[Federal Register Volume 75, Number 227 (Friday, November 26, 2010)]
[Rules and Regulations]
[Pages 72688-72695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29397]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2009-0656; FRL-9230-3]


Approval and Promulgation of Implementation Plans; New Mexico; 
Interstate Transport of Pollution

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of New Mexico

[[Page 72689]]

for the purpose of addressing the ``good neighbor'' provisions of the 
Clean Air Act (Act or CAA) section 110(a)(2)(D)(i) for the 1997 8-hour 
ozone National Ambient Air Quality Standard (NAAQS or standards) and 
the 1997 PM<INF>2.5</INF> NAAQS. This SIP revision addresses the 
requirement that New Mexico's SIP has adequate provisions to prohibit 
air emissions from adversely affecting another state's air quality 
through interstate transport. In this action, EPA is approving the New 
Mexico Interstate Transport SIP provisions that address the requirement 
of CAA section 110 (a)(2)(D)(i)(I) that emissions from New Mexico 
sources do not interfere with maintenance of the 1997 8-hour ozone 
NAAQS and the 1997 PM<INF>2.5</INF> NAAQS in any other state. In 
addition, EPA is approving the provisions of this SIP submission that 
address the requirement of section 110(a)(2)(D)(i)(II) that emissions 
from the State's sources do not interfere with measures required in the 
SIP of any other state under part C of the CAA to prevent ``significant 
deterioration of air quality.'' For purposes of the 8-hour ozone NAAQS, 
EPA is also approving a SIP revision that modifies New Mexico's 
Prevention of Significant Deterioration (PSD) SIP for the 1997 8-hour 
ozone NAAQS to include nitrogen oxides (NO<INF>X</INF>) as an ozone 
precursor. This action is being taken under section 110 and part C of 
the Act.

DATES: This final rule will be effective December 27, 2010.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R06-OAR-2009-0656. All documents in the docket 
are listed at http://www.regulations.gov. Although listed in the index, 
some information is not publicly available, e.g., 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 through http://www.regulations.gov or in hard copy at 
the Air Planning Section (6PD-L), Environmental Protection Agency, 1445 
Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made 
available by appointment for public inspection in the Region 6 Freedom 
of Information Act (FOIA) Review Room between the hours of 8:30 a.m. 
and 4:30 p.m. weekdays except for legal holidays. Contact the person 
listed in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. 
Bill Deese at 214-665-7253 to make an appointment. If possible, please 
make the appointment at least two working days in advance of your 
visit. There will be a 15 cent per page fee for making photocopies of 
documents. On the day of the visit, please check in at the EPA Region 6 
reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

FOR FURTHER INFORMATION CONTACT: Emad Shahin, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-6717; fax 
number (214) 665-7263; e-mail address <a href="/cdn-cgi/l/email-protection#a6d5cec7cecfc888c3cbc7c2e6c3d6c788c1c9d0"><span class="__cf_email__" data-cfemail="d7a4bfb6bfbeb9f9b2bab6b397b2a7b6f9b0b8a1">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Outline

I. What action is EPA taking?
II. What is the background for this action?
III. What comments did EPA receive and how has EPA responded to 
them?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What action is EPA taking?

    We are approving a submission from the State of New Mexico 
demonstrating that New Mexico has adequately addressed two of the 
required elements of the CAA section 110(a)(2)(D)(i), the element that 
prohibits air pollutant emissions from sources within a state from 
interfering with the maintenance of the relevant NAAQS in any other 
state, and the element that prohibits those pollutants from interfering 
with measures required in the SIP of any other state under part C of 
the CAA to prevent significant deterioration of air quality.
    We have determined that emissions from sources in New Mexico do not 
interfere with the maintenance of the 1997 8-hour ozone NAAQS or the 
1997 PM<INF>2.5</INF> NAAQS or with measures required to prevent 
significant deterioration of air quality with regards to these ozone or 
PM<INF>2.5</INF> NAAQS in any other state. Because we have determined 
that emissions from New Mexico sources do not interfere with 
maintenance of these NAAQS, or interfere with measures required to 
prevent significant deterioration of air quality in any other state, 
sections 110(a)(2)(D)(i)(I) and (II) do not require any substantive 
changes to New Mexico's SIP for these purposes. EPA published a prior 
final rule (75 FR 33174) on June 11, 2010 approving the New Mexico SIP 
submission for the ``significant contribution to nonattainment'' prong 
of section 110(a)(2)(D)(i). The remaining element of section 
110(a)(2)(D)(i), which pertains to interference with measures required 
to protect visibility in any other state, will be addressed in a future 
rulemaking.
    In conjunction with our finding that emissions from sources in New 
Mexico are not interfering with any other state's PSD program, we are 
also approving New Mexico's submitted rule revisions to regulate 
NO<INF>X</INF> emissions as a precursor to ozone in its PSD permit 
program. EPA intends to act on the other revisions submitted together 
with the PSD program revisions at a later time.

II. What is the background for this action?

    On July 18, 1997, EPA promulgated new NAAQS for 8-hour ozone and 
fine particulate matter (PM<INF>2.5</INF>). This action is being taken 
in response to the 1997 8-hour ozone NAAQS and PM<INF>2.5</INF> NAAQS. 
This action does not address the requirements for the 2006 
PM<INF>2.5</INF> NAAQS or the 2008 8-hour ozone NAAQS; those standards 
will be addressed in later actions.
    Section 110(a)(1) of the CAA requires states to submit SIPs to 
address a new or revised NAAQS within 3 years after promulgation of 
such standards, or within such shorter period as EPA may prescribe. 
Section 110(a)(2) lists the elements that such new SIPs must address, 
as applicable, including section 110(a)(2)(D)(i), which pertains to 
interstate transport of certain emissions. On August 15, 2006, EPA 
issued its ``Guidance for State Implementation Plan (SIP) Submission to 
Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for 
the 8-Hour Ozone and PM<INF>2.5</INF> National Ambient Air Quality 
Standards'' (2006 Guidance). EPA developed the 2006 Guidance to make 
recommendations to states for making submissions to meet the 
requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS 
and 1997 PM<INF>2.5</INF> NAAQS. As identified in the 2006 Guidance, 
the ``good neighbor'' provisions in section 110(a)(2)(D)(i) require 
each state to submit a SIP that prohibits emissions that adversely 
affect another state in the ways contemplated in the statute. Section 
110(a)(2)(D)(i) contains four distinct requirements related to the 
impacts of interstate transport. The SIP must prevent sources in the 
state from emitting pollutants in amounts which will: (1) Contribute 
significantly to nonattainment of the NAAQS in other states; (2) 
interfere with maintenance of the NAAQS in other states; (3) interfere 
with provisions to prevent significant deterioration of air

[[Page 72690]]

quality in other states; or (4) interfere with efforts to protect 
visibility in other states.
    On September 17, 2007, EPA received a SIP revision from the State 
of New Mexico intended to address the requirements of section 
110(a)(2)(D)(i) for both the 1997 8-hour ozone standards and the 1997 
PM<INF>2.5</INF> standards. On June 11, 2010, EPA found that emissions 
from New Mexico do not contribute significantly to nonattainment of the 
NAAQS in other states (75 FR 33174). In this rulemaking, EPA is 
addressing the requirements that pertain to preventing sources in New 
Mexico from emitting pollutants that will interfere with maintenance of 
the 1997 8-hour ozone NAAQS and the 1997 PM<INF>2.5</INF> NAAQS in 
other states, or that will interfere with measures required to prevent 
significant deterioration of air quality in other states with respect 
to these NAAQS. In its submission, the State of New Mexico demonstrated 
that its current SIP is adequate to prevent such interference, and thus 
argued that no additional emissions controls are necessary at this time 
to alleviate interstate transport for the 1997 8-hour ozone NAAQS or 
the 1997 PM<INF>2.5</INF> NAAQS. With the submission, the State meets 
the second and third elements of section 110(a)(2)(D)(i). On August 27, 
2010, we published a proposed rule to approve the portion of New 
Mexico's SIP submission that addressed the two elements that pertain to 
prohibiting air pollutant emissions from within New Mexico from 
interfering with maintenance of the 1997 8-hour ozone and 1997 
PM<INF>2.5</INF> NAAQS or with measures required in the SIP of any 
other state under part C of the CAA to prevent significant 
deterioration of air quality in any other state (75 FR 52692). We 
simultaneously proposed to approve New Mexico's September 21, 2009 
submittal that adds NO<INF>X</INF> as an ozone precursor in its PSD 
rules. For EPA's full analysis on the approvability of these SIP 
submittals, please see that proposal. EPA received adverse comments 
regarding the ``interfere with maintenance'' element during the comment 
period, and accordingly EPA is responding to those comments in today's 
final action.

III. What comments did EPA receive and how has EPA responded to them?

    EPA received one comment letter on the August 27, 2010 proposed 
rule. The letter can be found on the internet in the electronic docket 
for this action. To access the letters, please go to http://www.regulations.gov and search for Docket No. EPA-R06-OAR-2007-0993, or 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
paragraph above. The discussion below addresses those comments and our 
response.
    Comments from WildEarth Guardians.
    Comment No. 1--The commenter stated that EPA inappropriately 
defined the term ``interfere with maintenance.'' It argued that EPA's 
definition appeared to be ``inappropriately conflated with the 
definition of nonattainment.'' It argued that the definition of 
maintenance appeared to be tied to nonattainment, asserting that 
``unless an area has violated or is in violation of the NAAQS, the 
agency will not consider whether New Mexico is interfering with that 
area's ability to maintain compliance with the NAAQS.'' For this 
reason, it argued EPA did not give independent meaning to the 
``interfere with maintenance'' prong of section 110(a)(2)(D)(i)(I).
    EPA Response: The definition of maintenance used by EPA is 
consistent with the direction given to EPA by the Court of Appeals for 
the DC Circuit in North Carolina v.  EPA, 531 F.3d 896 (DC Cir. 
2008).\1\ In that case, the court analyzed the definition of 
``interfere with maintenance'' used in the Clean Air Interstate Rule 
(CAIR). The court found that the definition EPA used ``gave no 
independent significance to the `interfere with maintenance' prong of 
section 110(a)(2)(D)(i)(I) to separately identify upwind sources 
interfering with downwind maintenance.'' Id. at 910. It further 
reasoned that ``[u]nder EPA's reading of the statute, a state can never 
`interfere with maintenance' '' unless EPA determines that at one point 
it ``contribute[d] significantly to nonattainment.'' Id. at 910. Based 
on this analysis, the court found the definition unlawful holding that 
``[b]ecause EPA describes CAIR as a complete remedy to a section 
110(a)(2)(D)(i)(I) violation and does not give independent significance 
to the `interfere with maintenance' language to identify upwind states 
that interfere with downwind maintenance, EPA unlawfully nullifies that 
aspect of the statute and provides no protection for downwind areas 
that, despite EPA's predictions, still find themselves struggling to 
meet NAAQS due to upwind interference in 2010.'' Id. at 910-911.
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    \1\ As EPA noted in the proposal, the term ``interfere with 
maintenance'' is not defined in the CAA. As such, the term is 
ambiguous and EPA's interpretation of that term in this action is 
both reasonable and consistent with the overall goals of the CAA. By 
this approach, EPA is giving independent meaning to the term and 
supporting that interpretation with technical analysis to apply it 
to the facts of this action.
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    The approach used by EPA to evaluate New Mexico's SIP submission 
and to determine whether emissions from sources in New Mexico interfere 
with maintenance in any other state directly addresses these flaws. It 
gives significant independent meaning to the term ``interfere with 
maintenance.'' It establishes a process to identify any specific 
receptors in downwind states that, even though they are projected to be 
in attainment and thus would not be nonattainment receptors, may have 
difficulty maintaining the NAAQS in question. These receptors are 
referred to as maintenance receptors.
    The methodology EPA used to identify maintenance receptors gives 
independent meaning to the term ``interfere with maintenance'' and 
establishes a process to identify projected attainment receptors that, 
based on the historic variability of air quality at that site (which 
may be due to variability in emissions and/or meteorology), may have 
difficulty maintaining the standard. As explained in greater detail 
below, the commenter's objection to EPA's approach appears to be based 
on the misconception that the methodology EPA used to identify 
maintenance sites was dependent on base year NAAQS violations.
    The commenter's statement that EPA's designation of maintenance 
receptors is ``firmly hitched to a finding that the maximum design 
value based on a single three-year period between 2003 and 2007 is in 
excess of the NAAQS'' appears to be based on a misunderstanding of the 
methodology used by EPA to identify maintenance receptors. EPA's 
methodology did not, as the commenter appears to assume, require a site 
to have a design value above the NAAQS for one of the three base 
periods (2003-2005, 2004-2006, 2005-2007) to be considered a 
maintenance site. The methodology is based on an analysis of the future 
year average and future year maximum design values. It does not depend 
on whether the base year design values exceed the NAAQS. In the 
proposal, EPA explained that ``EPA identified those sites that are 
projected to be attainment based on the 5-year weighted average design 
value, but that have a maximum design value (based on a single three-
year period) that exceeds the NAAQS, as maintenance sites.'' (75 FR 
52697). The maximum design value referenced in this sentence is the 
maximum future design value calculated using each of the three base 
design value periods separately. Whether or not one of the three base

[[Page 72691]]

period design values exceeded the NAAQS was not a factor considered in 
determining whether a site was a maintenance receptor.
    To better understand this concept, it is useful to compare the 
methodologies used in the Transport Rule (TR) proposal (75 FR 45210 
(August 2, 2010)) to identify nonattainment and maintenance receptors. 
In the TR proposal, base period (2003-2007) ambient data were projected 
to the future (using model outputs), to identify both nonattainment and 
maintenance receptors. In both cases, receptors were identified by 
projected future design values; however, because more conservative data 
were used for the maintenance analysis, this analysis could identify 
receptors that were projected by the nonattainment analysis to be in 
attainment, yet might have difficulty attaining the standard due to 
historic variability of air quality at that site. To identify future 
nonattainment sites EPA calculated the future year design values by 
projecting the 5-year weighted average design value for each site. Only 
if this future year design value exceeded the NAAQS was the site 
considered to be a nonattainment receptor. However, to identify 
projected maintenance sites EPA used a different methodology that took 
into account historic variability in air quality at each receptor. For 
this approach EPA calculated the maximum future year design value by 
processing each of the three base design value periods (2003-2005, 
2004-2006, and 2005-2007) separately. The highest of the three future 
values is the maximum design value, which is used to determine 
maintenance receptors.
    In this way, EPA's analysis identifies those areas that are 
projected to be in attainment, but may have difficulty maintaining 
attainment of the standard, for example in a year with particularly 
severe meteorology (weather that is conducive to ozone and/or 
particulate formation). In other words, this analysis does exactly what 
the DC Circuit directed EPA to do in North Carolina, 531 F.3d 896. It 
gave independent meaning to the ``interfere with maintenance'' prong of 
110(a)(2)(D) and is providing protection to any areas that, although 
they are predicted to attain the standard (and thus upwind sources 
could not be found to significantly contribute to nonattainment in that 
area) may have difficulty maintaining the standard. Id. at 911.
    EPA used this same approach to identify any potential maintenance 
receptors for purposes of evaluating New Mexico's SIP submission. For 
the reasons explained above, this approach is both reasonable and 
consistent with the direction given to EPA by the DC Circuit in North 
Carolina, 531 F.3d 896.
    Comment No. 2--The commenter cited a variety of information 
suggesting that receptors in the Denver/North Front Range (Denver/NFR) 
area should also be considered for maintenance purposes under 
110(a)(2)(D)(i) in this action. The commenter points out that as EPA 
itself has stated that ``Data for 2005-2007 and 2006-2008 reflect 
violations of the 8-hour ozone NAAQS at the Rocky Flats North monitor 
(values of {0.085{time}  and 0.086 ppm, respectively).'' The commenter 
also argued that modeling prepared in conjunction with Colorado's 
Denver/NFR attainment demonstration shows that by 2010, the three-year 
design value is only projected to be lowered to 0.084 parts per 
million, barely in compliance with the NAAQS, and that certain portions 
of the Denver/NFR area of Colorado would violate the 1997 ozone NAAQS 
in 2010 at grid cells west of Fort Collins. The commenter referenced 
several documents that are part of the Colorado's Denver/NFR 8-hour 
Ozone Attainment Demonstration in support of its arguments. The 
commenter cited the report's language that indicated that the modeling 
projection of a value above the 1997 8-hour standard to the west of 
Fort Collins is not ``implausible'' explaining, ``In the case of the 
Denver ozone modeling, higher ozone concentrations are estimated west 
of Fort Collins than at the locations of the two monitors in Fort 
Collins on some days and this does not appear to be an error in the 
modeling system''.\2\
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    \2\ Commenter referenced the Colorado Department of Public 
Health and Environment's ``2010 Ozone Attainment Demonstration 
Modeling for the Denver 8-hour Ozone State Implementation Plan 
Control Strategy'' and the Environ modeling report ``Final 2010 
Ozone Attainment Demonstration Modeling for the Denver 8-hour Ozone 
State Implementation Plan.''
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    The commenter argued that EPA's failure to consider the Denver/NFR 
area as a receptor for evaluating interference with maintenance in this 
action reflects the very problem that the DC Circuit warned could 
result without giving independent meaning to the term ``interfere with 
maintenance.'' The commenter asserted that EPA's own modeling (CENRAP 
modeling with 2002 emission inventory) indicated that sources in New 
Mexico contribute more than 2 parts per billion (up to 5% of Denver/NFR 
area's total concentrations) of ozone on days when exceedances of the 
1997 8-hour standard are projected in Denver/NFR.\3\ The commenter 
stated that EPA has rejected this modeling information because it used 
outdated emission data without any indication that it is invalid or 
fails to indicate that sources within New Mexico may interfere with 
maintenance in Colorado.\4\
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    \3\ EPA Source Apportionment Modeling using a version of the 
CENRAP modeling database with a 2002 Emission Inventory.
    \4\ Commenter referenced 75 FR pages 33182-33183.
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    EPA's Response--EPA disagrees with the commenter's argument that 
EPA has inappropriately identified the correct monitors for maintenance 
receptors. As discussed in greater detail in the previous response to 
comment, EPA has selected a method that identifies maintenance 
receptors separately from nonattainment receptors and gives an 
independent meaning to the interfere with maintenance prong of section 
110(a)(2)(D)(i). EPA has consistently applied this method to all 
potential receptors in States potentially impacted by New Mexico's 
emissions including those in the Denver/NFR area.
    The commenter's argument EPA did not consistently identify 
maintenance receptors is premised on the same fundamental 
misunderstanding discussed in response to comment <greek-i>1--that 
EPA's identification of nonattainment receptors was based on current or 
past NAAQS violations. As explained above, this is not correct. EPA did 
not base its identification of maintenance receptors on an analysis of 
whether air quality at those receptors exceeded the NAAQS in the base 
years. The methodology EPA used to identify maintenance areas takes 
into account historic variability of emissions at specific monitoring 
sites to analyze whether or not monitoring sites projected to be in 
attainment in 2012 will nonetheless remain at risk of slipping into 
nonattainment in that year. The commenter provided a number of modeling 
or monitoring analyses for 2010 or earlier. As we have addressed in 
responses elsewhere in this notice, EPA continues to believe 2012 is 
the appropriate year for this analysis. Thus, modeling or monitoring 
data for other years is not directly relevant to this rulemaking. 
Nonetheless, below we address the commenter's specific assertions about 
the modeling.
    The commenter asserts that monitoring data for 2005-07 and 2006-08 
for the Rocky Flats North monitor reflect violations of the 8-hour 
NAAQS and therefore EPA should consider this Rocky Flats North monitor 
as a ``maintenance receptor.'' The commenter further cites modeling 
prepared in conjunction with Colorado's Denver/NFR attainment 
demonstration to support its assertion that EPA has

[[Page 72692]]

applied inconsistently its definition of interference with maintenance. 
The modeling data referenced by the commenter, however, only identifies 
monitors that, in the commenter's view, are at risk of being in 
nonattainment or having maintenance problems in 2010. The monitoring 
data cited indicates high ozone levels in the past. The underlying 
issue raised is thus substantively the same as that raised in comment 
no. 3 below which argues that EPA's analysis is faulty because it 
identifies receptors likely to have difficulty maintaining the standard 
in 2012 and not at the present or in the past. EPA's response to 
comment no. 3 below, illustrates how its approach, based on modeling 
analyses that identify receptors at risk for maintenance in the year 
2012, is appropriate and consistent with the DC Circuit decision in 
North Carolina v. EPA.
    EPA's method is based on model projection values that take into 
account multi-year variability in ozone data at specific monitors. For 
identification of maintenance receptors, EPA utilized the monitoring 
data from the 2003-2007 period to calculate 2012 future year modeling 
design value projections. The 2003-07 period includes three Design 
Value (DV) periods (2003-2005, 2004-2006, and 2005-2007). The 2012 
future year DVs were calculated by multiplying a 3-year DV (base year) 
by the ratio of the Future Year average of the daily 8-hour ozone 
maximums around a monitor over the Base Year average of the daily 8-
hour ozone maximums around a monitor. This calculation was performed 
for each of the three 3-year DVs (2003-2005, 2004-2006, and 2005-2007). 
This approach yielded three different projected 2012 design values and 
thus, tests for variability in meteorology. If any of the three 2012 
projections was above the 1997 ozone standard, then the receptor would 
be considered a maintenance receptor. None of the 2012 projections for 
the Denver/NFR area was above the standard so the area was not 
considered a maintenance area. This approach was the same as the 
approach used for every potential receptor evaluated. It is worth 
noting that EPA's analysis included the 2005-2007 data for the Rocky 
Flats monitor (which is one of the highest monitored DVs in recent 
years for this monitor) that the commenter raised as a concern and 
pursuant to its methodology as previously described EPA's analysis 
determined that the Rocky Flats monitor would not be a maintenance 
receptor in 2012.
    Further, EPA disagrees with commenter's conclusion that the 
modeling performed for the Denver/NFR attainment demonstration with the 
2010 model projections establishes that any of the areas identified 
will have maintenance problems for the 1997 8-hour ozone NAAQS. We 
disagree with the commenter's conclusion that the Denver/NFR area 
monitors should be identified as ``maintenance receptors'' in large 
part because he bases his conclusion on projections for 2010 instead of 
2012. This modeling used projections for 2010 not 2012, which as 
explained above and in response to comment no. 3 below is not the 
correct year for comparison, given the approach EPA has developed for 
determining maintenance receptors. EPA's analysis of maintenance 
receptors, which is based on the approach developed in the Transport 
Rule Proposal to be consistent with the DC Circuit's opinion in North 
Carolina v. EPA and uses projections for 2012, did not identify any 
maintenance receptors in the Denver/NFR area. This conclusion is 
consistent with evidence suggesting emissions are likely to trend 
downward (for example, with two more years of fleet turnover, this 
modeling would likely have projected lower levels of ozone in 2012) and 
preliminary monitoring data for 2010, which indicates that the Denver/
NFR area is meeting the 1997 ozone standard. Further, EPA has reviewed 
Colorado's attainment demonstration for the Denver/NFR area and 
proposed that the combination of the modeling and Weight of Evidence 
analyses demonstrates that Denver will be in attainment in 
2010.<SUP>5 6</SUP>
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    \5\ EPA's ``Guidance on the Use of Models and Other Analyses for 
Demonstrating Attainment of Air Quality Goals for Ozone, PM2.5, and 
Regional Haze,'' EPA-454/B-07-002, April 2007.
    \6\ 75 Federal Register 40 CFR part 52 [EPA-R08-OAR-2010-0285; 
FRL-9177-2], Proposed Rule, ``Approval and Promulgation of Air 
Quality Implementation Plans; Colorado; Attainment Demonstration for 
the 1997 8-Hour Ozone Standard, and Approval of Related Revisions''; 
pages 42346-42361.
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    In addition, the commenter's concern that an area west of Fort 
Collins might exceed 84 ppb in 2010 is based on exceedance values in 
the Colorado modeling analysis from a special analysis, called the 
Unmonitored Area Analysis (UAA), that is recommended for model grid 
cells that are not analyzed in the monitor based attainment 
demonstration because they are not located near a monitor. EPA does not 
believe that the UAA establishes that this area should be considered a 
maintenance receptor area for the purposes of 110(a)(2)(D)(i).
    First, the UAA analysis is for 2010, which as noted above is not 
the correct analysis year. Second, EPA guidance indicates that NAAQS 
violations in the UAA should be handled on a case by case basis.\7\ The 
guidance stresses that due to the lack of measured data, the 
examination of ozone concentrations as part of the unmonitored area 
analysis is more uncertain than the monitor based attainment test. This 
is true even in situations such as this where, as the commenter points 
out; no known errors were identified by the contractor in the modeling 
analysis. As a result, the UAA results are recommended to be treated as 
a separate test from the monitor based attainment test with less weight 
put on the conclusions of the UAA analysis. EPA's attainment 
demonstration guidance indicates ``While it is expected that States 
will implement additional emission controls to eliminate predicted 
violations of the monitor based test, the same requirements may not be 
appropriate in unmonitored areas.'' \8\ The guidance recommends that it 
may be appropriate to deploy additional monitors in an area where the 
unmonitored analysis indicates a potential future year violation.
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    \7\ Id.
    \8\ Id., page 32.
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    To address the concerns raised by the UAA, Colorado installed an 
additional ozone monitor in the area West of Fort Collins to determine 
whether the model predicted ozone concentrations are, in fact, valid. 
The special purpose monitor, located in Rist Canyon, began operation on 
May 14, 2009. The Rist Canyon monitoring station has collected data for 
two ozone seasons (approximately 16 months) since it began operating 
and the fourth highest daily maximum 8-hour average ozone concentration 
reading is 69 ppb for May through December of 2009 and 72 ppb for 
January through August 2010.\9\
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    \9\ The Rist Canyon monitoring station uses a Federal Equivalent 
Method (FEM) and follows the quality assurance requirements of 40 
CFR part 58 Appendix A. Ozone data collected at this monitoring 
station is eligible for comparison to the ozone NAAQS after the 
monitor has operated for more than 24 months per 40 CFR 58.30(c). 
Design values, however, are based on the 3-year average of the 
annual fourth highest daily maximum 8-hour average ozone 
concentration (see 40 CFR part 50, Appendix D).
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    Therefore, EPA does not believe the modeling performed for the 
State of Colorado's Denver/NFR area SIP can support the conclusion that 
this area should be considered a maintenance receptor area for the 
purposes of 110(a)(2)(D)(i). The methodology developed to identify 
maintenance receptors for the purpose of analyzing interference with 
maintenance with respect to the 1997 ozone and PM<INF>2.5</INF> NAAQS 
relies on base period monitoring data to identify monitor

[[Page 72693]]

locations that are projected to have maintenance problems in 2012. The 
methodology does not identify receptors based on modeling data alone. 
While the monitor has not operated long enough to account for 
variability in ozone levels, the newly installed monitor in the 
relevant area is reading well below the standard and this fact further 
confirms that the modeling results and the UAA results do not support 
the conclusion that receptors in the Denver/NFR area should be 
considered maintenance receptors for the purpose of CAA section 
110(2)(D)(i).
    EPA also disagrees with the commenter's comments that the 2002 
CENRAP based modeling that evaluated New Mexico's impacts demonstrates 
a maintenance problem since the analysis was based on emission and 
meteorological conditions in 2002, not the analysis year of 2012. The 
CENRAP modeling used a 2002 emission inventory which is likely to 
project higher ozone levels and is therefore very conservative compared 
to modeling projections with a 2012 emission inventory analysis. The 
CENRAP modeling was performed to provide a conservative test using 
source apportionment modeling with a readily available modeling system 
(since construction of a complete modeling system from scratch requires 
significantly much more time and resources) to determine whether 
further analysis was warranted to determine if emissions from sources 
in New Mexico (and other states) could potentially interfere with 
maintenance in downwind nonattainment areas. The sole purpose of the 
modeling was to provide a very conservative technical analysis that 
would provide a basis for determining that an area did not have a 
significant impact upon the Denver/NFR area. Therefore, the CENRAP 
modeling cannot serve to provide a basis for determining that an area 
has an impact on other areas in 2012. It also cannot be relied upon to 
provide a basis to determine which areas should be considered as 
maintenance for the purposes of 110(a)(2)(D)(i).
    In conclusion, EPA disagrees with the commenter. We have used a 
fully consistent approach in identifying areas that may have difficulty 
in maintaining attainment of the NAAQS. It is these areas that we have 
further evaluated to see if New Mexico's emissions would interfere with 
maintenance of the NAAQS.
    Comment No. 3--The commenter also argued that EPA's analysis 
ignores whether emissions from New Mexico sources are at present 
interfering with maintenance in other States. The commenter argued that 
EPA erred by considering only whether New Mexico emissions will 
interfere with maintenance of the NAAQS in 2012 at monitors that would 
then be considered ``maintenance receptors.'' It argues that this 
approach is inconsistent with the approach taken to determine whether 
New Mexico significantly contributes to nonattainment in other States 
(citing 75 FR 33174-33190). The commenter agreed that ``EPA should 
ensure that New Mexico does not interfere with maintenance or 
contribute significantly to nonattainment in other states in the 
future,'' but argued that ``the agency's duties under Section 
110(a)(2)(D)(i)(I) apply both in the present and the future.'' In 
short, the commenter argued that EPA's approach is flawed simply 
because EPA evaluated whether or not there is significant contribution 
to nonattainment in other states looking at current data, whereas EPA 
evaluated whether there is interference with maintenance looking at 
future projected data.
    EPA Response: EPA disagrees with the commenter concerning the 
evaluation of significant contribution versus interference with 
maintenance. Section 110(a)(2)(D)(I)(i) of the Clean Air Act requires 
states to submit SIPs within 3 years of promulgation or revision of a 
NAAQS that:
    (D) Contain adequate provisions-
    (i) Prohibiting * * * any source or other type of emissions 
activity within the state from emitting any air pollutant in amounts 
which will--
    (I) Contribute significantly to nonattainment or, interfere with 
maintenance by, any other State with respect to any such national 
primary or secondary ambient air quality standard, or
    (II) Interfere with measures required to be included in the 
applicable implementation plan for any other State under part C of this 
subchapter to prevent significant deterioration of air quality or to 
protect visibility.
    In determining the appropriate year to analyze in determining 
whether emissions from New Mexico will interfere with maintenance by 
any other State, EPA used an approach upheld by the DC Circuit in North 
Carolina v. EPA. In that case, the Court examined EPA's definition of 
``will'' in ``will contribute significantly.'' The placement of the 
word ``will'' at the end of section 110(a)(2)(D)(i) clarifies that it 
applies to all of the provisions that follow--both those in 
110(a)(2)(D)(i)(I) and those in 110(a)(2)(D)(i)(II). Thus the DC 
Circuit's discussion of the meaning of the word ``will'' in ``will 
significantly contribute'' also applies to the meaning of the word 
``will'' in ``will * * * interfere with maintenance.''
    In North Carolina v. EPA, the DC Circuit rejected North Carolina's 
argument that EPA erred in limiting its analysis of downwind areas by 
excluding areas that were currently monitored nonattainment but 
projected to be in attainment at a future date. Like the commenter 
argues here, North Carolina had argued that EPA was obligated to 
analyze the significant contribution of states that were contributing 
to areas of North Carolina that were in nonattainment at the time the 
rule was promulgated, even though those areas were projected to come 
into attainment by the year selected for the future base case analysis. 
In rejecting this argument, the DC Circuit explained that the approach 
used by EPA was identical to the one used previously in the NOx SIP 
Call and that ``because `will' can mean either certainty or indicate 
the future tense,'' EPA's approach was reasonable. In other words, the 
court approved EPA's approach that entailed the evaluation of 
interstate transport impacts at a future date in time.
    Contrary to the assertions of the commenter, EPA believes that 
evaluation of interference with maintenance using a future date is the 
most appropriate approach for that requirement. As explained in the 
proposed action, the court decision affecting the CAIR rule required 
EPA to reevaluate its approach to the interfere with maintenance 
requirement of section 110(a)(2)(D) and to develop a new approach to 
give that requirement separate meaning. In doing so, EPA has developed 
an approach that necessarily requires a number of years of data, and an 
analysis that evaluates where there may be difficulties with 
maintaining attainment at a specific point in time, in this instance 
2012. EPA's prior evaluation of whether emissions from New Mexico were 
significantly contributing to nonattainment in other states was based 
on the data available at the time of that evaluation and before EPA had 
developed its approach for evaluating interference with maintenance. It 
is reasonable and appropriate for EPA to use, in this rulemaking, the 
current approach to identifying maintenance receptors for purposes of 
section 110(a)(2)(D) that EPA developed to be consistent with the 
direction given to EPA in North Carolina v. EPA.
    Finally, we note that comments on the validity or reasonableness of 
EPA's approach to determining significant contribution in the prior 
action are not directly relevant to this rulemaking.

[[Page 72694]]

This rulemaking addresses only the ``interfere with maintenance'' and 
PSD prongs of section 110(a)(2)(D)(i).

IV. Final Action

    We are approving two elements of the Interstate Transport SIP 
submitted by the State of New Mexico on September 17, 2007. 
Specifically, in this action we are approving the New Mexico Interstate 
Transport SIP provision that address the requirement of Section 
110(a)(2)(D)(i)(I) that emissions from sources in New Mexico do not 
interfere with maintenance of the 1997 8-hour ozone or 1997 
PM<INF>2.5</INF> NAAQS in any other state, and the provision that 
addresses the requirement of Section 110(a)(2)(D)(i)(II) that emissions 
from New Mexico's sources do not interfere with measures required in 
the SIP of any other state under part C of the CAA to prevent 
``significant deterioration of air quality.'' For purposes of the 1997 
8-hour ozone NAAQS, EPA also is approving a SIP revision adopted by 
NMED on August 31, 2009, that modifies New Mexico's PSD SIP for the 
1997 8-hour ozone NAAQS to include nitrogen oxides as an ozone 
precursor.
    After fully considering all comments received on the proposed rule, 
we have concluded that the State's submission, and additional evidence 
evaluated by EPA, establishes that emissions from New Mexico sources do 
not interfere with the maintenance of the ozone and PM<INF>2.5</INF> 
NAAQS of 1997 in any other states or with measures required by SIPs of 
other states to prevent significant deterioration of air quality. 
Accordingly, New Mexico does not need to include additional emission 
limitations on its sources to eliminate any such contribution to other 
states for purposes of these NAAQS.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
    <bullet> Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    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 action 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).
    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 January 25, 2011. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: November 10, 2010.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart GG--New Mexico

0
2. Section 52.1620 is amended:
0
a. In paragraph (c) by revising the entry for Part 74 under ``New 
Mexico Administrative Code (NMAC) Title 20--Environment Protection 
Chapter 2--Air Quality''.
0
b. In paragraph (e) revising the entry in the second table for 
``Interstate transport for the 1997 ozone and PM<INF>2.5</INF> NAAQS'' 
and adding a new entry immediately after it.
    The amendments read as follows:


Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

[[Page 72695]]



                                       EPA-Approved New Mexico Regulations
----------------------------------------------------------------------------------------------------------------
                                                   State approval/
        State citation            Title/subject    submittal date       EPA approval date          Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Part 74.......................  Permits--Preventi       8/31/2009  11/26/2010 [Insert citation  ................
                                 on of                              of publication].
                                 Significant
                                 Deterioration.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

     (e) * * *

           EPA-Approved Non-Regulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP
----------------------------------------------------------------------------------------------------------------
                                    Applicable
                                  geographic or         State
     Name of SIP provision        nonattainment      submittal/         EPA approval date          Explanation
                                       area        effective date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Interstate transport for the    New Mexico.......       9/17/2007  6/10/2010..................  Revisions to
 1997 ozone and                                                                                  prohibit
 PM[ihel2].[ihel5] NAAQS.                                                                        significant
                                                                                                 contribution to
                                                                                                 nonattainment
                                                                                                 in any other
                                                                                                 state.
                                                                                                Approval for
                                                                                                 revisions to
                                                                                                 prohibit
                                                                                                 interference
                                                                                                 with
                                                                                                 maintenance and
                                                                                                 PSD measures in
                                                                                                 any other
                                                                                                 state.
Interstate transport for the    New Mexico.......       9/17/2007  11/26/2010 [Insert citation  Revisions to
 1997 ozone and                                                     of publication].             prohibit
 PM[ihel2].[ihel5] NAAQS.                                                                        interference
                                                                                                 with
                                                                                                 maintenance and
                                                                                                 PSD measures in
                                                                                                 any other
                                                                                                 state.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2010-29397 Filed 11-24-10; 8:45 am]
BILLING CODE 6560-50-P


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