration of the testimony of that witness; (4) list and describe, or attach, eachexhibit anticipated to be offered bythat 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 inthe 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 thewritten 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 usersplease 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 dealcance. 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. Textorepleto de los revisiones propuestas son disponibles en el sitiowww.nmenv.state.nm.us. Tambien se puede contactar a Gail Cooke por teléfono (505) 955-8022 o por correo electrónicogail.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 desu educacióny 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 regulaciónesrevisadas propuestas. Notificación de intención para la vista pública debe serrecibido 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 parapresentar 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 testificaren la audiencia pública. No es necesario dar notificación antes de presentar testimonio que no estécnico. 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 ayudapara 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 númeropor el New Mexico Relay Network 1-800-659-8331. Es posible que el Comité tomará unadecición 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 Pursuantto the Hearing Officer's Decisionunder 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 onDraftMaintenance Plan. Athearing, Gail Cooke ofthe Air Quality Bureautestified she created this documentto summarize the changes the Bureau made in developing the proposed Maintenance Plan inresponse 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 ofGeneral Counsel New Mexico Environment Department 1190 St. Francis Drive, SuiteN-4050 SantaFe, New Mexico 87505 Telephone: (505) 827-2824

### EIB No. 06-18(R) NMED Exhibit7 Air Quality Bureau Responses to EPA Comments on DraftMaitenance 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 mustproject attainment for 2014. New Mexico developed a 2002 baseline year emissions inventory butthere does not appearto be a 2014 projected emissions inventory. 

### Projectedemissions have been included. Maintenance Plan's Date The rationale for the choice ofthe 2009 date is unclear. What is the purpose for 20097 

### Theplan has been changedto reflectthe correcteddate of 2014. AmbientAir Quality Monitoring We will address the proposed network change in ourfuture Federal Register action onthe Maintenance Plan submitted to EPA. 

### Verification ofContinued Attainment The Plan does not indicate howNew Mexico intends to trackthe progress ofthe Maintenance Plan. One option is to update the 2002 emissions inventory periodically. 

### TheNewMexicoAir QualityBureau willverify the continuedprogress of the maintenanceplan through an interim emissions inventory report. Contingency Plan Trigger: It 

### is unclear whetherthe State wishes the triggerto be an exceedance or a violation ofthe standard. Either one is consistent withEPA's position. Throughoutthe document, it is importantto define the trigger as accurately as possible. 

### The triggerwillbe a violation, notan exceedance of thestandard. Enforceable commitment and Timeline: The Plan needs t6 include an enforceable commitmentthat ifthe Maintenance Plan Contingency Plan is triggered, New Mexico will implement one ormore 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 listthe contingency measures and clearly specify the controls. For example, New Mexico could list apublic awareness program as one ofthe contingency measures and then discuss the specifics ofthe measure. 

### More detailedinformation on thepublic educationprogram andthe different components of thatprogram have been includedin theplan.

## AFFIDAVITS OFPUBLICATIONFORHEARINGOffiCIAL $EAl BRANDI ZAVAlA Notary PubliC ',9,;.0" State of New extc

MV Comm. Expires 

# Jib day of

### ---!~:"-=""..="'-L _ PROOF OFPUBLICATION

and the last publication was 

## HIA1h '1,'2..tD') Lou Hendren, being duly sworn, deposes and says that he is the Classified Manager ofthe Las Cruces Sun-News, a newspaper published daily in the county of Dona Ana, State of New Mexico; that the notice**3~** 

## i'37 per clipping attached was published once a week/day in regular and entire issue ofsaid newspaper and not in any supplementthereoffor _,_ 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 of1937.

Subscribed and sworn before me this STATE OF NEW MEXICO SSe County ofDona AnaOfflClAl SEAL BRANDI ZAVALA

Notary Public .,.".0 State of New eXl9

MV Comm. Expires ; 

## 2et]'") PROOF OF PUBLICATION

SSe County ofDona Ana Lou Hendren, being duly sworn, deposes and says that he is the Classified Manager ofthe 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 supplementthereoffor _,_ 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 of1937.

Subscribed and sworn before me thisPROOF OFPUBLICATION

Signed



### -<j

# Yh 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 ofthe Las Cruces Sun-News, a newspaper published daily in the county of Dona Ana, State of New Mexico; that the notice**7J~i')** Sjperclipping attached was published once a week/day in regular and entire issue ofsaid newspaper and not in any supplement thereoffor _,_ consecutive**week(s)~** the first publication was in

### ~~ue dated H®J, '1

### tl

### :;),(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 of1937.

Subscribed and sworn before me this STATE OF NEW MEXICO ss. County ofDona AnaPROOF OFPUBLICATION

OFFICIAL SEAL BRANDI ZAVALA Notary Public exlco 

# s day of

## ---,Vt~c01~_- ss. County ofDona 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 ofthe 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 ofsaid newspaper and not in any supplementthereoffor -' 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 ofPublic Records Adnlinistrative Law Divison 1205 CmTIino Carlos Rey Santa Fe, NM 87507- Phone: (505) 476-7907 Fax: (505) 476-7910 Ship To (ifdifferent address): EIB -Air Qual 2044 Galisteo St SantaFe, 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 PaymentAmount:

State Records CenterandArchives 

### Pleasepayprolnptly to VendorNumber 0000000729 Commission Records Form SRC-2002-03

- Revised September 2006

## New Mexico Commission ofPublic Records Administrative Law Division 1205 Camino Carlos Rey SantaFe, NM 87507 505-476-7907 

# Affidavit ofPublication in the 

# NewMexico Register I certifythat the agencynoted below has published legal notices orrules in the New Mexico Register, and thatpaymenthas been assessedby invoice for said legal notice orpublication, which appeared on the date and in the volume and issue nUlnbernoted below. Date ofPublication: 2/28/2007 Volume: XVII Issue #: 4 Invoice #: NMR-2007- 220 Amount: $63.00 Agency: Em -Air Qual Contact: Gail Cooke 2044 Galisteo St SantaFe, NM 87504- Description: Notice Other Material Other Notice ofPublic Meeting Notice ofPublic 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 proofcopies ofthe legal notices orrules which were published in the New Mexico Register. These docUlnentthe fact thatyourNotice ofRulemaking, ProposedRule, or Adopted Rule has beenpublished in the New Mexico Register. Form SRC-2002-04

### New Mexico Register/ Volume XVIII, Number 4/February 28, 2007 

# Notices ofRulemaking 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. atthe Sunland ParkCity Council Chambers, 1000 McNutt, Sunland Park, New Mexico 88063. The purpose ofthe hearing is to consider the matter ofEIB 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 ofintent to do so. The notice ofintent 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 ofthat 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 ofthe Board not later than 5:00 pm on April 20, 2007, and should reference the docket number, EIB 06-17 (R), and the date ofthe 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 ofthe 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 ofthe testimony. A member ofthe general public who wishes to submit a written statement for the record, in lieu ofproviding oral testimony at the hearing, shall file the written statement priorto the hearing, or submit it at the hearing. Persons having a disability and needing help in being a part ofthis 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 ofthe 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. atthe Sunland Park CityCouncil 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 ofintent to do so. The notice ofintent 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 ofthat 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 ofthe 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 ofthe 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 ofthe testimony. A member ofthe general public who wishes to submit a written statement for the record, in lieu ofproviding 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 ofthis 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 ofthe hearing, or the Board may convene a meeting after the hearing to consider action on the proposal.



### End ofOtherRelated Material Section

## STATEMENT OFREASONFOR SUNLAND PARK SIPREVISIONADOPTION

### STATE OF NEW MEXICO BEFORE THE ENVIRONMENTAL IMPROVEMENT BOAR]) /,**'<~)** 

### IN THE MATTER OF PROPOSED STATE IMPLEMENTATION MAINTENANCE PLAN FOR THE SUNLAND PARKNATIONAL AMBIENT AIR QUALITY STANDARD I-HOUR OZONE NONATTAINMENT AREA NEW MEXICO ENVIRONMENT DEPARTMENT, 

### Petitioner. NEW MEXICO ENVIRONMENT DEPARTMENT'S PROPOSED STATEMENT OF REASONS FORAMENDMENT OF REGULATIONS The Environmental Protection Division ("Division") ofthe New Mexico Environment Department ("Department") hereby submits the following StatementofReasons for Amendment ofRegulations inthe above referenced matter: I. STATEMENT OF REASONS THIS MATTER comes before the New Mexico Environmental Improvement Board ("Board") upon apetition filed by the Environmental Protection Division ("Division") ofthe New Mexico Environment Department ("NMED" or "Petitioner") proposing revisions to the State Implementation Planto incorporate an Ozone Maintenance Plan for the Sunland Park, New Mexico Nonattainment Area. 

### Findings ofFact 1. Pursuantto 20.1.1.300 NMAC, the Division filed apetition for apublic hearing to consider the proposed adoption ofthe SunlandParkMaintenance Plan on December 15,2006. 2. The Board determined at its meeting ofJanuary 3, 2007 to hold apublic hearing onthe proposal and assigned Board member Kathi Bearden as the Hearing Officer.

### 9. Ms. Cooke's testimony further establishedthat: (a) the Sunland ParkNonattainment area comprises 42 square miles and includes the communities ofSunland Park, SantaTeresa, 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 ofan AttainmentInventory, a Maintenance Demonstration, a Monitoring Network, aVerification ofContinued 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 accountthat ozone in the NonattainmentArea is formed overwhelmingly from precursors emitted outside ofthe Area. 10. No otherparties filedNotices ofIntentto presenttechnical testimony. 11. No other individuals presented oral or written non-technical public comment 

### 12. [The Boardmet on June 5, 

### 2007 to receive the Hearing Officers report on the Hearing and deliberate on theproposedregulatory changes.] B. 

### Conclusions ofLaw 13. Pursuantto NMSA 1978, Section 74-1-8(A)(4) (2000) ofthe Environmental Improvement Act andNMSA 1978, Section 74-2-5(B)(1)-(2) (1992) ofthe Air Quality Control Act, the Boardhas the authority to adopt regulations and plans regarding air quality management. 14. Pursuantto 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 airpollution. 15. Pursuantto NMSA 1978, Section 74-2-5(E)(l), the Board concludes that the amendments to the State Implementation Plan to adoptthe Sunland Park Maintenance Plan wouldbenefitthe

NMED's Proposed Statement ofReasons 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 onthe applicable law, the Bureaurespectfully requests thatthe Environmental Improvement Board adoptthis proposed Statement of Reasons for Amendment ofRegulations.
Respectfully submitted, NEW MEXICO ENVIRONMENT DEPARTMENT

# ~-,--;?~ 7' 

### William Grantham, Assistant General Counsel Office ofGeneral Counsel New Mexico Environment Department 1190 St. Francis Drive, SuiteN-4050 Santa Fe, New Mexico 87505 Telephone: (505) 827-2824

NMED's Proposed Statement ofReasons 06-18(R) 5 Page 5

## HEARRECORD FOR SUNLAND PARK, NEWMEXICO SIPREVISION HEARING1 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
Keith 

### & Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com

### 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



### Keith & 

### Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :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


### Keith & Miller Certified Court 

### Reporters 1-800-275-1686 www.keithandmiller.com1 :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.


### Keith & 

### Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :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
Keith 

### & Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :06:05 1 

### 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


### Keith 

### & Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :07:19 1 

### ordered. 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.
Keith 

### & Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :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


### Keith & Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :09:36 1 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.
Keith & 

### Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :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


### Keith & 

### Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :12:07 1 

### 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
Keith 

### & Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com

### 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
Keith & 

### Miller Certified Court Reporters**1-800~275-1686** 

### www.keithandmiller.com1 :14:22 1 

### 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
Keith 

### & Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :15:39 1 

### 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
Keith 

### & Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :16:50 1 

### 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.


### Keith & 

### Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :17:59 1 

### 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
Keith 

### & Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :19:06 1 

### 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


### Keith & 

### Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com

### GAIL COOKE

- 5-7-07 Examination by 

### Mr. Grantham 18

1 : 2 0 : 1 2 1 2 3 4 1 3 : 2 0 : 2 0 5 6 7 8 9 13:20:33 10 11 12 13 14 13:20:4215 

### 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.
Keith & 

### Miller Certified Court Reporters 1-800-275-1686**www.keithandmiller.co~**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 11
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


### Keith & 

### Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :22:09 1 

### 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
Keith 

### & Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :23:28 1 

### 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. 17 18 19 

### 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


### Keith 

### & Miller Certified Court 

### Reporters 1-800-275-1686 www.keithandmiller.com1 :24:43 1 

### you. GAIL COOKE

- 5 - 7 - 0 7 

### Examination 

### by Hearing Officer

But those should be

-- that is actually, I think22

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. 17 18 19
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
Keith & 

### Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :25:45 1 

### 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. 9
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? 17 18 19
13:26:4620
21 

### 22 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.


### Keith 

### & Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com

### GAIL COOKE

- 5-7-07 

### Examination by 

### Hear1ng Officer 24

1 :27:22 1 2 3 

### 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 6 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
21 

### 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. 24
13:28:1525 

### HEARING OFFICER: That's all the questions I have. Okay, thank you. Department's


### Keith 

### & Miller Certified Court Reporters 1-800-275-1686 

### www.keithandmiller.com1 :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 13 

### 14
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
21 

### 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
Keith & 

### Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 :29:28 1 closed. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

### GAIL COOKE

- 5-7-07 Examination by 

### Hearing Officer

(Proceedings concluded at 1:29 p.m.) 26



### Keith 

### & Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com1 2 3 

### CERTIFICATE

I, John M. Eby, Jr., Certified Shorthand27

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. 9 

### 10 11 

### 12 13 14 

### 15 16 17 18 19 

### 20 21 22 

### 23 24 

### 25 Certified to on May 17, 2007.

# ~~~~-~------------ John M. Eby, Jr. Certificate o. 167 Expires 12-31-2007 (53053)

Keith 

### & Miller Certified Court Reporters 1-800-275-1686 www.keithandmiller.com