New Mexico State Implementation Plan Elements Required Under Section 110(a)(2) for the
2010 Sulfur Dioxide (S O 2 ) National Ambient Air Quality Standards (NAAQS)

Docket ID EPA

- R06

- O AR

- 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 N ational Ambient Air Quality Standards?

B. What is a SIP?

C. Additional Information

I II. 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 i s 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 20 10 national ambient air quality standards (NAAQS or standards) for sulfur dioxide (S O 2 ) 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 requiremen ts 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.Page 2 of 29

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

. 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 satisf ies the section 110(a)(2) requirements

, is pr ovided 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 II I 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 ana lysis 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. Ap pendices 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
shorte r period as EPA may prescribe. Section 110(a)(2) lists the specific infrastructure elements
that mu st 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 S O 2 N AAQS 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 S O 2 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 S O 2 NAAQSs. To assist states in meeting this statutory requirement, EPA issued guidance on September 13, 2013, addressing the infra structure SIP elements required under sections 110(a )(1) and (2) for most the NAAQS 2

. 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 satisf ies all the requirements of section 110(a)(1) and (2) for the 2010 S O 2 NAAQS. The
submittal include s 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 S O 2 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 Cle an Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.Page 3 of 29

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

On April 30 , 197 1, EPA promulgated primary (health

- based) SO 2 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 Criter ia 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 sec ond 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
SO 2 concentrations. As a result of public comments on the 1988 pro posal 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 minu te SO 2 exposures in asthmatics (EPQ, 1994a; EPA 1994b). As in the 1988 proposal, EPA proposed to retain the existin g 4

- hour and
annual standards. EPA also solicited comment on three regulatory alternatives to further reduce the health risk posed by exposur e to high 5

- minute peaks of SO 2 if additional protectio n were judged to be necessary. The three alternatives were: (1) Revising the existing primary SO 2 NAAQS by adding a new 5

- minute standard of 0.6 ppm (600 ppb) SO 2 ; (2) establishing a new regulatory pro gram under section 303 of the Act to supplement protection provided by the existing NAAQS, with a trigger level of 0.6 ppm (600 ppb) SO 2 , one expected exceedance; and (3) augmenting implementation of existing standards by focusing on those sources or sourc e types likely to produce high 5

- minute peak concentrations of SO 2

. On May 22, 1996, EPA announced its final decision not to revise the NAAQS for SO
x (61 FR 25566). EPA found that asthmatics

- a susceptible population group

- could be exposed to
short

- term S O 2 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 exp erience, 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 revis e the existing standards or add a standard to specifical ly 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 SO 2 and later initiated a rulema king 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 th at EPA had failed to adequately explain its determination
that no revision to the SO 2 NAAQS was appropriate and remanded the determination back t o EPA for further explanation. S pecifically, the court held that EPA had failed to adequately explain the basis for its conclusion that short

- term SO 2 exposures to asthmatics do not constitute a public health problem, noting that the agency had failed to explain the link between its findingPage 4 of 29

that repeated short

- term exposures were significant, and that there would b e tens to hundreds of thousands of such exposures annually to susceptible subpopulation. The court also rejected the explanation that short

- term SO 2 bursts were “localized, infrequent, and site

- specific” as a rational basis for the conclusion that no publi c 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 pollutio n is local and site

- specific...” Id. The court accordingly remanded the case to EPA to adequately explain its determination or otherwise take action i n accordance with the opinion. In response, EPA has collected and analyzed additional air quality data focuse d on 5

- minute
concentrations of SO 2

. 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 SO 2 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, 200 7. As noted in that plan, SO
x includes multiple gaseous (e.g., SO 3 ) and partic ulate (e.g., sulfate) species. Because the health effects associated with particulate species of SO
x have been considered within the context of the health effects of ambient particles in the Agency’s review of the NAAQS for particulate matter (P M), the current review of the primary SO 2 NAAQS is focused on the gaseous species of SO
x and does not consider health effects directly associated with particulate species. The first draft of the Integrated Science Assessment for Oxides of Sulfur

- Health C riteria (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 SO 2 Primary National Ambient Air Quality Standard (Risk and Exposure Assessment (REA)). These documents were reviewed by CASAC at a p ublic mee ting 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 dev elopin g 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 th e second draft REA, as they related to the adequacy of the
current SO 2 NAAQS and potential alternative primary SO 2 standards. This document was reviewed by CASAC at a public meetin g held on April 16

- 17, 2009. In preparing the final REA report, which includ ed the final staff policy assessment, EPA considered comments received from CASAC and the public at a nd subsequent to that meeting. The final REA containing the final staff policy assessment was completed in August 2009 (EPA 2009a; henceforth referred to

a s REA). On December 8, 2009 EPA published its proposed revisions to the primary SO 2 NAAQS. 74 FR 64810 presented a number of conclusions, findings and determinations proposed b y the
Administrator. EPA invited general, specific and/or technical comments on all issues involved with this proposal, including all such proposed judgments, conclusion s, 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 s upport 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 SO 2 NAAQS.Page 5 of 29

The scheduled for completion of the review was governed by a judicia l 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 amend ed in December 2008, provides that the Administrator will sign, for publication, a final rulemaking concerning the review of the primary
SO 2 NAAQS no later than June 2, 2010. The Primary National Ambient Air Quality Standard for Sulfur Dioxide was publishe d on June 22, 2010, 75 FR 35520. In 75 FR 35520, EPA published revisions to the primary SO 2 NAAQS

. Specifically, EPA replaced the 24

- hour and annual standards with a new short

- term standard based on the 3 year average of the 99 th percentile of the yearly d istribution of 1

- hour daily maximum SO 2 concentration. EPA also established a requirement for an SO 2 monitoring n etwork. These new provisions require monitors in areas where there is an increased coincidence of population and
SO2 emissions. EPA also made c onforming changes to the Air Quality Index (AQI). The 2010
revision of the SO 2 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 SO 2 standard has remained unchanged since 1973 3

. The 2010 SO 2 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

seco ndary 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 environ ment. EPA has set NAAQS for six common air pollutants, refe rred to as criteria pollutants. These pollutants are: carbon monoxide, lead, nitro gen dioxide, ozone, particula te matter, and sulfur dioxide. These standards present state and local governments with the minimum air quality levels they mus t 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 t hat the state meets the NAAQS. The SIP is required by section 110 an d other provisions
of the Act. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such a s 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 qu ality primarily by addressing air pollution at its point of origin.

3 38 FR 25678 September 14, 1973Page 6 of 29

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 o n 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 r egulations that pertain to such programs (“minor source NSR”); and, (iv) existing provisions for PSD progr ams 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 indicate s 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 PM 2.5 National Ambient Air Quality Standards” in the section entitled, “What is the scope of this final rulemaking?” (see 76 FR 41075 at 41076

- 41079).
Th e CAA Secti on 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 al l regulated air contaminants for which there is a NAAQS (see 20.2.72.200 NMAC). New Mexico’s minor NSR permitting

r equirements are found at 20.2.72 NMAC

- Construction Permits and were approved into the SIP on May 14, 1973 (38 FR 12702), with revisions ap proved 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 ass ociated with implementing NOx as a precursor (75 FR 72688) as necessary to implement the 1997 ozone standard. In addition, EPA approved r evisions to New Mexico’s PSD program in to 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 FR152 96). 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

- hou r ozone and PM2.5, respectively (78 FR 4339). With these approvals, New Mexico has a fully approved PSD program addressing all regulated NSR pollutants.Page 7 of 29

II I . 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 EPA

approved 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 purp oses 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 Envi ronmental 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)). T he 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; r e

- 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

e nforcing 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 fort h elements that a SIP must contain in order to be fully approved. 4 In 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 o f New Mexico’s infrastructure SIP submittal for the 20 10 S O 2 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 meas ures: 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

.

Th e State’s response : In its submittal, the State of New Mexico indicate s 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

- Envir onment Protection, Chapter 2

- Air Quali ty, listed in 40 CFR Part 52 Subpart GG, and source

- specific provisions
codified at 40 CFR Part 52 Subpart GG

. The S tate 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 b een submitted to and approved by EPA. The S tate also i ndicate s that New Mexico has an EPA a pproved 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 sou rce’s permit. Current data sho ws that New Mexico meets the 1

- hour 4 00 ppb S O 2 standard 5

. 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 eleme nts 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 S O 2 NAAQS, and limit or reduce emissions of S O 2

. These rules include emission limits, control measures, as well as permits and fees. Table 1 below provides a list of New Mexico regulations and em issions 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 11 0(a)(2)(A) :

Relevant Section of New Mexico ’s SIP EPA Approval/ Federal Register 7

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

2 0 .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

2 0 .2.11 NMAC

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

2 0 .2.12 NMAC

- Cement Kilns September 26, 1997 at 62 FR 50514

2 0 .2.13 NMAC

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

2 0 .2.14 NMAC

- Particulate Emissions from Coal Burning Equipment September 26, 1997 at 62 FR 50514

2 0 .2.15 NMAC

- Pumice, Mica and Perlite Process Equipment September 26, 1997 at 62 FR 50514

2 0 .2.16 NMAC

- Nonferrous Smelters (New and Existing)

- Particulate Matter September 26, 1997 at 62 FR 50514

2 0 .2.17 NMAC

- Nonferrous Smelters (Existing)

- Particulate Matter September 26, 1997 at 62 FR 50514

2 0 .2.18 NMAC

- Oil Burning Equipment

Particulate 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.Page 9 of 29

Relevant Section of New Mexico ’s SIP EPA Approval/ Federal Register 7

2 0 .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 Plants

Particulate 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 Equipment

Sulfur Dioxide September 26, 1997 at 62 FR 50514

20 .2.32 NMAC

- Coal Burning Equipment

Nitrogen Dioxide September 26, 1997 at 62 FR 50514

20 .2.33 NMAC

- Gas Burning Equipment

Nitrogen Dioxide September 26, 1997 at 62 FR 50514

20 .2.34 NMAC

- Oil Burning Equipment

Nitrogen Dioxide September 26, 1997 at 62 FR 50514

20 .2.40 NMAC

- Sulfuric Production Units

Sulfur Dioxide, Acid Mist and Visible
Emissions September 26, 1997 at 62 FR 50514

20 .2.41 NMAC

- Nonferrous Smelters

- Sulfu r 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 stat e 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 t hat have met the minimum siting requir ements ofPage 10 of 29

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 P art 58. New Mexico SIP satisfies this particular element of s ection 1 10(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 ai r monitoring data, quality

assures 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 n etwork undergoes recurrent annual review by EPA, as required by 40 CFR 58.10. O n September 12, 2014 , NMED submitted its 201 4 Annual Air Monitoring Network Plan (AAMNP) that included ambient monitoring for the 2010
SO 2 NAAQS, and EPA approved the 201 4 AAMNP on April 14 , 201 5

. 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 SO 2 , as required by 40 CFR 58.10(d).
The most recent of these 5

- ye ar monitoring network assessments was conducted by NMED and submitted in June 2010, and was subsequently approved by EPA. 9 NMED operated three SO 2 monitoring stations at the end of 2013. The Air Quality Bureau requested and received permission to decommiss ion one SO 2 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 SO 2 monitor at Hurley as part of NMED’s mai ntenance plan. This request was approved by EPA and was scheduled to take effect on September 16,
2014. A s indicated in these documents, the 20 10 S O 2 NAAQS, EPA re gulations require that
ambient S O 2 monitors are based on population per Core

- based Statistic al Area (CBSA) and
amount of SO 2 emissions within that CBSA , that is, the Population Weighed Emissions Index (PWEI) and based on individual state contribution to national SO 2 inventory in the 2005 National Emissions Inventory (NEI). Based on the PWEI crite ria, NMED would not n eed to deploy any
new monitors. However, NMED is considering adding an additional SO 2 monitor at the Hobbs
site due to the SO 2 standard in order to determine compliance in the Permian Basin as well as the Bureau receiving five new poin t source discharge permitting appl ications 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 constru ction 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
unclassifia ble for the NAAQS in question). 10

The State's response : In its submittal, the State indicate s 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 attainm ent plans and permitting programs that regulate construction
and mod ification 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).
Th e 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 19 78, 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 pro gram. 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 remediati on 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 loc al 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 t o 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 SO 2 NAAQS, but for all other regulated NSR pollutants as well. PSD p rograms 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 progra m 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

N ew Mexico p rogram 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 ar e necessary for implementation of the PM 2.5 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 4 8700). 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 Se ptember 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 SO 2 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 pr ogram 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 pro grams 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 requireme nts 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 pro gram 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 ab atement : 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 othe r type of emissions activity in one state from contributing signi ficantly 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 e nsuring 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 infrast ructure SIP
submittal. The CAA Section 110(a)(2)(D)(i) includes four requirements referred to as prongs 1Page 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 q uality (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 necessa ry 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 previ ously, 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) wit h 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 requireme nts 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 o f 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 co mposition 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 indicate s 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

T he 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 imp lementation 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 asse rts 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 20 10 SO 2 NAAQS. The State does not anticipate the need for additional

resou rces 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 a ppear 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 t o 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 jurisdict ional 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 SO 2 NAAQS, and relevant statutory and regulatory authorities and provisions r eferenced in the submission or referenced in New Mexico’s SIP, EPA believes that the req uirements 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 Admin istrator, (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 amount s 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 pub lic inspection.

The State's response : In its submittal for the 2010 S O 2 NAAQS, the State of New Mexico
indicate s 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 indicate s that requirements in 20.2.7.73 NMAC ( Notice of Intent and Emission Inventory Requirements ) provide for the reporting of emissions inventories in a formatPage 15 of 29

establ ished by the NMED on a sc hedul e set forth in the regulation. New Mexico also assert s 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 ( Sourc e 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 2 0.2.72 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 SO 2 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) require s 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 submitt al for the 2010 S O 2 NAAQS, the State of New Mexico
indicate s that existing statutes provide adequate authority to constrain any sources of S O 2 emissions, as necessary, should an emergency situation arise. Under NMSA Section 74

- 2

- 10, the Secretary of NMED i s 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 a dopted an Air Pollution Episode Contingency Plan (5 5 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 ep isode 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 c lassified separately with respect to each of the following pollutants: Sulfur di oxide, 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 1 00 micrograms per cubic meter (denoted μg/m 3 ) or 0.0 4 ppm for an
annual arithmetic mean or 455 μg/m 3 (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/m 3 (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 S O 2

.Page 16 of 29 Table 6: Classificati on 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/m 3 (. 0 4 ppm) annual arithmetic mean; 455 μg/m 3 (0.17 ppm) 24

- hour
maximum. Ambient concentrations

> 2.620 μg/m 3 (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 S O 2 NAAQS i s 1

. 0 parts per million (ppm ) 24

- hour average, as indicated in 40 CFR 51.151. EPA believes that the existing NO 2 - related provisions of 40 CFR Subpart H are appropriate. Therefore, EPA expects that for purposes of the 2010 SO 2 NAAQS, states need only to confirm that they have existing emergency episode plan provisions consistent with EPA’s existing regulatory require ments

. 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 chang e to a higher priority, but suggests that emergency episode plans
for the S O 2 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 S O 2 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 Sta te 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

ne w regulations, revise existing regulations, and conduct business in a ma nn er 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 r egulations to a bate, 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 airPage 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 N MSA 1978,
section 74

- 2

- 5.2(B)).

EPA analysis : Based upon review of the state's infrastructure SIP submission for the 2010 SO 2 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 und er 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 S O 2 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 sche dule 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

- attai nment areas for SO 2

.

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 visibili ty 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 sec tion 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 S tates to meet applicable requirements of Part C related to P revention of S ignificant

D eterioration 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 loc al 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 t he hearing” (seePage 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 n otification 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 PS D 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 w ere 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 i s 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 i nto 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 permittin g 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 applic ations 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

Me xico’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 transportat ion 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 SO 2 NAAQS, and relevant statutory and regulatory autho rities and provisions referenced in the submission or referenced in New Mexico’s SIP, EPA believes that the requi rements of section 110(a)(2)(J) are met.

1 1

. 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 indicate s that New Mexico has developed Air Dispersion Modeling Guidelines that follow EPA guideli nes for air dispersion modeling; these guidelines also include some internal policy language. The Air Quality Bureau within NMED contains a modeling section t hat is staffed with four qualified modelers, two of which have earned accredited doctorate of philosophy degrees. NMED submits to EPA data related to modelingPage 19 of 29

upon request. The NMED has the power and duty, under the AQCA to “develop facts and make investig ations 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 model ing 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 modelin g 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 matte rs 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 SO 2 NAA QS, 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 SO 2 NAAQS.

1 2

. 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 indicate s 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 pe rmit 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 sub ject 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 SO 2 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in thePage 20 of 29

submission or refer enced in New Mexico’s SIP, EPA believes that the requirements of section 110(a)(2)( L ) are met.

1 3

. Consultation/participation by affected local entities : Section 110(a)(2)(M) requires states to provide for consultation and participation in SIP developme nt 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 S tatute § 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 q uality 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

re quirements 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 SO 2 NAAQS, and relevant statutory and regulatory authorities and provisions refer enced in the submission or referenced in New Mexico’s SIP, EPA believes that the requirements of section 110(a)(2)( M) are met.

I V . EPA’s Recommendation

We reviewed New Mexico ’s submittal

, SIP , and recent air quality data for Sulfur Dioxide for compliance with the requirements of section s 110(a) (1) and (2) of the Act for the 2010 S O 2 NAAQS

. Based on these evaluation s , we recommend that EPA propose to approve the submittal provided by the S tate of New Mexico to demonstrate that the New Mexico SIP meets the applicable requirements of s ection s 110(a)(1) and (2) of the Act with respect to the sulfur dioxide
standard s . The submittal adequately address es the infrastructure elements specified in the CAA section 110(a)(2) that are necessary to implem ent, maintain, and enforce the 2010 S O 2 NAAQS.

We r ecommend 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) (i i ) 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, 2013Page 22 of 29 Appendix A

EPA’s Approach to the Review of Infrastructure SIP Submissions

EPA is acting upon the SIP submission s from New Mexico that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 O 3 and 2010 NO 2 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 requireme nts 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 t o 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 add ress 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 pe rtain 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 gi ven 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 wo uld create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment

11 For example : S ection 110(a)(2)(E) (i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP

approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergenc ies

.Page 23 of 29

SIP requirements. 12 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan S IP 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

nonatta inment, 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, E PA 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 C AA 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

submis sions 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 en tire submission. For example, EPA has sometimes elected to act at different times on various elements and sub

elements of the same infrastructure SIP submission. 15

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastruc ture 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 submis sions 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 exam ple because the content and scope of a state’s infrastructure SIP

12 See, e.g., “R ule 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 251 63

– 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 p art D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for va rious pollutants. Note , e.g., that sec tion 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.

14 See, 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 PM 2.5 NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico;
Infrastructure and Interstate Transport Requirements for the 2006 PM 2.5 NAAQS

, ” (78 FR 4337) (January 22, 2013) (EPA’s final action on the infrastructure SIP for the 2006 PM 2.5 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, 2 012 (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 type s 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 requirem ents 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 nee d 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 requirement s. 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 su bmissions 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 c ases 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

infrastruct

ure 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 su bmissions. 19 The guidance also discusses

16 For example, implementation of the 1997 PM 2.5 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 regula tions 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 fr om 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

agr eed to review the D.C. Circuit decision in EME Homer City , 696 F.3d7 (D.C. Cir. 2012) which had interpretedPage 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 el ement 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 variet y 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 req uires 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 progr am 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 req uirements 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 PM 2.5 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 f

ocuses 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 ever y 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 gui dance 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 th e 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 pot entially 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

- approva l 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. EP A 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. Becaus e 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 attenti on 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

m onoxide 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 monoxid e 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 de ficiency. 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 potent ial 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 t o 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

su ch deficiency in a subsequent action. 23

21 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of
excess emissions d uring 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 t o 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).

23 See, 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 d isapproval 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 co mplete 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 addressin g 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 addressin g the application of PSD permitting requirements to GHG emissions. (See Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427) The Supreme Court said that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain

limitations on GHG emissions based on the application of Best Available Control Technology (BACT). In order to act consistently with its understanding of the Court’s decision pending further judicial action to effectuate the decision, the EPA is not continuing to apply EPA regulations that would require that SIPs include permitting requirements that the Supreme Court found impermissible. Specifically, EPA is not applying the requirement that a state’s SIP

approved PSD program require that sources obtain PSD permits when GHGs are the only

po llutant (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 a nticipates 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 sub sequent 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

exp ecting 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 previo usly 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

11 0(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 limitation s 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 s ubmission 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 notPage 29 of 29

impeded by the presence of other prev iously

- 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).