New Mexico State Implementation Plan Elements

Required Under Section 110(a)(2) for the

2010 Sulfur Dioxide (SO2) National Ambient Air Quality Standards (NAAQS)

Docket ID EPA-R06-OAR-2014-0205

Technical Support Document

May 2015

Table of Contents:

I. Introduction

A. Section 110(a)(1) and (2)

B. History of Reviews of the Primary NAAQS for Sulfur Oxides

II. Additional Background

A. What are the National Ambient Air Quality Standards?

B. What is a SIP? 

C. Additional Information

III. SIP elements required under Section 110(a)(2) for the 2010 Sulfur Dioxide NAAQS, the 

State’s submittals and EPA’s analysis

IV. Recommendations

V. References

Appendix A: EPA’s Approach to the Review of Infrastructure SIP Submissions

Appendix B: EPA’s Evaluation of the June 23, 2014 United States Supreme Court decision on 

greenhouse gas emissions on New Mexico’s infrastructure SIP reviews.

I. Introduction

In this technical support document (TSD), EPA is providing additional documentation 

concerning our evaluation of the submittal provided in a letter, signed by the Cabinet Secretary 

of the New Mexico Environment Department (NMED) on February 14, 2014, to meet the 

requirements of section 110(a)(1) and (2) of the Clean Air Act (CAA or Act) for the 2010

national ambient air quality standards (NAAQS or standards) for sulfur dioxide (SO2)

1

. The 

requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). 

Pursuant to section 110(a)(1), states must make SIP submissions "within 3 years (or such shorter 

period as the Administrator may prescribe) after the promulgation of a national primary ambient 

air quality standard (or any revision thereof)," and these SIP submissions are to provide for the 

"implementation, maintenance, and enforcement" of such NAAQS. The statute directly imposes 

on states the duty to make these SIP submissions, and the requirement to make the submissions 

is not conditioned upon EPA's taking any action other than promulgating a new or revised 

NAAQS. Section 110(a)(2) includes a list of specific elements that "[e]ach such plan" 

submission must address. EPA has historically referred to these SIP submissions made for the 

purpose of satisfying the requirements of CAA sections 110(a)(1) and (a)(2) as "infrastructure 

SIP" submissions. EPA issued guidance on September 13, 2013, addressing the infrastructure 

 

1 Although the effective date of the Federal Register notice for the final rule was June 22, 2010, the rule was signed 

by the Administrator and publicly disseminated on June 2, 2010. The effective date for the final rule is August 23, 

2010.
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SIP elements required under sections 110(a)(1) and (2) for most of the NAAQS including the 

2010 SO2 NAAQS2. More detail on these standards, section 110(a)(1) and (2) of the Act, and the 

submittal we are reviewing to determine if the New Mexico SIP satisfies the section 110(a)(2) 

requirements, is provided in subsection A below. Throughout this document, “we,” “us,” and 

“our” means EPA.

Section II of this TSD provides additional background material on the NAAQS, State 

Implementation Plans (SIPs), and related issues.

Section III of this TSD provides a description of each element required under section 

110(a)(2) of the Act, the State’s response, and additional details of our analysis of the State’s 

response that are not included in the Federal Register notice for this proposed action. Copies of 

the State’s submittal are in the docket for this rulemaking.

Section IV of this TSD includes our recommendation for action on each of the elements 

reviewed herein.

Section V of the TSD contains a list of the guidance documents cited herein. Copies of 

the guidance documents referenced are in the docket for this rulemaking.

Appendices A and B provide additional information about recent changes to how EPA 

reviews infrastructure SIPs.

A. Section 110(a)(1) and (2)

Under sections 110(a)(1) and (2) of the Act, states are required to submit SIPs that 

provide for the implementation, maintenance, and enforcement (the infrastructure) of a new or 

revised NAAQS within three years following the promulgation of the NAAQS, or within such 

shorter period as EPA may prescribe. Section 110(a)(2) lists the specific infrastructure elements 

that must be incorporated into the SIPs, including for example, requirements for air pollution 

control measures, which are designed to assure attainment and maintenance of the NAAQS.

Section III of this TSD provides a description of all 14 infrastructure elements that comprise 

section 110(a)(2) of the Act. The schedule for completion of EPA’s periodic review of both SO2

NAAQS was established in Section 109 (d)(1) of the CAA, which requires that “not later than 

December 31, 1980, and at 5-year interval thereafter, the EPA shall complete a thorough review 

of the criteria published under section 108 and the national ambient air quality standards, “... and 

shall make such revisions in such criteria and standards and promulgate such new standards as 

may be appropriate in accordance with section 108”. 

For the 2010 SO2 NAAQS, states typically have met many of the basic program elements 

required in section 110(a)(2) through earlier SIP submissions in connection with previous 

NAAQS. Nevertheless, pursuant to section 110(a)(1), states have to review and revise, as 

appropriate, their existing SIPs to ensure that they are adequate to address the 2010 SO2

NAAQSs. To assist states in meeting this statutory requirement, EPA issued guidance on 

September 13, 2013, addressing the infrastructure SIP elements required under sections 

110(a)(1) and (2) for most the NAAQS2.

On February 14, 2014 the Secretary of the New Mexico Environmental Department

submitted a letter certifying that NMED has evaluated the New Mexico SIP and found that the 

SIP satisfies all the requirements of section 110(a)(1) and (2) for the 2010 SO2 NAAQS. The 

submittal includes a table with an explanation of how the current New Mexico SIP meets the 

requirements of each applicable element of section 110(a)(2) for the 2010 SO2 NAAQS. This 

TSD provides additional details of New Mexico’s certification and EPA’s evaluation that are not 

included in the official Federal Register notice for this action.

 

2

“Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 

110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.
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B. History of Reviews of the Primary NAAQS for Sulfur Oxides

On April 30, 1971, EPA promulgated primary (health-based) SO2 NAAQS (36 FR 8187). 

These primary standards, which were based on the findings outlined in the original 1969 Air 

Quality Criteria for Sulfur Oxides, were set at 0.14 parts per million (ppm) averaged over a 24 

hour period, not to be exceeded more than once per year, and 0.030 ppm annual arithmetic mean. 

In 1982, EPA published the Air Quality Criteria for Particulate Matter and Sulfur Oxides (EPA, 

1982) along with an addendum of newly published controlled human exposure studies, which 

updated the scientific criteria upon which the initial standards were based (EPA, 1982). In 1986, 

EPA published a second addendum presenting newly available evidence from epidemiologic and 

controlled human exposure studies (EPA, 1986). In 1988, EPA published a proposed decision 

not to revise the existing standards (53 FR 14925)(April 26, 1988). However, EPA specifically 

requested public comment on the alternative of revising the current standards and adding a new 

1-hour primary standard of 0.4 ppm (400 ppb) to protect asthmatics against 5-10 minute peak 

SO2 concentrations. 

As a result of public comments on the 1988 proposal and other post-proposal 

developments, EPA published a second proposal on November 15, 1994 (59 FR 58958). The 

1994 re-proposal was based in part on a supplement to the second addendum of the criteria 

document which evaluated new findings on 5-10 minute SO2 exposures in asthmatics (EPQ, 

1994a; EPA 1994b). As in the 1988 proposal, EPA proposed to retain the existing 4-hour and 

annual standards. EPA also solicited comment on three regulatory alternatives to further reduce 

the health risk posed by exposure to high 5-minute peaks of SO2 if additional protection were 

judged to be necessary. The three alternatives were: (1) Revising the existing primary SO2

NAAQS by adding a new 5-minute standard of 0.6 ppm (600 ppb) SO2; (2) establishing a new 

regulatory program under section 303 of the Act to supplement protection provided by the 

existing NAAQS, with a trigger level of 0.6 ppm (600 ppb) SO2, one expected exceedance; and 

(3) augmenting implementation of existing standards by focusing on those sources or source 

types likely to produce high 5-minute peak concentrations of SO2.

On May 22, 1996, EPA announced its final decision not to revise the NAAQS for SOx

(61 FR 25566). EPA found that asthmatics- a susceptible population group- could be exposed to 

short-term SO2 bursts resulting in repeated ‘exposure events’ such that tens or hundreds of 

thousands of asthmatics could be exposed annually to lung function effects “distinctly exceeding 

... [the] typical daily variation in lung function” that asthmatics routinely experience, and found 

further that repeated occurrences should be regarded as significant from a public health 

standpoint (61 FR at 25572, 25573). Nonetheless, the agency concluded that “the likelihood that 

asthmatic individuals will be exposed.... is very low when viewed from a national perspective”, 

that “5-minute peak SO [2] levels do not constitute the type of ubiquitous public health problem 

for which establishing a NAAQS would be appropriate.” id. At 25575. EPA concluded, 

therefore, that it would not revise the existing standards or add a standard to specifically address 

5-minute exposures. EPA also announced an intention to propose guidance, under section 303 of 

the Act, to assist States in responding to short-term peaks of SO2 and later initiated a rulemaking 

to do so (62 FR 210, Jan. 2, 1997).

The American Lung Association and the Environmental Defense Fund challenged EPA’s 

decision not to establish a 5-minue standard. On January 30, 1998, the Court of Appeals for the 

District of Columbia Circuit found that EPA had failed to adequately explain its determination 

that no revision to the SO2 NAAQS was appropriate and remanded the determination back to 

EPA for further explanation. Specifically, the court held that EPA had failed to adequately 

explain the basis for its conclusion that short-term SO2 exposures to asthmatics do not constitute 

a public health problem, noting that the agency had failed to explain the link between its finding 
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that repeated short-term exposures were significant, and that there would be tens to hundreds of 

thousands of such exposures annually to susceptible subpopulation. The court also rejected the 

explanation that short-term SO2 bursts were “localized, infrequent, and site-specific” as a rational 

basis for the conclusion that no public health problem existed for purposes of section 109: 

“[N]othing in the Final Decision explains why ‘localized’, ‘site-specific’, or even ‘infrequent’ 

events might nevertheless create a public health problem, particularly since, in some sense, all 

pollution is local and site-specific...”Id. The court accordingly remanded the case to EPA to 

adequately explain its determination or otherwise take action in accordance with the opinion. In 

response, EPA has collected and analyzed additional air quality data focused on 5-minute 

concentrations of SO2. These air quality analyses conducted since the last review helped inform 

the current review, which address the issues raised in the court’s remand of the Agency’s last 

decision.

EPA formally initiated the current review of the air quality criteria for oxides of sulfur 

and the SO2 primary NAAQS on May 15, 2006 (71 FR 28023) with a general call for 

information. EPA’s draft Integrated Review Plan for the Primary National Ambient Air Quality 

Standards for Sulfur Dioxide (EPA, 2007a) was made available in April 2007 for public 

comment and was discussed by the Clean Air Scientific Advisory Committee (CASAC) via a 

publicly accessible teleconference on May 11, 2007. As noted in that plan, SOx includes multiple 

gaseous (e.g., SO3) and particulate (e.g., sulfate) species. Because the health effects associated 

with particulate species of SOx have been considered within the context of the health effects of 

ambient particles in the Agency’s review of the NAAQS for particulate matter (PM), the current 

review of the primary SO2 NAAQS is focused on the gaseous species of SOx and does not 

consider health effects directly associated with particulate species. 

The first draft of the Integrated Science Assessment for Oxides of Sulfur-Health Criteria 

(ISA) and the Sulfur Dioxide Health Assessment Plan: Scope and Methods for Exposure and 

Risk Assessment (EPA, 2007b) were reviewed by CASAC at public meeting held on December 

5-6 2007. Based on comments received from CASAC and from the public, EPA developed the 

second draft of the ISA and the first draft of the Risk and Exposure Assessment to Support the 

Review of the SO2 Primary National Ambient Air Quality Standard (Risk and Exposure 

Assessment (REA)). These documents were reviewed by CASAC at a public meeting held on 

July 30-31, 2008. Based on comments received from CASAC and the public at this meeting, 

EPA released the final ISA in September of 2008 (EPA, 2008a; henceforth referred to as ISA). In 

addition, comments received were considered in developing the second draft of the REA. 

Importantly, the second draft of the REA contained a draft staff policy assessment that 

considered the evidence presented in the final ISA and the air quality, exposure, and risk 

characterization results presented in the second draft REA, as they related to the adequacy of the 

current SO2 NAAQS and potential alternative primary SO2 standards. This document was 

reviewed by CASAC at a public meeting held on April 16-17, 2009. In preparing the final REA 

report, which included the final staff policy assessment, EPA considered comments received 

from CASAC and the public at and subsequent to that meeting. The final REA containing the 

final staff policy assessment was completed in August 2009 (EPA 2009a; henceforth referred to 

as REA).

On December 8, 2009 EPA published its proposed revisions to the primary SO2 NAAQS. 

74 FR 64810 presented a number of conclusions, findings and determinations proposed by the 

Administrator. EPA invited general, specific and/or technical comments on all issues involved 

with this proposal, including all such proposed judgments, conclusions, findings and 

determinations. EPA invited specific comment on the level, or range of levels appropriate for 

such a standard, as well as on the rationale that would support that level or range of levels. These 

comments were carefully considered by the Administrator as she made her final decisions, as 

described in this notice, on the primary SO2 NAAQS.
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The scheduled for completion of the review was governed by a judicial order resolving a 

lawsuit filed in September, 2005, concerning the timing of the current review. Center for 

Biologic Diversity v. Johnson (Civ. No. 05-1814) (D.D.C. 2007). The order that governed this 

review, entered by the court in August 2007 and amended in December 2008, provides that the 

Administrator will sign, for publication, a final rulemaking concerning the review of the primary 

SO2 NAAQS no later than June 2, 2010. The Primary National Ambient Air Quality Standard for 

Sulfur Dioxide was published on June 22, 2010, 75 FR 35520.

In 75 FR 35520, EPA published revisions to the primary SO2 NAAQS. Specifically, EPA 

replaced the 24-hour and annual standards with a new short-term standard based on the 3 year 

average of the 99th percentile of the yearly distribution of 1-hour daily maximum SO2

concentration. EPA also established a requirement for an SO2 monitoring network. These new 

provisions require monitors in areas where there is an increased coincidence of population and 

SO2 emissions. EPA also made conforming changes to the Air Quality Index (AQI). The 2010 

revision of the SO2 NAAQS did not address the secondary standard, which remains a 3-hour 

standard with a level of 0.5 ppm. (75 FR 35520).The secondary SO2 standard has remained 

unchanged since 19733.The 2010 SO2 NAAQS require states have to review and revise, as 

appropriate, their existing SIPs to ensure that they are adequate to meet the standards. 

II. Additional Background

A. What are the National Ambient Air Quality Standards?

Section 109 of the Act requires EPA to establish NAAQS for pollutants that “may 

reasonably be anticipated to endanger public health and welfare,” and to develop a primary and 

secondary standard for each NAAQS. The primary standard is designed to protect human health 

with an adequate margin of safety, and the secondary standard is designed to protect public 

welfare and the environment. EPA has set NAAQS for six common air pollutants, referred to as 

criteria pollutants. These pollutants are: carbon monoxide, lead, nitrogen dioxide, ozone, 

particulate matter, and sulfur dioxide. These standards present state and local governments with 

the minimum air quality levels they must meet to comply with the Act. Additionally, these 

standards provide information to residents of the United States about the quality of the air in their 

communities.

B. What is a SIP?

A State Implementation Plan, or SIP, is a set of state statutes, air pollution regulations, 

control strategies, other means or techniques, and technical analyses developed by the state, to 

ensure that the state meets the NAAQS. The SIP is required by section 110 and other provisions 

of the Act. These SIPs can be extensive, containing state regulations or other enforceable 

documents and supporting information such as emissions inventories, monitoring networks, and 

modeling demonstrations. Each state must submit these regulations and control strategies to EPA 

for approval and incorporation into the federally enforceable SIP. Each federally approved SIP 

protects air quality primarily by addressing air pollution at its point of origin.

 

3 38 FR 25678 September 14, 1973
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C. Additional Information

As indicated in the Federal Register notice for this action, this proposed rulemaking will 

not cover four substantive issues that are not integral to acting on a state’s infrastructure SIP 

submission: (i) existing provisions related to excess emissions during periods of start-up, 

shutdown, or malfunction at sources, that may be contrary to the CAA and EPA’s policies 

addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's 

variance” or “director's discretion” that purport to permit revisions to SIP approved emissions 

limits with limited public process or without requiring further approval by EPA, that may be 

contrary to the CAA (“director's discretion”); (iii) existing provisions for minor source NSR 

programs that may be inconsistent with the requirements of the CAA and EPA’s regulations that 

pertain to such programs (“minor source NSR”); and, (iv) existing provisions for PSD programs 

that may be inconsistent with current requirements of EPA’s “Final NSR Improvement Rule,” 67 

FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). 

Instead, EPA has indicates that it has other authority to address any such existing SIP defects in 

other rulemakings, as appropriate. A detailed rationale for why these four substantive issues are 

not part of the scope of infrastructure SIP rulemakings can be found in EPA’s July 13, 2011, 

final rule entitled, “Infrastructure SIP Requirements for the 1997 8-hour Ozone and PM2.5

National Ambient Air Quality Standards” in the section entitled, “What is the scope of this final 

rulemaking?” (see 76 FR 41075 at 41076-41079).

The CAA Section 110(a)(2)(C) requires that the SIP include measures to regulate 

construction and modification of stationary sources to protect the NAAQS. With respect to 

smaller statewide minor sources Section 110(a)(2)(C) creates “a general duty on States to include 

a program in their SIP that regulates the modification and construction of any stationary source 

as necessary to assure that the NAAQS are achieved” (70 FR 71612 and 71677). EPA provides 

states with discretion in implementing their minor NSR programs (71 FR 48696 and 48700). The 

“considerably less detailed” regulations for minor NSR are provided in 40 CFR 51.160 through 

51.164. EPA has determined that New Mexico’s minor NSR program adopted pursuant to 

section 110(a)(2)(C) of the CAA regulates emissions of all regulated air contaminants for which 

there is a NAAQS (see 20.2.72.200 NMAC). New Mexico’s minor NSR permitting 

requirements are found at 20.2.72 NMAC - Construction Permits and were approved into the SIP 

on May 14, 1973 (38 FR 12702), with revisions approved on September 26, 1997 (62 FR 50514), 

June 13, 2012(77 FR 35273), and March 11 2013 (78 FR 15296). 

New Mexico’s PSD rules have been revised a number of times over time. Most recently, 

EPA approved the portions of the June 11, 2009 submittal associated with implementing NOx as 

a precursor (75 FR 72688) as necessary to implement the 1997 ozone standard. In addition, EPA 

approved revisions to New Mexico’s PSD program into the SIP on August 21, 1990 (55 FR 

34013), May 2, 1991 (56 FR 20137), October 15, 1996 (61 FR 53639), March 10, 2003 (68 FR 

11316), December 24, 2003 (68 FR 74483), September 5, 2007 (72 FR 50879), November 26, 

2010 (75 FR 72688), July 20, 2011 (76 FR 43149), and March 11, 2013 (78 FR15296). 

Additionally, on June 11, 2009 and May 23, 2011, New Mexico submitted modifications to 

revise the state’s PSD and NNSR permitting regulations to address the permitting requirements 

associated with the NAAQS for 8-hour ozone and PM2.5, respectively (78 FR 4339). With these 

approvals, New Mexico has a fully approved PSD program addressing all regulated NSR 

pollutants.
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III. SIP elements required under Section 110(a)(2) for the 2010 Sulfur Dioxide NAAQS, 

the State’s submittal and EPA’s analysis

The Federally approved SIP for each state is listed in 40 CFR 52. The first section in this 

subpart for any state is the “Identification of plan.” The Identification of plan lists the EPAapproved provisions of the SIP for each state, as provided under section 110 of the Act, 42 

U.S.C. 7410, and 40 CFR 51 to meet the NAAQS. The status of the New Mexico SIP is provided 

in 40 CFR Part 52, Subpart GG, sections 1620 to 1640. The Identification of plan for New 

Mexico is in section 1620; this constitutes the applicable SIP for New Mexico, for purposes of 

the Act.

New Mexico’s Environmental Improvement Act (EIA) and Air Quality Control Act 

(AQCA) authorize the NMED to regulate air quality and implement air quality control 

regulations. Specifically, the New Mexico AQCA delegates authority to the Environmental 

Improvement Board (EIB) to adopt, promulgate, publish, amend and repeal regulations 

consistent with the State’s AQCA to attain and maintain NAAQS and prevent or abate air 

pollution (New Mexico Statutes Annotated (NMSA) 1978, Section 74-2-5(B)). The AQCA also 

designates the NMED as the State’s air pollution control agency, and the EIA provides the 

NMED with enforcement authority. These statutes have been approved into the SIP (see 44 FR 

21019, April 9, 1979; revised 49 FR 44101, November 2, 1984; re-codified and approved in 62 

FR 50518, September 26, 1997).

NMED’s air quality rules and standards are codified at Title 20 Environmental 

Protection, Chapter 2 Air Quality (Statewide) of New Mexico Administrative Code (NMAC). 

Numerous parts of the regulations codified into Chapter 2 necessary for implementing and 

enforcing the NAAQS have been adopted into the SIP. The approved SIP for New Mexico is 

documented at 40 CFR Part 52.1620, Subpart GG. 

Per the General Preamble to the 1990 Clean Air Act Amendments (April 16, 1992 at 57 

FR 13498), section 110(a)(2) sets forth elements that a SIP must contain in order to be fully 

approved.4In the following sections of this document we provide additional information, not 

included in the Federal Register notice for this action, which we considered in performing our 

evaluation of New Mexico’s infrastructure SIP submittal for the 2010 SO2 NAAQS. Where it is 

useful, we include tables showing the date that the applicable state rules were approved by EPA 

into the New Mexico SIP.

1. Enforceable emission limits and other control measures: Section 110(a)(2)(A) requires 

SIPs to include enforceable emission limits and other control measures, means or techniques, as 

well as schedules and timetables for compliance, as necessary or appropriate to meet the 

requirements of this chapter.

The State’s response: In its submittal, the State of New Mexico indicates that New Mexico’s 

enforceable emission limitations and other control measures are covered in the AQCA and those 

provisions of the New Mexico Administrative Code (NMAC) Title 20- Environment Protection, 

Chapter 2- Air Quality, listed in 40 CFR Part 52 Subpart GG, and source-specific provisions 

codified at 40 CFR Part 52 Subpart GG. The State also asserted that the regulations authorized 

by Chapter 74- Environmental Improvement of New Mexico’s state statute (1978 NMSA) are 

duly adopted by the Environmental Improvement Board, and where these provisions relate to 

section 110 requirements, SIP revisions have been submitted to and approved by EPA. The State 

also indicates that New Mexico has an EPA approved air permitting program for both major and 

 

4 The discussion of section 110(a)(2), subsections (A) through (M) begins on p. 13556 of the General Preamble.
Page 8 of 29

minor sources, which ensures that all applicable requirements are included in the source’s 

permit. Current data shows that New Mexico meets the 1-hour 400 ppb SO2 standard5. 

Furthermore, the State asserts that, pursuant to NMAC 20.2.7, it does not exempt from 

enforcement any excess emissions that occur during periods of startup, shutdown, maintenance, 

or malfunction. Emissions in excess of permit or regulatory limits are presumptively violations, 

subject to affirmative defenses with the burden of proof on the respondent.

EPA analysis: Section 110(a)(2)(A) requires that all measures and other elements in the SIP be 

enforceable. This subsection also authorizes SIPs to contain certain nontraditional techniques for 

reducing pollution – economic incentives, marketable permits, and auctions of emissions rights. 

The EPA reads this language to require even these other means of achieving reductions to be 

enforceable.6 The Air Quality Control Act designates the NMED as the State’s air pollution 

control agency and the Environmental Improvement Act provides the NMED with enforcement 

authority. We reviewed the New Mexico SIP and found state rules adequate to implement and 

enforce the 2010 SO2 NAAQS, and limit or reduce emissions of SO2. These rules include 

emission limits, control measures, as well as permits and fees. Table 1 below provides a list of 

New Mexico regulations and emissions standards that have been approved by EPA into the New 

Mexico SIP and thus are federally enforceable.

Table 1: New Mexico rules relevant to meeting section 110(a)(2)(A):

Relevant Section of New Mexico’s SIP EPA Approval/Federal Register7

20.2.1 NMAC – General Provisions August 12, 2012 at 75 FR 48860

20.2.2 NMAC – Definitions September 26, 1997 at 62 FR 50514

20.2.3 NMAC - Ambient Air Quality 

Standards September 26, 1997 at 62 FR 50514

20.2.5 NMAC - Source Surveillance September 26, 1997 at 62 FR 50514

20.2.7 NMAC - Excess Emissions September 14, 2009 at 74 FR 46910

20.2.8 NMAC - Emissions Leaving New 

Mexico September 26, 1997 at 62 FR 50514

20.2.10 NMAC - Woodwaste Burners September 26, 1997 at 62 FR 50514

20.2.11 NMAC - Asphalt Process Equipment September 26, 1997 at 62 FR 50514

20.2.12 NMAC - Cement Kilns September 26, 1997 at 62 FR 50514

20.2.13 NMAC - Gypsum Processing Plants September 26, 1997 at 62 FR 50514

20.2.14 NMAC - Particulate Emissions from 

Coal Burning Equipment September 26, 1997 at 62 FR 50514

20.2.15 NMAC - Pumice, Mica and Perlite 

Process Equipment September 26, 1997 at 62 FR 50514

20.2.16 NMAC - Nonferrous Smelters (New 

and Existing)- Particulate Matter September 26, 1997 at 62 FR 50514

20.2.17 NMAC - Nonferrous Smelters 

(Existing)- Particulate Matter September 26, 1997 at 62 FR 50514

20.2.18 NMAC - Oil Burning EquipmentParticulate Matter September 26, 1997 at 62 FR 50514

 

5 http://air.nmenv.state.nm.us/

6 See 57 FR 13498, beginning on p. 13556.

7 This is the EPA approval date currently found in New Mexico’s Identification of Plan at 40 CFR 52.1620(c). This 

date reflects our most recent approval of revisions to the applicable New Mexico air regulations in the New Mexico 

SIP.
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Relevant Section of New Mexico’s SIP EPA Approval/Federal Register7

20.2.19 NMAC - Potash, Salt or Sodium 

Sulfate Processing Equipment- Particulate 

Matter

September 26, 1997 at 62 FR 50514

20.2.20 NMAC - Lime Manufacturing PlantsParticulate Matter September 26, 1997 at 62 FR 50514

20.2.21 NMAC - Fugitive Particulate Matter 

Emissions from Nonferrous Smelters September 26, 1997 at 62 FR 50514

20.2.22 NMAC - Fugitive Particulate Matter 

Emissions from Roads Within the Town of 

Hurley

September 26, 1997 at 62 FR 50514

20.2.30 NMAC - Kraft Mills September 26, 1997 at 62 FR 50514

20.2.31 NMAC - Coal Burning EquipmentSulfur Dioxide September 26, 1997 at 62 FR 50514

20.2.32 NMAC - Coal Burning EquipmentNitrogen Dioxide September 26, 1997 at 62 FR 50514

20.2.33 NMAC - Gas Burning EquipmentNitrogen Dioxide September 26, 1997 at 62 FR 50514

20.2.34 NMAC - Oil Burning EquipmentNitrogen Dioxide September 26, 1997 at 62 FR 50514

20.2.40 NMAC - Sulfuric Production UnitsSulfur Dioxide, Acid Mist and Visible 

Emissions

September 26, 1997 at 62 FR 50514

20.2.41 NMAC - Nonferrous Smelters- Sulfur September 26, 1997 at 62 FR 50514

20.2.60 NMAC – Open Burning September 26, 1997 at 62 FR 50514

20.2.61 NMAC – Smoke and Visible 

Emissions September 26, 1997 at 62 FR 50514

20.2.72 NMAC - Construction Permits September 26, 1997 at 62 FR 50514

20.2.73 NMAC - Notice of Intent and 

Emissions Inventory Requirements August 12, 2010 at 75 FR 48860

20.2.74 NMAC - Permits- Prevention of 

Significant Deterioration September 26, 1997 at 75 FR 72688

20.2.75 NMAC - Construction Permit Fees September 26, 1997 at 62 FR 50514

20.2.79 NMAC – Permits – Nonattainment 

Areas September 5, 2007 at 72 FR 50879

20.2.8 NMAC – Stack Heights September 26, 1997 at 62 FR 50514

20.2.98 NMAC - General Conformity September 9, 1998 at 63 FR 48109

20.2.99 NMAC - Transportation Conformity Various – see 40 CFR 52.1620

2. Ambient air quality monitoring and data analysis system: Section 110(a)(2)(B) requires 

SIPs to include provisions for establishment and operation of ambient air quality monitors, 

collecting and analyzing ambient air quality data, and making these data available to EPA upon 

request.

The State’s response: In its submittal, the NMED stated that New Mexico maintains and 

operates a multi-station network to measure ambient levels within the state for comparison to the 

NAAQS. All monitoring data is measured using EPA approved methods as either Reference or

Equivalent monitors. All monitors are subjected to the quality assurance requirements of 40 CFR 

Part 58, Appendix A, and are located at sites that have met the minimum siting requirements of 
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Part 58, Appendix E. The data is submitted to EPA’s Air Quality System (AQS) system in 

accordance with the schedule prescribed by 40 CFR Part 58. New Mexico SIP satisfies this 

particular element of section 110(a)(2)(B). 

The AQCA at NMSA 1978, section 74-2-5 provides the enabling authority necessary for 

the New Mexico EIB and NMED to fulfill the requirements of section 110(a)(2)(B). Along with 

their other duties, the Air Quality Board within NMED collects air monitoring data, qualityassures the results, and reports the data.The New Mexico statewide air quality surveillance 

network was approved into the New Mexico SIP by EPA on August 6, 1981 (46 FR 40005). 

Furthermore, New Mexico’s air quality surveillance network undergoes recurrent annual review 

by EPA, as required by 40 CFR 58.10. On September 12, 2014, NMED submitted its 2014

Annual Air Monitoring Network Plan (AAMNP) that included ambient monitoring for the 2010 

SO2 NAAQS, and EPA approved the 2014 AAMNP on April 14, 2015.

8

In addition, NMED 

conducts a recurrent assessment of its monitoring network every five years, which includes an 

evaluation of the need to conduct ambient monitoring for SO2, as required by 40 CFR 58.10(d). 

The most recent of these 5-year monitoring network assessments was conducted by NMED and 

submitted in June 2010, and was subsequently approved by EPA.9 NMED operated three SO2

monitoring stations at the end of 2013. The Air Quality Bureau requested and received 

permission to decommission one SO2 monitoring station in 2014. 

EPA analysis: As noted in the Federal Register notice for this proposed action, our analysis 

included review of New Mexico’s recurrent 5-year ambient monitoring network assessment 

submitted in June 2010 and New Mexico’s annual ambient monitoring network review submitted 

in July 2013. Copies of these documents are available in the docket for this rulemaking.

Historically, there have been three sulfur dioxide monitors in two regions in New Mexico. The 

state requested to decommission the SO2 monitor at Hurley as part of NMED’s maintenance 

plan. This request was approved by EPA and was scheduled to take effect on September 16, 

2014. As indicated in these documents, the 2010 SO2 NAAQS, EPA regulations require that 

ambient SO2 monitors are based on population per Core-based Statistical Area (CBSA) and 

amount of SO2 emissions within that CBSA, that is, the Population Weighed Emissions Index 

(PWEI) and based on individual state contribution to national SO2 inventory in the 2005 National 

Emissions Inventory (NEI). Based on the PWEI criteria, NMED would not need to deploy any 

new monitors. However, NMED is considering adding an additional SO2 monitor at the Hobbs 

site due to the SO2 standard in order to determine compliance in the Permian Basin as well as the 

Bureau receiving five new point source discharge permitting applications for this area. Based on 

the 2005 NEI criteria, NMED would need one monitor, which is already in operation.

3. Program for enforcement of control measures: The CAA Section 110(a)(2)(C) requires 

states to include the following three elements in the SIP: (1) A program providing for 

enforcement of all SIP measures described in section 110(a)(2)(A); (2) a program for the 

regulation of the modification and construction of stationary sources as necessary to protect the 

applicable NAAQS (i.e., state-wide permitting of minor sources); and (3) a permit program to 

 

8 A copy of the 2013 AAMNP and EPA’s approval letter are included in the docket for this proposed rulemaking.

The 2014 AAMNP was submitted September 12, 2014. At the time of this writing, it had not been approved.

9 A copy of the 2010 5-year ambient monitoring network assessment and EPA’s approval letter are included in the 

docket for this proposed rulemaking.
Page 11 of 29

meet the major source permitting requirements of the CAA (for areas designated as attainment or 

unclassifiable for the NAAQS in question).10

The State's response: In its submittal, the State indicates that NMED has established regulations, 

including NMAC sections 20.2.72, 20.2.74, and 20.2.79, which govern the enforcement of 

control measures, including attainment plans and permitting programs that regulate construction 

and modification of stationary sources. The State asserts that NMED’s PSD program applies to 

sources that emit greenhouse gases in accordance with EPA’s tailoring rule (see 20.2.74.AZ 

NMAC).

The New Mexico statutes provide authority for the EIB and the NMED to enforce the 

requirements of the AQCA, and any regulations, permits, or final compliance orders issued under 

the provisions of the AQCA. General enforcement authority is provided by NMSA 1978, section 

74-1 and NMSA 1978, section 74-2, which addresses general enforcement power; investigation 

and remediation agreements; civil and criminal penalties; compliance orders; emergency cease 

and desist orders; civil actions; and the field citation program. The EIA, which has been 

approved into the SIP (49 FR 44101, 64 FR 29255), authorizes the creation of the EIB(NMSA 

1978, section 74-1-4); authorizes the EIB, the NMED, and its Secretary to file lawsuits, conduct 

investigations and enter into remediation agreements, enforce rules, regulations and orders 

promulgated by the EIB, and collect civil penalties (NMSA 1978, section 74-1-6); develop and 

enforce rules and standards related to protection of air quality (NMSA 1978, sections 74-1-7 and 

74-1-8); and issue compliance orders and commence civil actions in response to violations 

(NMSA 1978, section 74-1-10).

Likewise, the AQCA empowers the EIB and NMED to institute legal proceedings to 

compel compliance with the AQCA and any regulations of the EIB or local air quality control 

agencies (NMSA 1978, section 74-2-5.1); issue compliance orders, commence civil actions, and 

issue field citations (NMSA 1978, section 74-2-12); assess civil penalties for violations of the 

AQCA or regulations promulgated under it or permits issued (NMSA 1978, section 74-2-12.1); 

conduct inspections of regulated entities (NMSA 1978, section 74-2-13); and pursue criminal 

prosecutions (NMSA 1978, section 74-2-14). Additional enforcement authorities and funding 

mechanisms are provided by the AQCA at NMSA 1978, section 74-2-15. These sections of the 

AQCA were adopted into the SIP on November 2, 1984 (49 FR 44101).

NMED air quality standards and regulations containing specific enforcement provisions 

and adopted into the SIP include: 20.2.7 NMAC Excess Emissions (74 FR 46910) and 20.2.72 

Construction Permits (38 FR 12702 and 62 FR 50514).

General enforcement authority is provided by NMSA 1978, section 74-1 and NMSA 

1978, section 74-2, which addresses general enforcement power; investigation and remediation 

agreements; civil and criminal penalties; compliance orders; emergency cease and desist orders; 

civil actions; and the field citation program. 

New Mexico also has a program approved by EPA as meeting the requirements of Part C, 

relating to prevention of significant deterioration of air quality. In order to demonstrate that New 

Mexico has met this sub-element, this PSD program must cover requirements not just for the 

2010 SO2 NAAQS, but for all other regulated NSR pollutants as well. 

PSD programs apply in areas that are meeting the NAAQS, referred to as areas in 

attainment, and in areas for which there is insufficient information to designate as either 

attainment or nonattainment, referred to as unclassifiable areas. New Mexico’s PSD program 

was conditionally approved into the SIP on February 27, 1987 (52 FR 5964) and fully approved 

 

10 As discussed in further detail below, this infrastructure SIP rulemaking will not address the

New Mexico program for provisions related to nonattainment areas, since EPA considers evaluation of 

these provisions to be outside the scope of infrastructure SIP actions.
Page 12 of 29

on August 15, 2011 (76 FR 41698). New Mexico’s PSD rules have been revised a number of 

times over time. Most recently, EPA approved the portions of a June 11, 2009 submittal 

associated with implementing NOx as a precursor (75 FR 72688) as necessary to implement the 

1997 ozone standard. In addition, EPA approved a May 23, 2011, revision in a Federal Register 

notice signed January 22, 2013, as these elements are necessary for implementation of the PM2.5 

standard (78 FR 4339). With these approvals, New Mexico has a fully approved PSD program 

addressing all regulated NSR pollutants

EPA analysis: Refer to Table 1 above or the table of EPA-approved New Mexico Regulations 

and Statutes at 40 CFR 52.1606 for a list of the state rules and laws that we evaluated in our 

review of New Mexico’s infrastructure SIP submittal.

EPA provides states with discretion in implementing their minor NSR programs (71 FR 

48696 and 48700). The “considerably less detailed” regulations for minor NSR are provided in 

40 CFR 51.160 through 51.164. EPA has determined that New Mexico’s minor NSR program 

adopted pursuant to section 110(a)(2)(C) of the CAA regulates emissions of all regulated air 

contaminants for which there is a NAAQS (see 20.2.72.200 NMAC). New Mexico’s minor NSR 

permitting requirements are found at 20.2.72 NMAC - Construction Permits and were approved 

into the SIP on May 14, 1973 (38 FR 12702), with revisions approved on September 26, 1997 

(62 FR 50514), June 13, 2012(77 FR 35273), and March 11 2013 (78 FR 15296). 

In this action, EPA is proposing to approve New Mexico’s infrastructure SIPs for the 

2010 SO2 standards with respect to the general requirement in section 110(a)(2)(C) to include a 

program in the SIP that regulates the modification and construction of any stationary source as 

necessary to assure that the NAAQS are achieved. However, EPA is not proposing to approve or 

disapprove New Mexico’s existing minor NSR program to the extent that it may be inconsistent 

with EPA's regulations governing this program. EPA has maintained that the CAA does not 

require that new infrastructure SIP submissions correct any defects in existing EPA-approved 

provisions of minor NSR programs in order for EPA to approve the infrastructure SIP for 

element C (e.g., 76 FR 41076-41079). EPA believes that a number of states may have minor 

NSR provisions that are contrary to the existing EPA regulations for this program. The statutory 

requirements of section 110(a)(2)(C) provide for considerable flexibility in designing minor NSR 

programs, and EPA believes it may be time to revisit the regulatory requirements for this 

program to give the states an appropriate level of flexibility to design a program that meets their 

particular air quality concerns, while assuring reasonable consistency across the country in 

protecting the NAAQS with respect to new and modified minor sources.

4. Interstate transport, and interstate and international pollution abatement: Section 

110(a)(2)(D) is divided into two components, 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 

110(a)(2)(D)(i) requires SIPs to include provisions prohibiting any source or other type of 

emissions activity in one state from contributing significantly to nonattainment in, or interfering 

with maintenance of the NAAQS, in another state, or from interfering with measures required to 

prevent significant deterioration of air quality or to protect visibility in another state. 

Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with 

sections 115 and 126 of the Act, relating to interstate and international pollution abatement.

The State's response: Based on EPA guidance from the November 19, 2012 EPA Gina 

McCarthy Memo, "Next Steps for Pending Redesignation Requests and State Implementation 

Plan Actions Affected by the Recent Court Decision Vacating the 2011 Cross-State Air Pollution 

Rule," the requirements of § 110 ( a)(2)(D)(i)(I) are not being addressed in this infrastructure SIP 

submittal.

The CAA Section 110(a)(2)(D)(i) includes four requirements referred to as prongs 1 
Page 13 of 29

through 4. Prongs 1 and 2 are provided at section 110(a)(2)(D)(i)(I), and prongs 3 and 4 are 

provided at section 110(a)(2)(D)(i)(II). Section 110(a)(2)(D)(i)(I) requires SIPs to include 

adequate provisions prohibiting any source or other type of emissions activity in one state from 

contributing significantly to nonattainment (Prong 1), or interfering with maintenance (Prong 2), 

of any NAAQS in another state. Section 110(a)(2)(D)(i)(II) requires SIPs to include adequate 

provisions prohibiting any source or other type of emissions activity in one state from interfering 

with measures required of any other state to prevent significant deterioration of air quality (Prong 

3) or to protect visibility (Prong 4). 

With respect to prongs 1 and 2, New Mexico elected not to make a submittal, consistent 

with a court decision that was relevant at the time (EME Homer City Generation, L.P. v. E.P.A,

696 F.3d7 (D.C.Cir.2012)). This decision was later reversed by the Supreme Court (EPA v. EME 

Homer City Generation, L.P., 134 S. Ct. 1584 (2014), reversing 696 F.3d 7 (D.C. Cir. 2012)). 

With respect to prong 3, as noted above, the New Mexico PSD program contains the necessary 

provisions to meet the prevention of significant deterioration element as required and has been 

approved by EPA into the SIP.

With respect to prong 4, as noted previously, on November 27, 2012, EPA approved the 

New Mexico Regional Haze SIP except for the BART determination for SJGS. On October 9, 

2014, EPA approved the Best Available Retrofit Technology (BART) determination for San 

Juan Generating Station (SJGS) and found that the New Mexico SIP satisfies the requirements of 

CAA 110(a)(2)(D)(i)(II) with respect to interstate transport of air pollution and visibility 

protection (October 9, 2014, 79 FR 26909).

Finally, section 110(a)(2)(D)(ii) regards the interstate pollution abatement requirements 

of section 126 and the international pollution requirements of section 115. As stated above in 

Section 110(a)(2)(C) of the infrastructure SIP, New Mexico has a SIP-approved PSD program 

which includes provisions that satisfy the interstate pollution abatement requirements of section 

126 of the CAA. Section 115 of the CAA authorizes EPA to require a state to revise its SIP 

under certain conditions to alleviate international transport into another country. 

EPA analysis: As stated above, the submittal did not address CAA 110(a)(2)(D)(i)(I). Updated 

information and background for the Cross-State Air Pollution Rule can be found at

http://www.epa.gov/crossstaterule. We expect that New Mexico will make a SIP submittal for 

prongs 1 and 2 at a later time. There are no final findings under section 115 of the CAA with 

respect to any air pollutant generated in New Mexico. Therefore, New Mexico has no obligation 

under section 115. If there are future final findings under section 115 of the CAA, NMED will 

consult with EPA.

5. Adequate personnel, funding, and authority: Section 110(a)(2)(E) requires states to 

provide for adequate personnel, funding, and legal authority under state law to carry out its SIP 

and related programs. It also requires compliance with state board composition and conflicts of 

interest contained in section 128 of the Act and requires assurances that the state retain primacy 

for implementation of the SIP in cases where the state relies upon local or regional government 

agencies.

The State’s response: With regards to section 110(a)(2)(E)(i), which pertains to adequate 

personnel, funding, and authority, the State of New Mexico indicates that New Mexico state 

statute, NMSA 1978, section 74-2-5 provides the state’s EIB authority to develop, implement, 

and enforce the SIP; adopt emissions standards and limitations and any other measures necessary 

for attainment and maintenance of national standards; and enforce applicable laws, regulations, 

standards, and compliance schedules, and seek injunctive relief. 
Page 14 of 29

The State indicates that the resources necessary to carry out the SIP are provided through 

general funds, permit fees, and the CAA section 103 and 105 grant processes. Permit fees are 

collected under the authority of 74-2-7 NMAC. 

With respect to funding, the AQCA NMSA 1978, section 74-2-7 requires NMED to 

establish an emissions fee schedule for sources in order to fund the reasonable costs of 

administering various air pollution control programs and also authorizes NMED to collect 

additional fees necessary to cover reasonable costs associated with processing of air permit 

applications. The AQCA provides for the deposit of the fees into various subaccounts (e.g., the 

state’s air quality permit fund for the Title V operating permit program used for Title V 

implementation activities; and various subaccounts for local air quality agencies). The NMED 

also receives funding from general revenue funds and EPA grants under, for example, sections 

103 and 105 of the CAA, to finance air quality programs. 

The State asserts that no organizations outside NMED will participate in implementing 

the SIP, and that New Mexico has adequate personnel to implement the SIP with respect to 

requirements of the 2010 SO2 NAAQS. The State does not anticipate the need for additional 

resources to implement the SIP beyond those that have been utilized for the preparation of the 

plan and plan revisions submitted to EPA and other current programmatic demands.

With regards to section 110(a)(2)(E)(ii), which pertains to section 128 requirements for 

state boards, New Mexico indicates that NMSA 1978 Section 74-1-4 provides that the EIB

contain at least a majority of members who represent the public interest and do not derive any 

significant portion of their income from persons subject to, or who appear before the Board, on 

issues relating to the CAA or New Mexico’s Air Quality Control Act. Board members are 

required to recuse themselves from rulemakings in which their impartiality may reasonably be 

questioned. (See 20.1.1.111 NMAC).

With regards to section 110(a)(2)(E)(iii), which pertains to assurances concerning 

reliance on local government agencies, the State indicates that the City of Albuquerque/

Bernalillo County is authorized to carry out all portions of New Mexico’s SIP within the 

jurisdictional boundaries of Bernalillo County. However, NMED and the State Environmental 

Improvement Board retain oversight authority in the event the local authority fails to act. (See 

Section 74-2-4 NMSA).

EPA analysis: EPA conducts periodic program reviews to ensure that the state has adequate 

resources and funding to, among other things, implement the SIP. Based upon review of the 

state's infrastructure SIP submission for the 2010 SO2 NAAQS, and relevant statutory and 

regulatory authorities and provisions referenced in the submission or referenced in New 

Mexico’s SIP, EPA believes that the requirements of section 110(a)(2)(E) are met.

6. Stationary source emissions monitoring and reporting: Section 110(a)(2)(F) requires, as 

may be prescribed by the Administrator, (i) the installation, maintenance and replacement of 

equipment, and the implementation of other necessary steps, by owners or operators of stationary 

sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts 

of emissions and emissions-related data from such sources, and (iii) correlation of such reports 

by the State agency with any emission limitations or standards established pursuant to this Act, 

which reports shall be available at reasonable times for public inspection.

The State's response: In its submittal for the 2010 SO2 NAAQS, the State of New Mexico 

indicates that its regulatory requirements have been codified in 20.2.72 NMAC (Construction 

Permits), 20.2.70 NMAC (Operating Permits), and 20.2.79 NMAC (Permits-Nonattainment 

Areas). The State indicates that requirements in 20.2.7.73 NMAC (Notice of Intent and Emission 

Inventory Requirements) provide for the reporting of emissions inventories in a format 
Page 15 of 29

established by the NMED on a schedule set forth in the regulation. New Mexico also asserts that 

enforceable emission limitations and other control measures are addressed in the State’s Air 

Quality Control Act and those provisions of 20.2 NMAC. The State indicates that 20.2.5 NMAC

(Source Surveillance) establishes the general requirements for maintaining and reporting records 

on emissions, including recordkeeping, data submissions, and public access to emission data. 

State regulations pertaining to sampling and testing are codified at 20.2.72 NMAC 

Construction Permits, 20.2.70 NMAC Operating Permits, and 20.2.79 NMAC Permits –

Nonattainment Areas, and requirements for reporting of emissions inventories are codified at 

20.2.73 NMAC Notice of Intent and Emission Inventory Requirements. In addition, rules at 

20.2.5 NMAC Source Surveillance, establish general requirements for maintaining records and 

reporting emissions. 

EPA analysis: Based upon review of the state's infrastructure SIP submission for the 2010 SO2

NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the 

submission or referenced in New Mexico’s SIP, EPA believes that the requirements of section 

110(a)(2)(F) are met.

7. Emergency power: Section 110(a)(2)(G) requires states to provide for authority to address 

activities causing imminent and substantial endangerment to public health, including adequate 

contingency plans to implement the emergency episode provisions in their SIPs.

The State's response: In its submittal for the 2010 SO2 NAAQS, the State of New Mexico 

indicates that existing statutes provide adequate authority to constrain any sources of SO2

emissions, as necessary, should an emergency situation arise. Under NMSA Section 74-2-10, the 

Secretary of NMED is empowered to bring suit to immediately restrain a facility causing 

emissions that present an imminent and substantial endangerment to public health, welfare, or 

the environment. Alternatively, the NMED Secretary is authorized to issue orders necessary to

protect the public health or welfare, or the environment, and then bring suit against contributing 

sources within 24 hours. If the Secretary brings an action within that time, the order is effective 

for another 48 hours or for such longer period as may be authorized by the court pending 

litigation.

New Mexico adopted an Air Pollution Episode Contingency Plan (55 FR 34013, August 

21, 1990), that addresses air pollution episodes and the occurrence of an emergency due to the 

effects of the pollutants on the health of persons. This Contingency Plan cites the State’s legal 

authority provided to the Secretary of the NMED under NMSA Section 74-2-10 in the event that 

an emergency episode is experienced. The State asserts that the Contingency Plan meets the 

requirements of 40 CFR Part 51, Subpart H, which concerns the prevention of Air Pollution 

Emergency Episodes.

EPA analysis: EPA compared the State rules to 40 CFR 51 Subpart H – Prevention of Air 

Pollution Emergency Episodes and Appendix L to Part 51 - Example Regulations for Prevention 

of Air Pollution Emergency Episodes. Subpart H provides a classification system for episode 

plans. Each region in a state is classified separately with respect to each of the following 

pollutants: Sulfur dioxide, particulate matter, carbon monoxide, nitrogen dioxide, and ozone (40 

CFR 51.150). An area classified as a Priority I region for sulfur dioxide has ambient 

concentrations greater than 100 micrograms per cubic meter (denoted μg/m3) or 0.04 ppm for an 

annual arithmetic mean or 455 μg/m3(0.17 ppm) for a 24- hour maximum. The Priority II 

regions for Sulfur Dioxide are those with ambient concentrations greater than 2.62 μg/m3(1.0 

ppm) for a 24 hour average. Areas that do not meet the criteria for Priority I or II are classified 

Priority III. Table 2 below summarizes the classification for SO2.
Page 16 of 29

Table 6: Classification of Regions for Episode Plans for Sulfur Dioxide

(40 CFR 51.150)

Parameter Priority I Priority II Priority III

Sulfur

Dioxide

Ambient concentrations

> 100 μg/m3(.04 ppm)

annual arithmetic mean; 455

μg/m3(0.17 ppm) 24-hour 

maximum.

Ambient concentrations

> 2.620 μg/m3(1.0 

ppm) 24-hour average.

Areas which do not 

meet the criteria for 

Priority I or II.

The significant harm level (SHL) for the 24-hour SO2 NAAQS is 1.0 parts per million 

(ppm) 24-hour average, as indicated in 40 CFR 51.151. EPA believes that the existing NO2-

related provisions of 40 CFR Subpart H are appropriate. Therefore, EPA expects that for 

purposes of the 2010 SO2 NAAQS, states need only to confirm that they have existing 

emergency episode plan provisions consistent with EPA’s existing regulatory requirements.

In addition, Subpart H at 51.153 provides for reevaluation of episode plans and requires 

that, “States should periodically reevaluate priority classifications of all Regions or portion of 

Regions within their borders. The reevaluation must consider the three most recent years of air 

quality data. If the evaluation indicates a change to a higher priority classification, appropriate 

changes in the episode plan must be made as expeditiously as practicable.” The New Mexico 

data does not indicate a change to a higher priority, but suggests that emergency episode plans 

for the SO2 NAAQS are appropriate at this time.

New Mexico’s Emergency Episode Plan (EEP) was approved into the New Mexico SIP 

on August 21, 1990 (55 FR 34013). We found that the New Mexico EEP provides for the 

pollutants specified under 40 CFR 51.150. Using 2006 through 2010 data, we have determined 

that areas within New Mexico meet the classification for Priority III for Sulfur Dioxide. We 

found that New Mexico’s EEP is consistent with the provisions of 40 CFR 51.151 and 152, and 

Appendix L to Part 51. 

Based on this analysis, we conclude that these New Mexico SIPs meet the requirements 

of section 110(a)(2)(G) for the 2010 SO2 NAAQS.

8. Future SIP revisions: Section 110(a)(2)(H) requires states to have the authority to revise 

their SIPs in response to changes in the NAAQS, availability of improved methods for attaining 

NAAQS, or in response to an EPA finding that the SIP is substantially inadequate.

The State’s response: The State responded that the New Mexico SIP is a compilation of 

regulations, plans, and submittals that act to improve and maintain air quality in accordance with 

national standards. The authority to develop or revise the SIP is based on the authority to adopt 

new regulations, revise existing regulations, and conduct business in a manner to meet the 

NAAQS. New Mexico state statute § 74-7-5 gives the board authority to perform these functions. 

§ 74-7-5 also provides the board the authority to adopt regulations to abate, control, and prohibit 

air pollution throughout New Mexico in accordance with the provisions of State Rules Act 

[Chapter 14, Article 4, NMSA 1978]. Nothing in New Mexico's statutory or regulatory authority 

prohibits the State from revising the SIP in the event of a revision to the NAAQS.

The AQCA gives the NMED the authority to “develop and present to the Environmental 

Improvement Board a plan for the control, regulation, prevention or abatement of air 
Page 17 of 29

pollution...,” and authorizes the EIB to adopt such a plan (see NMSA 1978, section 74-2-5.1(H) 

and NMSA 1978, section 74-2-5(B)(2)). The AQCA also authorizes the New Mexico EIB to 

“adopt, promulgate, publish, amend and repeal regulations consistent with the AQCA to attain 

and maintain the national ambient air quality standards and prevent and abate air pollution ...” 

and the EIA authorizes the NMED to enforce such rules, regulations and orders promulgated by 

the EIB (see NMSA 1978, section 74-2-5(B)(1) and NMSA 1978, section 74-1-6(F)). 

Furthermore, the AQCA requires the NMED to, “... advise, consult, contract with and cooperate 

with local authorities, other states, the federal government and other interested persons or groups 

in regard to matters of common interest in the field of air quality control...” (see NMSA 1978, 

section 74-2-5.2(B)). 

EPA analysis: Based upon review of the state's infrastructure SIP submission for the 2010 SO2

NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the 

submission or referenced in New Mexico’s SIP, EPA believes that the requirements of section 

110(a)(2)(H) are met.

9. Nonattainment area plans or plan revisions under Part D of the CAA: Section 

110(a)(2)(I) contains provisions related to the submission of nonattainment area plans or plan 

revisions as specified in Part D of the CAA.

The State's response: The State indicates that compliance under the SO2 NAAQS will be 

evaluated with submitted SIP revisions for any future nonattainment areas. These SIP revisions 

will comply with the applicable requirements of Part D. The currently approved nonattainment 

area SIP provisions listed in 40 CFR Part 52, Subpart GG satisfy the Part D requirements.

EPA analysis: As noted previously, EPA does not expect infrastructure SIP submissions to 

address subsection 110(a)(2)(I). Nonattainment area plans required under Part D are required to 

be submitted on a different schedule from the Section 110 infrastructure elements and will be 

reviewed and acted upon through a separate process governed by the requirements for 

nonattainment areas, as described in part D. Additionally, New Mexico presently does not 

contain any non-attainment areas for SO2.

10. Consultation, public notice, and PSD and visibility protection: Section 110(a)(2)(J) is 

divided into three components: consultation with government officials, public notification 

requirements, and provisions for PSD and visibility protection. With regards to consultation with 

government officials, this section requires states to provide a process for consultation with local 

governments and Federal Land Managers (FLMs) carrying out NAAQS implementation 

requirements pursuant to section 121 relating to consultation. Section 110(a)(2)(J) further 

requires states to notify the public if NAAQS are exceeded in an area and to enhance public 

awareness of measures that can be taken to prevent exceedances. Section 110(a)(2)(J) also 

requires States to meet applicable requirements of Part C related to Prevention of Significant 

Deterioration and visibility protection.

The State's response: The State indicates that all SIP revisions undergo public notice and 

hearing, which provides for opportunities to comment by the public, including local political 

subdivisions. New Mexico’s AQCA provides that, “no regulations or emission control 

requirement shall be adopted until after a public hearing by the environmental improvement 

board or the local board” and provides that, “at the hearing, the environmental improvement 

board or the local board shall allow all interested persons reasonable opportunity to submit data, 

views, or arguments orally or in writing and to examine witnesses testifying at the hearing” (see 
Page 18 of 29

NMSA 1978, 74-2-6(B) and (D)).Additional public notification concerning compliance with the 

NAAQS is accomplished by real-time publishing of air quality data from NMED’s monitoring 

network to the NMED website. Provisions regarding public notification of instances or areas in 

which any primary NAAQS was exceeded were approved into the New Mexico SIP on August 

24, 1983 (48 FR 38466).This air quality monitoring data is also submitted to EPA’s Air Quality 

System (AQS) in a timely manner, where it is also made public. The NMED website provides 

information on the air quality index (AQI) and on ways in which the public can participate in 

regulatory and planning efforts related to air quality.

With regards to the consultation requirements of the PSD permitting program, New 

Mexico has adopted 20.2.74 NMAC, Prevention of Significant Deterioration, following the 

requirements outlined in 40 CFR 52 under section 161 of the CAA for prevention of significant 

deterioration. These PSD permitting provisions were approved by EPA as part of the SIP.

With regards to visibility protection, 20.2.74 NMAC includes procedures for protection 

of visibility in Class I areas. In addition, New Mexico submitted its Regional Haze SIP to EPA in 

June 2011. This SIP revision is intended to provide further visibility protection and 

improvements to federal Class I areas. In addition, the AQCA provides that the NMED shall 

have the power and duty to “advise, consult, contract with and cooperate with local authorities, 

other states, the federal government and other interested persons or groups in regard to matters of 

common interest in the field of air quality control...” (see NMSA 1978, 74-2-5.2(B)). The 

AQCA also requires initiation of cooperative action between local authorities and the NMED, 

between one local authority and another, or among any combination of local authorities and the 

NMED for control of air pollution in areas having related air pollution problems that overlap the 

boundaries of political subdivisions; and entering into agreements and compacts with adjoining 

states and Indian tribes, where appropriate. NMED has a long history of successful cooperation 

with the local air quality authority in Albuquerque/Bernalillo County and tribal governments.

With regard to permitting actions, New Mexico’s PSD regulations at 20.2.74.400 NMAC, 

approved into the SIP on March 30, 1987 (52 FR 5964) and December 16, 1996 (61 FR 53642), 

mandate that the NMED shall provide for public participation and notification regarding 

permitting applications to any other state or local air pollution control agencies, local 

government officials of the city or county where the source will be located, and Federal Land 

Managers whose lands may be affected by emissions from the source or modification. New 

Mexico’s Transportation Conformity regulations at 20.2.99.116 and 20.2.99.124 NMAC, both 

approved into the SIP on April 23, 2010 (75 FR 21169), require that interagency consultation 

and opportunity for public involvement be provided before making transportation conformity 

determinations and before adopting applicable SIP revisions on transportation-related SIPs. 

EPA analysis: Based upon review of the state's infrastructure SIP submission for the 2010 SO2

NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the 

submission or referenced in New Mexico’s SIP, EPA believes that the requirements of section 

110(a)(2)(J) are met.

11. Air quality modeling and submission of data: Section 110(a)(2)(K) requires that SIPs 

provide for performing air quality modeling to predict effects on air quality resulting from

emissions of any NAAQS pollutant, and submission of such data to EPA upon request.

The State’s response: The State indicates that New Mexico has developed Air Dispersion 

Modeling Guidelines that follow EPA guidelines for air dispersion modeling; these guidelines 

also include some internal policy language. The Air Quality Bureau within NMED contains a 

modeling section that is staffed with four qualified modelers, two of which have earned 

accredited doctorate of philosophy degrees. NMED submits to EPA data related to modeling 
Page 19 of 29

upon request. The NMED has the power and duty, under the AQCA to “develop facts and make 

investigations and studies,” thereby providing for the functions of environmental air quality 

assessment (see NMSA 1978, 74-2-5). Past modeling and emissions reductions measures have 

been submitted by the State and approved into the SIP. For example, the air modeling and 

control measures submitted within the attainment demonstration for the San Juan County Early 

Action Compact Area, approved by EPA and adopted into the SIP on August 17, 2005 (70 FR 

48285). Additionally, New Mexico has the ability to perform modeling for the primary and 

secondary PM2.5 standards and other criteria pollutant NAAQS on a case-by-case permit basis 

consistent with their SIP-approved PSD rules and with EPA protocols on Air Quality Models at 

40 CFR Part 51, Appendix W. 

This section of the CAA also requires that a SIP provide for the submission of data 

related to such air quality modeling to the EPA upon request. The New Mexico AQCA 

authorizes and requires NMED to cooperate with the federal government and local authorities in 

regard to matters of common interest in the field of air quality control, thereby allowing the 

agency to make such submissions to the EPA (see NMSA 1978, 74-2-5.2(B)). 

EPA analysis: Based upon review of the state's infrastructure SIP submissions for the 2010 SO2

NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the 

submission or referenced in New Mexico’s SIP, EPA believes that New Mexico has the adequate 

infrastructure needed to address section 110(a)(2)(K) for the 2010 SO2 NAAQS.

12. Permitting fees: Section 110(a)(2)(L) requires SIPs to require each major stationary source 

to pay permitting fees to cover the cost of reviewing, approving, implementing and enforcing a 

permit.

The State's response: The State indicates that the fee requirements of 20.2.71 NMAC (Operating 

Permit Emission Fees) and 20.2.75 NMAC (Construction Permit Fees) were approved by EPA 

as meeting the CAA requirements and were incorporated into New Mexico’s SIP (11/25/97, 62 

FR 50514). The State also indicates that New Mexico’s Title V operating permit program 

codified in 20.2.70 NMAC was approved by EPA in 1997 (11/26/97, 61 FR 60032). 

The AQCA provides the EIB with the legal authority for establishing an emission fee 

schedule and a construction permit fee schedule to recover the reasonable costs of acting on 

permit applications, implementing, and enforcing permits. New Mexico’s fee schedule for 

construction permits is codified at 20.2.75 NMAC, Construction Permit Fees. These regulations 

implement a fee schedule for all preconstruction air permits issued by NMED and were approved 

by EPA into the SIP on September 16, 1991 (56 FR 32511) and November 25, 1997 (62 FR 

50514).

In addition to preconstruction fees, New Mexico also requires major sources subject to 

the federal Title V operating permit program to pay annual operating permit fees. This operating 

permit fee schedule is codified at 20.2.71 NMAC, Operating Permit Emission Fees. Title V 

operating permit programs and associated fees are not required to be in the states SIP, however, 

NM asked EPA to approve them so we have approved them and are included in New Mexico’s 

SIP (November 26, 1996 (61 FR 60032 see 40 CFR Part 70, Appendix A). EPA reviews the 

New Mexico Title V program, including Title V fee structure, separately from this proposed 

action. Because the Title V program and associated fees legally are not part of the SIP, the 

infrastructure SIP action we are proposing today does not preclude EPA from taking future 

action regarding New Mexico’s Title V permitting program and associated fees.

EPA analysis: .Based upon review of the state's infrastructure SIP submission for the 2010 SO2

NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the 
Page 20 of 29

submission or referenced in New Mexico’s SIP, EPA believes that the requirements of section 

110(a)(2)(L) are met.

13. Consultation/participation by affected local entities: Section 110(a)(2)(M) requires states 

to provide for consultation and participation in SIP development by local political subdivisions 

affected by the SIP.

The State’s response: In its submittal, the State responds to this infrastructure SIP requirement 

by stating that New Mexico Statute § 74-2-5.2 "State air pollution control agency; specific duties 

and powers of the department," requires advising; consulting; contracting with and cooperating 

with local authorities, other states, the federal government and other interested persons or groups 

in regard to matters of common interest in the field of air quality control; and initiation of 

cooperative action between a local authority and the department, between one local authority and 

another or among any combination of local authorities and the department for control of air 

pollution in areas having related air pollution problems that overlap the boundaries of political 

subdivisions; and entering into agreements and compacts with adjoining states and Indian tribes, 

where appropriate. The State's public participation requirements and procedures fulfill the 

requirements for consultation with local political subdivisions affected by the SIP.

EPA analysis: Based upon review of the state's infrastructure SIP submission for the 2010 SO2

NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the 

submission or referenced in New Mexico’s SIP, EPA believes that the requirements of section 

110(a)(2)(M) are met.

IV. EPA’s Recommendation

We reviewed New Mexico’s submittal, SIP, and recent air quality data for Sulfur Dioxide

for compliance with the requirements of sections 110(a)(1) and (2) of the Act for the 2010 SO2

NAAQS. Based on these evaluations, we recommend that EPA propose to approve the submittal 

provided by the State of New Mexico to demonstrate that the New Mexico SIP meets the 

applicable requirements of sections 110(a)(1) and (2) of the Act with respect to the sulfur dioxide 

standards. The submittal adequately addresses the infrastructure elements specified in the CAA 

section 110(a)(2) that are necessary to implement, maintain, and enforce the 2010 SO2 NAAQS. 

We recommend approval of the New Mexico infrastructure SIP for the 2010 Sulfur dioxide

NAAQS for the following elements:

Emission limits and other control measures: Section 110(a)(2)(A)

Ambient air quality monitoring/data system: Section 110(a)(2)(B) 

Program for enforcement of control measures: Section 110(a)(2)(C)

Interstate transport: Section 110(a)(2)(D)(ii)

Adequate resources: Section 110(a)(2)(E)

Stationary source monitoring system: Section 110(a)(2)(F)

Emergency power: Section 110(a)(2)(G)

Future SIP revisions: Section 110(a)(2)(H)

Consultation with government officials: Section 110(a)(2)(J)

Public notification: Section 110(a)(2)(J)

PSD and visibility protection: Section 110(a)(2)(J)

Air quality and modeling/data: Section 110(a)(2)(K)

Permitting fees: Section 110(a)(2)(L)

Consultation/participation by affected local entities: Section 110(a)(2)(M)
Page 21 of 29

V. References

1. Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act 

Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013
Page 22 of 29

Appendix A

EPA’s Approach to the Review of Infrastructure SIP Submissions

EPA is acting upon the SIP submissions from New Mexico that address the infrastructure 

requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 O3 and 2010 NO2 NAAQS.

The requirement for states to make a SIP submissions of these types arises out of CAA section 

110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or 

such shorter period as the Administrator may prescribe) after the promulgation of a national 

primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to 

provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute 

directly imposes on states the duty to make these SIP submissions, and the requirement to make 

the submissions is not conditioned upon EPA’s taking any action other than promulgating a new 

or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” 

submission must address. 

EPA has historically referred to these SIP submissions made for the purpose of satisfying the 

requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. 

Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to 

distinguish this particular type of SIP submission from submissions that are intended to satisfy 

other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” 

submissions to address the nonattainment planning requirements of part D of title I of the CAA, 

“regional haze SIP” submissions required by EPA rule to address the visibility protection 

requirements of CAA section 169A, and nonattainment new source review permit program 

submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP 

submissions, and section 110(a)(2) provides more details concerning the required contents of 

these submissions. The list of required elements provided in section 110(a)(2) contains a wide 

variety of disparate provisions, some of which pertain to required legal authority, some of which 

pertain to required substantive program provisions, and some of which pertain to requirements 

for both authority and substantive program provisions.11 EPA therefore believes that while the 

timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions 

are ambiguous. In particular, EPA believes that the list of required elements for infrastructure 

SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required 

for inclusion in an infrastructure SIP submission. 

The following examples of ambiguities illustrate the need for EPA to interpret some section 

110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a 

given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that 

“each” SIP submission must meet the list of requirements therein, while EPA has long noted that 

this literal reading of the statute is internally inconsistent and would create a conflict with the 

nonattainment provisions in part D of title I of the Act, which specifically address nonattainment 

 

11For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal 

authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIPapproved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) 

provides that states must have legal authority to address emergencies as well as contingency plans that are triggered 

in the event of such emergencies.
Page 23 of 29

SIP requirements.12 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D 

addresses when attainment plan SIP submissions to address nonattainment area requirements are 

due. For example, section 172(b) requires EPA to establish a schedule for submission of such 

plans for certain pollutants when the Administrator promulgates the designation of an area as 

nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for 

such designations to be promulgated.13 This ambiguity illustrates that rather than apply all the 

stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which 

provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission. 

Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to 

infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements 

in a single SIP submission, and whether EPA must act upon such SIP submission in a single 

action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, 

EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing 

infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP 

submissions to meet the infrastructure SIP requirements, EPA can elect to act on such 

submissions either individually or in a larger combined action.14 Similarly, EPA interprets the 

CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure 

SIP submission for a given NAAQS without concurrent action on the entire submission. For 

example, EPA has sometimes elected to act at different times on various elements and subelements of the same infrastructure SIP submission.15

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure 

SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of 

section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or 

revised NAAQS. The states’ attendant infrastructure SIP submissions for each NAAQS therefore 

could be different. For example, the monitoring requirements that a state might need to meet in 

its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for 

different pollutants, for example because the content and scope of a state’s infrastructure SIP 

 

12See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); 

Revisions to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule,” 70 FR 25162, at 25163 – 65 (May 12, 

2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)).

13 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set 

specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various

pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the 

ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or 

revised NAAQS.

14See, e.g., “Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source 

Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment 

New Source Review (NNSR) Permitting,” 78 FR 4339 (January 22, 2013) (EPA’s final action approving the 

structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of 

EPA’s 2008 PM2.5 NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; 

Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,” (78 FR 4337) (January 22, 2013) 

(EPA’s final action on the infrastructure SIP for the 2006 PM2.5 NAAQS).

15 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and 

Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) 

and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took 

final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), 

EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of 

Tennessee’s December 14, 2007 submittal.
Page 24 of 29

submission to meet this element might be very different for an entirely new NAAQS than for a 

minor revision to an existing NAAQS.16

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other 

types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP 

submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) 

that logically apply to these other types of SIP submissions. For example, section 172(c)(7) 

requires that attainment plan SIP submissions required by part D have to meet the “applicable 

requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must 

meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control 

measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it 

is clear that attainment plan SIP submissions required by part D would not need to meet the 

portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of 

the CAA, because PSD does not apply to a pollutant for which an area is designated 

nonattainment and thus subject to part D planning requirements. As this example illustrates, each 

type of SIP submission may implicate some elements of section 110(a)(2) but not others. 

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and 

section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of 

section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In 

other words, EPA assumes that Congress could not have intended that each and every SIP 

submission, regardless of the NAAQS in question or the history of SIP development for the 

relevant pollutant, would meet each of the requirements, or meet each of them in the same way. 

Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions 

against the list of elements in section 110(a)(2), but only to the extent each element applies for 

that particular NAAQS.

Historically, EPA has elected to use guidance documents to make recommendations to states for 

infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and 

in some cases conveying interpretations that have already been developed and applied to 

individual SIP submissions for particular elements.17 EPA most recently issued guidance for 

infrastructure SIPs on September 13, 2013 (2013 Guidance).18 EPA developed this document to 

provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. 

Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to 

meet basic structural SIP requirements within three years of promulgation of a new or revised 

NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) 

that are relevant in the context of infrastructure SIP submissions.19 The guidance also discusses 

 

16For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to 

measure ambient levels of that new indicator species for the new NAAQS.

17 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for 

infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP 

submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. 

EPA elects to issue such guidance in order to assist states, as appropriate. 

18 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) 

and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.

19 EPA’s September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP 

submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court 

agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had interpreted 
Page 25 of 29

the substantively important issues that are germane to certain subsections of section 110(a)(2). 

Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP 

submissions need to address certain issues and need not address others. Accordingly, EPA 

reviews each infrastructure SIP submission for compliance with the applicable statutory 

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

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for 

infrastructure SIP submissions. Under this element, a state must meet the substantive 

requirements of section 128, which pertain to state boards that approve permits or enforcement 

orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure 

SIP submissions to ensure that the state’s SIP appropriately addresses the requirements of section 

110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA’s interpretation that there 

may be a variety of ways by which states can appropriately address these substantive statutory 

requirements, depending on the structure of an individual state’s permitting or enforcement 

program (e.g., whether permits and enforcement orders are approved by a multi-member board 

or by a head of an executive agency). However they are addressed by the state, the substantive 

requirements of section 128 are necessarily included in EPA’s evaluation of infrastructure SIP 

submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the 

provisions of section 128. 

As another example, EPA’s review of infrastructure SIP submissions with respect to the PSD 

program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural 

PSD program requirements contained in part C and EPA’s PSD regulations. Structural PSD 

program requirements include provisions necessary for the PSD program to address all regulated 

sources and NSR pollutants, including GHGs. By contrast, structural PSD program requirements 

do not include provisions that are not required under EPA’s regulations at 40 CFR 51.166 but are 

merely available as an option for the state, such as the option to provide grandfathering of 

complete permit applications with respect to the 2012 PM2.5 NAAQS. Accordingly, the latter 

optional provisions are types of provisions EPA considers irrelevant in the context of an 

infrastructure SIP action.

For other section 110(a)(2) elements, however, EPA’s review of a state’s infrastructure SIP 

submission focuses on assuring that the state’s SIP meets basic structural requirements. For 

example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to 

regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor 

new source review program and whether the program addresses the pollutants relevant to that 

NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not 

think it is necessary to conduct a review of each and every provision of a state’s existing minor 

source program (i.e., already in the existing SIP) for compliance with the requirements of the 

CAA and EPA’s regulations that pertain to such programs. 

With respect to certain other issues, EPA does not believe that an action on a state’s 

infrastructure SIP submission is necessarily the appropriate type of action in which to address 

possible deficiencies in a state’s existing SIP. These issues include: (i) existing provisions related 

 

the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected 

not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is 

neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no 

impact on a state’s CAA obligations.
Page 26 of 29

to excess emissions from sources during periods of startup, shutdown, or malfunction that may 

be contrary to the CAA and EPA’s policies addressing such excess emissions (“SSM”); (ii) 

existing provisions related to “director’s variance” or “director’s discretion” that may be contrary 

to the CAA because they purport to allow revisions to SIP-approved emissions limits while 

limiting public process or not requiring further approval by EPA; and (iii) existing provisions for 

PSD programs that may be inconsistent with current requirements of EPA’s “Final NSR 

Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 

2007) (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission 

without scrutinizing the totality of the existing SIP for such potentially deficient provisions and 

may approve the submission even if it is aware of such existing provisions.20 It is important to 

note that EPA’s approval of a state’s infrastructure SIP submission should not be construed as 

explicit or implicit re-approval of any existing potentially deficient provisions that relate to the 

three specific issues just described. 

EPA’s approach to review of infrastructure SIP submissions is to identify the CAA requirements 

that are logically applicable to that submission. EPA believes that this approach to the review of 

a particular infrastructure SIP submission is appropriate, because it would not be reasonable to 

read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as 

requiring review of each and every provision of a state’s existing SIP against all requirements in 

the CAA and EPA regulations merely for purposes of assuring that the state in question has the 

basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have 

grown by accretion over the decades as statutory and regulatory requirements under the CAA 

have evolved, they may include some outmoded provisions and historical artifacts. These 

provisions, while not fully up to date, nevertheless may not pose a significant problem for the 

purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when 

EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better 

approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the 

CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance gives simpler recommendations with respect to carbon 

monoxide than other NAAQS pollutants to meet the visibility requirements of section 

110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an 

infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need 

only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based 

on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other 

avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These 

other statutory tools allow EPA to take appropriately tailored action, depending upon the nature 

and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” 

whenever the Agency determines that a state’s SIP is substantially inadequate to attain or 

 

20 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that 

contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would 

need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of 

the action on the infrastructure SIP. 
Page 27 of 29

maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.21

Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP 

submissions.22 Significantly, EPA’s determination that an action on a state’s infrastructure SIP 

submission is not the appropriate time and place to address all potential existing SIP deficiencies 

does not preclude EPA’s subsequent reliance on provisions in section 110(a)(2) as part of the 

basis for action to correct those deficiencies at a later time. For example, although it may not be 

appropriate to require a state to eliminate all existing inappropriate director’s discretion 

provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 

110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing 

such deficiency in a subsequent action.23

 

21For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of 

excess emissions during SSM events. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah 

State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011).

22 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See 

“Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas 

Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). EPA has 

previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 

1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 

16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada 

SIPs).

23See, e.g., EPA’s disapproval of a SIP submission from Colorado on the grounds that it would have included a 

director’s discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 

42342 at 42344 (July 21, 2010) (proposed disapproval of director’s discretion provisions); 76 FR 4540 (Jan. 26, 

2011) (final disapproval of such provisions).
Page 28 of 29

Appendix B

EPA’s Evaluation of the June 23, 2014 United States Supreme Court Decision on 

Greenhouse Gas Emissions on New Mexico’s infrastructure SIP reviews

With respect to the infrastructure elements contained in Section 110(a)(2)(C) and (J), EPA 

interprets the Clean Air Act to require each state to make an infrastructure SIP submission for a 

new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting 

program meeting the current requirements for all regulated NSR pollutants. The requirements of 

Section 110(a)(2)(D)(i)(II) may also be satisfied by demonstrating the air agency has a complete 

PSD permitting program correctly addressing all regulated NSR pollutants. New Mexico has 

shown that it currently has a PSD program in place that covers all regulated NSR pollutants, 

including greenhouse gases (GHGs). 

On June 23, 2014, the United States Supreme Court issued a decision addressing the application 

of PSD permitting requirements to GHG emissions. (See Utility Air Regulatory Group v. 

Environmental Protection Agency, 134 S.Ct. 2427) The Supreme Court said that the EPA may 

not treat GHGs as an air pollutant for purposes of determining whether a source is a major source 

required to obtain a PSD permit. The Court also said that the EPA could continue to require that 

PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain 

limitations on GHG emissions based on the application of Best Available Control Technology 

(BACT). In order to act consistently with its understanding of the Court’s decision pending 

further judicial action to effectuate the decision, the EPA is not continuing to apply EPA 

regulations that would require that SIPs include permitting requirements that the Supreme Court 

found impermissible. Specifically, EPA is not applying the requirement that a state’s SIPapproved PSD program require that sources obtain PSD permits when GHGs are the only 

pollutant (i) that the source emits or has the potential to emit above the major source thresholds, 

or (ii) for which there is a significant emissions increase and a significant net emissions increase 

from a modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to revise federal 

PSD rules in light of the Supreme Court opinion. In addition, EPA anticipates that many states 

will revise their existing SIP-approved PSD programs in light of the Supreme Court’s decision. 

The timing and content of subsequent EPA actions with respect to the EPA regulations and state 

PSD program approvals are expected to be informed by additional legal process before the 

United States Court of Appeals for the District of Columbia Circuit. At this juncture, EPA is not 

expecting states to have revised their PSD programs for purposes of infrastructure SIP 

submissions and is only evaluating such submissions to assure that the state’s program correctly 

addresses GHGs consistent with the Supreme Court’s decision.

EPA has previously approved New Mexico SIP revisions submitted to align the state’s PSD 

program rules for GHGs with federal requirements (76 FR 43149). At present, EPA has 

determined the New Mexico SIP is sufficient to satisfy the infrastructure elements of Sections 

110(a)(2)(C), (D)(i)(II), and (J) with respect to GHGs because the PSD permitting program 

previously approved by EPA into the SIP continues to require that PSD permits (otherwise 

required based on emissions of pollutants other than GHGs) contain limitations on GHG 

emissions based on the application of BACT. Although the approved New Mexico PSD 

permitting program may currently contain provisions that are no longer necessary in light of the 

Supreme Court decision, this does not render the infrastructure SIP submission inadequate to 

satisfy the infrastructure elements of Sections 110(a)(2)(C), (D)(i)(II), and (J). The SIP contains 

the necessary PSD requirements at this time, and the application of those requirements is not 
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impeded by the presence of other previously-approved provisions regarding the permitting of 

sources of GHGs that EPA does not consider necessary at this time in light of the Supreme Court 

decision. Accordingly, the Supreme Court decision does not affect EPA’s proposed approval of 

New Mexico’s infrastructure SIP as to the requirements of the infrastructure elements of 

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