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[Federal Register Volume 76, Number 84 (Monday, May 2, 2011)]
[Proposed Rules]
[Pages 24421-24434]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10569]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2009-0647; FRL-9301-1]

Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Section 110(a)(2) Infrastructure Requirements for 1997 8-
Hour Ozone and Fine Particulate Matter National Ambient Air Quality 
Standards; New Mexico Ambient Air Quality Standards; Approval of New 
Mexico's PSD Program; CFR Codification Technical Corrections

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve submittals from the State of New 
Mexico pursuant to the Clean Air Act (CAA or Act) that address the 
infrastructure elements specified in the CAA section 110(a)(2), 
necessary to implement, maintain, and enforce the 1997 8-hour ozone and 
1997 fine particulate matter (PM2.5) national ambient air 
quality standards (NAAQS

[[Page 24422]]

or standards). We are proposing to find that the current New Mexico 
State Implementation Plan (SIP) meets the following infrastructure 
elements for the 1997 8-hour ozone NAAQS and the 1997 PM2.5 
NAAQS: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), 
(L), and (M). EPA is also proposing to approve a November 2, 2006, SIP 
revision to regulation 20.2.3 of the New Mexico Administrative Code 
(NMAC) (Ambient Air Quality Standards), to remove the state ambient air 
quality standards from being an applicable requirement under the 
State's Title V permitting program, found at 20.2.70 NMAC (Operating 
Permits). EPA is also proposing to correct an administrative oversight 
by converting our February 27, 1987, conditional approval of New 
Mexico's PSD program (52 FR 5964) to a full approval based on the 
November 2, 1988, approval of New Mexico's stack height regulations (53 
FR 44191), at which point New Mexico fully met the condition in the 
conditional approval. Please note the fact that we had not formally 
converted the February 27, 1987 conditional approval to a full 
approval, yet this had no impact on New Mexico's authority to implement 
the PSD program. Lastly, EPA is proposing to make a number of U.S. Code 
of Federal Regulations (CFR) codification technical corrections to 
amend the description of the approved New Mexico SIP. This action is 
being taken under section 110 and part C of the Act.

DATES: Comments must be received on or before June 1, 2011.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2009-0647, by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6comment.htm. Please click on ``6PD (Multimedia)'' and select 
``Air'' before submitting comments.
     E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please 
also send a copy by e-mail to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not 
on legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2009-0647. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Planning 
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an 
appointment. If possible, please make the appointment at least two 
working days in advance of your visit. There will be a fee of 15 cents 
per page for making photocopies of documents. On the day of the visit, 
please check in at the EPA Region 6 reception area at 1445 Ross Avenue, 
Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection during 
official business hours by appointment: New Mexico Environment 
Department (NMED), Air Quality Bureau, 1190 St. Francis Drive, Santa 
Fe, New Mexico 87502.

FOR FURTHER INFORMATION CONTACT: Ms. Dayana Medina, Air Planning 
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7241; 
fax number 214-665-6762; e-mail address medina.dayana@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means EPA.

Table of Contents

I. Background
    A. What are the National Ambient Air Quality Standards?
    B. What is a SIP?
    C. What is the background for this rulemaking?
    a. Section 110(a)(1) and (2)
    b. Greenhouse Gas (GHG) Component of PSD Programs
    D. What elements are required under Section 110(a)(2)?
II. What action is EPA proposing?
    A. Section 110(a)(1) and (2)
    B. CFR Codification Technical Correction to 40 CFR 52.1620(e)
    C. CFR Codification Technical Corrections to 40 CFR 52.1620(c) 
and 40 CFR 52.1640(c)(66)(i)(B)
    D. Conversion of Our Conditional Approval of New Mexico's PSD 
Program to Full Approval and CFR Codification Technical Corrections 
to 40 CFR 52.1634(a) and 40 CFR 52.1640(c)(39)
    E. SIP Revision to 20.2.3 NMAC
III. How has New Mexico addressed the elements of Section 110(a)(2)?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background

A. What are the National Ambient Air Quality Standards?

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

[[Page 24423]]

``may reasonably be anticipated to endanger public health and 
welfare,'' and to develop a primary and secondary standard for each 
NAAQS. The primary standard is designed to protect human health with an 
adequate margin of safety, and the secondary standard is designed to 
protect public welfare and the environment. EPA has set NAAQS for six 
common air pollutants, referred to as criteria pollutants: carbon 
monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur 
dioxide. These standards present state and local governments with the 
minimum air quality levels they must meet to comply with the Act. Also, 
these standards provide information to residents of the United States 
about the air quality in their communities.

B. What is a SIP?

    The SIP is a set of air pollution regulations, control strategies, 
other means or techniques, and technical analyses developed by the 
state, to ensure that the state meets the NAAQS. The SIP is required by 
section 110 and other provisions of the Act. These SIPs can be 
extensive, containing state regulations or other enforceable documents 
and supporting information such as emissions inventories, monitoring 
networks, and modeling demonstrations. Each state must submit these 
regulations and control strategies to EPA for approval and 
incorporation into the Federally enforceable SIP. Each Federally 
approved SIP protects air quality primarily by addressing air pollution 
at its point of origin.

C. What is the background for this rulemaking?

a. Section 110(a)(1) and (2)
    On July 18, 1997, we promulgated new and revised NAAQS for ozone 
(62 FR 38856) and PM (62 FR 38652). For ozone, we set an 8-hour 
standard of 0.08 parts per million (ppm) to replace the 1-hour standard 
of 0.12 ppm. For PM, we set a new annual and a new 24-hour NAAQS for 
particles with an aerodynamic diameter less than or equal to a nominal 
2.5 micrometers (denoted PM2.5). The annual PM2.5 
standard was set at 15 micrograms per cubic meter ([mu]g/m\3\). The 24-
hour PM2.5 standard was set at 65 [mu]g/m\3\. For more 
information on these standards, please see the 1997 Federal Register 
notices (62 FR 38856 and 62 FR 38652).
    Under sections 110(a)(1) and (2) of the Act, states are required to 
submit SIPs that provide for the implementation, maintenance, and 
enforcement (the infrastructure) of a new or revised NAAQS within three 
years following the promulgation of the NAAQS, or within such shorter 
period as EPA may prescribe. Section 110(a)(2) lists the specific 
infrastructure elements that must be incorporated into the SIPs, 
including for example, requirements for air pollution control measures, 
and monitoring that are designed to assure attainment and maintenance 
of the NAAQS. A table listing all 14 infrastructure elements is 
included in subsection D of section I of this proposed rulemaking.\1\ 
Thus states were required to submit such SIPs for the 1997 8-hour ozone 
and PM2.5 NAAQS to EPA no later than June 2000.\2\ However, 
intervening litigation over the 1997 8-hour ozone and PM2.5 
NAAQS created uncertainty about how to proceed and many states did not 
provide the required ``infrastructure'' SIP submission for these newly 
promulgated NAAQS.
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    \1\ Two elements identified in section 110(a)(2) are not 
governed by the 3-year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within 3 years after promulgation of a new or 
revised NAAQS, but rather are due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (i) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA and (ii) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D Title I of the CAA. Therefore, this action 
does not cover these specific SIP elements. This action also does 
not pertain to section 110(a)(2)(D)(i). Section 110(a)(2)(D)(i) 
contains four distinct requirements, or ``prongs,'' related to the 
impacts of interstate transport. The Interstate Transport SIP must 
prevent sources in the State from emitting pollutants in amounts 
which will: (1) Contribute significantly to nonattainment of the 
NAAQS in other states; (2) interfere with maintenance of the NAAQS 
in other states; (3) interfere with provisions to prevent 
significant deterioration of air quality in other states; or (4) 
interfere with efforts to protect visibility in other states. EPA 
published a finding on April 25, 2005 (70 FR 21147) that all states 
had failed to submit SIPs addressing interstate transport for the 8-
hour ozone and PM2.5 NAAQS, as required by section 
110(a)(2)(D)(i). Furthermore, there is a consent decree in place for 
seven states in the western United States, including New Mexico, to 
meet the requirements of section 110(a)(2)(D)(i) with regard to the 
1997 8-hour ozone and PM2.5 NAAQS (74 FR 64076, December 
7, 2009). Under the consent decree, for each of these seven states, 
EPA is required to fully approve SIPs and/or promulgate FIPs that 
satisfy the four ``prongs'' of section 110(a)(2)(D)(i) by specified 
dates. In prior actions, we approved the New Mexico SIP submittal 
for (1) the ``significant contribution to nonattainment prong'' of 
section 110(a)(2)(D)(i) (75 FR 33174, June 11, 2010) and (2) the 
``interfere with maintenance'' and ``interfere with measures to 
prevent significant deterioration'' prongs of section 
110(a)(2)(D)(i) (75 FR 72588, November 26, 2010). To address the 
fourth prong of section 110(a)(2)(D)(i), we proposed to disapprove 
the New Mexico Interstate Transport SIP provisions that address the 
requirement that emissions from New Mexico sources do not interfere 
with measures required in the SIP of any other state to protect 
visibility (76 FR 491, January 5, 2011). In the same rulemaking, we 
proposed to promulgate a FIP in order to prevent emissions from New 
Mexico sources from interfering with other states' measures to 
protect visibility, and to implement nitrogen oxides 
(NOX) and sulfur dioxide (SO2) emission limits 
necessary at one source to prevent such interference and to address 
the requirement for best available retrofit technology (BART) for 
NOX for this same source. For the 1997 ozone and 
PM2.5 NAAQS, the requirements of section 110(a)(2)(D)(i) 
are being addressed separately and are not included in the 
infrastructure SIPs.
    \2\ EPA issued a revised 8-hour ozone standard on March 27, 2008 
(73 FR 16436). On September 16, 2009, the EPA Administrator 
announced that EPA would take rulemaking action to reconsider the 
2008 primary and secondary ozone NAAQS. On January 19, 2010, EPA 
proposed to set different primary and secondary ozone standards than 
those set in 2008 to provide requisite protection of public health 
and welfare, respectively (75 FR 2938). The final reconsidered ozone 
NAAQS have yet to be promulgated. This rulemaking does not address 
the 2008 ozone standard.
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    On March 4, 2004, Earthjustice submitted a notice of intent to sue 
related to EPA's failure to issue findings of failure to submit related 
to the infrastructure requirements for the 1997 8-hour ozone and 
PM2.5 NAAQS. EPA entered into a consent decree with 
Earthjustice which required EPA, among other things, to complete a 
Federal Register notice announcing EPA's determinations pursuant to 
section 110(k)(1)(B) of the Act as to whether each state had made 
complete submissions to meet the requirements of section 110(a)(2) for 
the 1997 8-hour ozone NAAQS by December 15, 2007. Subsequently, EPA 
received an extension of the date to complete this Federal Register 
notice until March 17, 2008, based upon agreement to make the findings 
with respect to submissions made by January 7, 2008. In accordance with 
the consent decree, EPA made completeness findings for each state based 
upon what the Agency received from each state as of January 7, 2008. 
With regard to the 1997 PM2.5 NAAQS, EPA entered into a 
consent decree with Earthjustice which required EPA, among other 
things, to complete a Federal Register notice announcing EPA's 
determinations pursuant to section 110(k)(1)(B) of the Act as to 
whether each state had made complete submissions to meet the 
requirements of section 110(a)(2) for the 1997 PM2.5 NAAQS 
by October 5, 2008.
    On March 27, 2008, and October 22, 2008, we published findings 
concerning whether states had made the necessary 110(a)(2) submissions 
for the 1997 ozone (73 FR 16205) and PM2.5 standards (73 FR 
62902). In the March 27, 2008 action, we found that New Mexico had made 
a submission that addressed some, but not all of the section 110(a)(2) 
requirements of the Act necessary to implement the 1997

[[Page 24424]]

8-hour ozone NAAQS.\3\ In the October 22, 2008 action, we found that 
New Mexico had made a complete SIP submission that provides for the 
basic program elements specified in section 110(a)(2) of the Act 
necessary to implement the 1997 PM2.5 NAAQS.
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    \3\ In the March 27, 2008 action we found that New Mexico had 
not submitted a SIP revision that modified New Mexico's Prevention 
of Significant Deterioration (PSD) SIP for the 1997 8-hour ozone 
NAAQS to include NOX as an ozone precursor, which is 
necessary for approval of elements 110(a)(2)(C) and the PSD and 
visibility portion of element 110(a)(2)(J). On September 21, 2009, 
New Mexico submitted the necessary PSD SIP revision. We approved New 
Mexico's NOX as an ozone precursor submittal on November 
26, 2010 at 75 FR 72688.
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    On October 2, 2007, we issued ``Guidance on SIP Elements Required 
Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and 
PM2.5 National Ambient Air Quality Standards,'' Memorandum 
from William T. Harnett, Director, Air Quality Policy Division, Office 
of Air Quality Planning and Standards.\4\ The guidance provides that to 
the extent that existing SIPs for ozone and PM already meet the 
requirements, states need only certify that fact to us.
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    \4\ This and any other guidance documents referenced in this 
action are in the docket for this rulemaking.
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    On December 10, 2007, the Governor of New Mexico submitted a letter 
certifying that NMED has evaluated the New Mexico SIP and found that 
the SIP satisfies the requirements of section 110(a)(1) and (2) for the 
1997 8-hour ozone NAAQS. On March 3, 2008, the Governor of New Mexico 
submitted a letter certifying that NMED has evaluated the New Mexico 
SIP and found that the SIP does not satisfy all the requirements of 
section 110(a)(1) and (2) for the 1997 PM 2.5 NAAQS. The 
March 3, 2008 letter included a table with an explanation of how the 
current New Mexico SIP meets most of the requirements of section 
110(a)(2) for the PM 2.5 NAAQS and also a table outlining 
what sections of New Mexico's SIP need to be revised to comply with the 
section 110(a)(2) requirements for the PM 2.5 NAAQS.\5\ On 
April 19, 2011, NMED submitted a letter clarifying its submittals to 
make clear that the portion of the PSD SIP that is currently not acted 
upon by EPA (i.e., the portions from which EPA removed its previous 
approval) is not part of its infrastructure submissions.\6\ These 
letters are in the docket for this rulemaking.
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    \5\ In New Mexico's March 3, 2008 infrastructure SIP submittal, 
the State indicated that, at that time, the New Mexico SIP did not 
satisfy all the infrastructure requirements of section 110(a)(2) for 
the 1997 PM2.5 NAAQS. As explained in section III of this 
rulemaking and in the TSD, we are proposing to find that New 
Mexico's current SIP now meets all the infrastructure requirements 
of section 110(a)(2) for the 1997 PM 2.5 NAAQS.
    \6\ The April 19, 2011 letter clarified the State's December 10, 
2007 infrastructure SIP submittal for the 1997 8-hour ozone 
standard; the State's March 3, 2008 infrastructure SIP submittal for 
the 1997 PM 2.5 standard; and the State's June 12, 2009 
infrastructure SIP submittal for the 2006 PM 2.5 
standard. The State's April 19, 2011 letter is severable, as it 
clarifies three separate infrastructure SIP submittals. At this 
time, we are only proposing to take action on the State's December 
10, 2007, and March 3, 2008 submittals for the 1997 8-hour ozone and 
1997 PM 2.5 standards. We will take action on the June 
12, 2009 submittal for the 2006 PM 2.5 standard in a 
separate rulemaking.
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b. Greenhouse Gas (GHG) Component of PSD Programs
    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part distinct from one 
another, establish the overall framework for today's proposed action on 
the New Mexico SIP. Four of these actions include, as they are commonly 
called, the ``Endangerment Finding'' and ``Cause or Contribute 
Finding,'' which EPA issued in a single final action,\7\ the ``Johnson 
Memo Reconsideration,'' \8\ the ``Light-Duty Vehicle Rule,'' \9\ and 
the ``Tailoring Rule.'' \10\ Taken together and in conjunction with the 
CAA, these actions: (1) Established regulatory requirements for GHGs 
emitted from new motor vehicles and new motor vehicle engines; (2) 
determined that such regulations, when they took effect on January 2, 
2011, subjected GHGs emitted from stationary sources to PSD 
requirements; and (3) limited the applicability of PSD requirements to 
GHG sources on a phased-in basis. EPA took this last action in the 
Tailoring Rule, which, more specifically, established appropriate GHG 
emission thresholds for determining the applicability of PSD 
requirements to GHG-emitting sources. In December 2010, EPA followed up 
on these actions by issuing the ``PSD SIP Narrowing Rule,'' \11\ in 
which EPA withdrew its previous approval of SIP PSD programs in 24 
states, including New Mexico, that apply to GHG-emitting sources below 
the thresholds in the final Tailoring Rule. The Tailoring Rule and PSD 
SIP Narrowing Rule both discuss the states' ability to provide 
assurances that they will have adequate resources to meet the new GHG 
PSD permitting requirements at statutory levels of emissions, and the 
PSD SIP Narrowing Rule affected EPA's prior approval of portions of a 
state's SIP that do not incorporate thresholds established under the 
Tailoring Rule. On November 10, 2010, New Mexico adopted revisions to 
the State's PSD rules to implement the GHG thresholds established in 
EPA's GHG Tailoring Rule and submitted the corresponding SIP revision 
to EPA on December 1, 2010. On April 14, 2011, EPA proposed approval of 
New Mexico's GHG rules submitted on December 1, 2010 (76 FR 20907). EPA 
intends to take final action on the December 1, 2010 submittal in a 
separate rulemaking no later than EPA's final action on New Mexico's 
1997 ozone and PM 2.5 infrastructure SIP submittals. 
Additionally, the NMED submitted a clarification letter to EPA on April 
19, 2011, clarifying that the portions of the PSD program related to 
greenhouse gas permitting that remained approved after the promulgation 
of EPA's PSD SIP Narrowing Rule satisfy sections 110(a)(2)(C) and (J) 
of the Act. As we discuss further in this notice and in the TSD, New 
Mexico currently has adequate resources to carry out the GHG component 
of the currently approved PSD SIP program, which requires PSD 
permitting for sources emitting GHGs at or above the 75,000/100,000 
tons per year (tpy) threshold specified by the Tailoring Rule.
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    \7\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \8\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
    \9\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \10\ ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010).
    \11\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans.'' 75 FR 82536 (December 30, 2010).
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D. What elements are required under Section 110(a)(2)?

    The October 2, 2007, EPA guidance for addressing the SIP 
infrastructure elements required under sections 110(a)(1) and (2) for 
the 1997 ozone and PM 2.5 NAAQS, provides a list of 14 
essential components that States must include in their SIPs. These are 
listed in Table 1 below.

[[Page 24425]]

          Table 1--Section 110(a)(2) Elements Required in SIPs
------------------------------------------------------------------------
         Clean Air Act Citation                 Brief description
------------------------------------------------------------------------
Section 110(a)(2)(A)...................  Emission limits and other
                                          control measures.
Section 110(a)(2)(B)...................  Ambient air quality monitoring/
                                          data system.
Section 110(a)(2)(C)...................  Program for enforcement of
                                          control measures.
Section 110(a)(2)(D)(ii) \12\..........  Interstate and international
                                          transport.
Section 110(a)(2)(E)...................  Adequate resources.
Section 110(a)(2)(F)...................  Stationary source monitoring
                                          system.
Section 110(a)(2)(G)...................  Emergency power.
Section 110(a)(2)(H)...................  Future SIP revisions.
Section 110(a)(2)(J) \13\..............  Consultation with government
                                          officials.
Section 110(a)(2)(J)...................  Public notification.
Section 110(a)(2)(J)...................  Prevention of significant
                                          deterioration (PSD) and visi
                                          bility
                                         protection.
Section 110(a)(2)(K)...................  Air quality modeling/data.
Section 110(a)(2)(L)...................  Permitting fees.
Section 110(a)(2)(M)...................  Consultation/participation by
                                          affected local entities.
------------------------------------------------------------------------

II. What action is EPA proposing?

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

    EPA is proposing to approve the New Mexico SIP submittals that 
identify where and how the 14 basic infrastructure elements are in the 
EPA-approved SIP as specified in section 110(a)(2) of the Act. The New 
Mexico submittals do not include revisions to the SIP, but document how 
the current New Mexico SIP already includes the required infrastructure 
elements. In today's action, we are proposing to find that the 
following section 110(a)(2) elements are contained in the current New 
Mexico SIP and provide the infrastructure for implementing the 1997 
ozone and PM 2.5 standards: 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)); international and 
interstate pollution abatement (section 110(a)(2)(D)(ii)); adequate 
resources (section 110(a)(2)(E)); stationary source monitoring system 
(section 110(a)(2)(F)); emergency power (section 110(a)(2)(G)); future 
SIP revisions (section 110(a)(2)(H)); consultation with government 
officials (section 110(a)(2)(J)); public notification (section 
110(a)(2)(J)); PSD and visibility protection (section 110(a)(2)(J)); 
air quality modeling/data (section 110(a)(2)(K)); permitting fees 
(section 110(a)(2)(L)); and consultation/participation by affected 
local entities (section 110(a)(2)(M)).
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    \12\ Section 110(a)(2)(D)(ii) of the Act requires compliance 
with sections 115 and 126 of the Act, relating to international and 
interstate pollution abatement, respectively. Under section 
126(a)(1), SIPs must require notification to nearby, affected states 
of ``major proposed new (or modified) sources'' in either of two 
instances: (1) when the source is subject to PSD (section 
126(a)(1)(A)); or (2) when the source ``may significantly contribute 
to levels of air pollution in excess'' of the NAAQS in air quality 
control regions in other states (section 126(a)(1)(B)). Any new 
major stationary source or major modification in an attainment or 
unclassifiable area is subject to PSD. Therefore, in attainment or 
unclassifiable areas, any source that potentially falls under 
section 126(a)(1)(B) must also fall under (A). Thus, to the extent 
that section 126(a)(1)(B) provides any requirements separate from 
those in section 126(a)(1)(A), it does so only for major proposed 
new or modified sources in nonattainment areas, that is, for sources 
subject to nonattainment NSR. The requirements of section 
126(a)(1)(B) should therefore be addressed in states with 
nonattainment areas through those states' nonattainment NSR 
programs. As explained elsewhere in this proposed rulemaking, 
nonattainment NSR programs are not a subject of this action, so EPA 
will not address the requirements of section 126(a)(1)(B) in the 
infrastructure SIPs.
    \13\ Section 110(a)(2)(I) pertains to the nonattainment planning 
requirements of part D, Title I of the Act. This section is not 
governed by the 3-year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within 3 years after promulgation of a new or 
revised NAAQS, but are due at the time the nonattainment area plan 
requirements are due pursuant to section 172. Thus this action does 
not cover section 110(a)(2)(I).
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B. CFR Codification Technical Correction to 40 CFR 52.1620(e)

    EPA is proposing to correct a CFR codification technical error made 
in the table titled ``EPA Approved Nonregulatory Provisions and Quasi-
Regulatory Measures in the New Mexico SIP,'' found at 40 CFR 
52.1620(e).\14\ EPA approved New Mexico's Air Pollution Episode 
Contingency Plan into the SIP on August 21, 1990 (55 FR 34013) under 
the SIP codification method in existence at the time. When we changed 
our SIP codification method for New Mexico on July 13, 1998 (63 FR 
37493), we added the table currently found under 40 CFR 52.1620(e), and 
included entries in this table for all EPA approved nonregulatory 
provisions in the New Mexico SIP, including those approved prior to 
1998. We note that we made an error in not including the already SIP 
approved New Mexico Air Pollution Episode Contingency Plan when we 
added this table under 40 CFR 52.1620(e). We are proposing to make a 
CFR codification technical correction to amend the table titled ``EPA 
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the 
New Mexico SIP'' to include an entry for the New Mexico Air Pollution 
Episode Contingency Plan approved by EPA into the SIP on August 21, 
1990 (55 FR 34013, 40 CFR 52.1639(a)).\15\ EPA is proposing to make 
this CFR codification technical correction because it clarifies that 
EPA has approved the State's air pollution episode provisions into the 
New Mexico SIP.
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    \14\ 40 CFR 52.1620 provides the Identification of Plan for New 
Mexico, which lists the EPA-approved provisions of the SIP for the 
State, as provided under section 110 of the Act, 42 U.S.C. 7410, and 
40 CFR 51 to meet the NAAQS. New Mexico's EPA approved nonregulatory 
provisions are provided under 40 CFR 52.1620(e).
    \15\ The New Mexico Air Pollution Episode Contingency Plan is 
applicable statewide outside of the boundaries of Bernalillo County 
and Indian Lands, and was adopted by New Mexico on July 7, 1988, and 
submitted to EPA as a SIP revision on August 19, 1988.
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C. CFR Codification Technical Corrections to 40 CFR 52.1620(c) and 40 
CFR 52.1640(c)(66)(i)(B)

    EPA is also proposing to correct two CFR codification technical 
errors made in the table titled ``EPA Approved New Mexico 
Regulations,'' found at 40 CFR 52.1620(c).\16\ On October 20, 1995, New 
Mexico adopted a recodification of the State's air quality control 
regulations

[[Page 24426]]

(AQCRs).\17\ New Mexico submitted the recodification of, and revisions 
to, the SIP on January 8, 1996, and EPA approved these revisions into 
the SIP on September 26, 1997 (62 FR 50514). We would like to clarify 
that when we approved the recodification of, and revisions to, the New 
Mexico SIP in the September 26, 1997 rulemaking, we made a codification 
error in 40 CFR 52.1620(c) by incorrectly including entries in the 
table titled ``EPA Approved New Mexico Regulations'' for part 70 
(Operating Permits) and part 71 (Operating Permit Emission Fees) of 
20.2 NMAC, which constitute New Mexico's Title V permitting program and 
the associated permitting fees, respectively.\18\ The preamble of the 
September 26, 1997 rulemaking contains a table listing the rules 
submitted by New Mexico as a recodification, which EPA had reviewed and 
approved as a recodification to the New Mexico SIP (62 FR 50514, see 
pages 50516-17). This table in the preamble did not contain part 70 or 
part 71 of 20.2 NMAC, yet the CFR table found at 40 CFR 52.1620(c) and 
the New Mexico Identification of Plan at 40 CFR 52.1640(c)(66)(i)(B) 
\19\ erroneously included the two Title V regulations. The preamble of 
the September 26, 1997 rulemaking did not act to approve these two 
Title V regulations as part of the New Mexico SIP. Further, we have 
never taken any rulemaking action to approve parts 70 and 71 into the 
New Mexico SIP. Therefore, New Mexico's Title V permitting program has 
always been, and continues to be outside the scope of the New Mexico 
SIP.\20\ In addition, the table titled ``EPA Approved New Mexico 
Regulations,'' currently incorrectly lists the EPA approval date of the 
recodification of New Mexico's regulations in the SIP to be November 
25, 1997. Although the Federal Register citation (62 FR 50514) listed 
under the table is correct, the November 25, 1997 date is incorrect and 
should be changed to September 26, 1997. EPA is proposing to amend the 
table titled ``EPA Approved New Mexico Regulations,'' found at 40 CFR 
52.1620(c), by deleting the entries for parts 70 and 71 of 20.2 NMAC 
and by changing the EPA approval date of the 62 FR 50514 rulemaking 
from the currently listed date of November 25, 1997 to the correct date 
of September 26, 1997. We are also proposing to amend 40 CFR 
52.1640(c)(66)(i)(B) such that it reads as follows: ``New Mexico 
Administrative Code, Title 20, Chapter 2, Parts 3, 5, 7, 8, 10, 11, 12, 
13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 30, 31, 32, 33, 34, 40, 41, 60, 
61, 72 (Subparts I, II and III; Subpart V, Sections 501 and 502), 73, 
75, 79, and 80; adopted by the New Mexico Environmental Improvement 
Board on October 20, 1995, and filed with the State Records and 
Archives Center on October 30, 1995.'' EPA is proposing to make the CFR 
codification technical corrections to 40 CFR 52.1640(c)(66)(i)(B) and 
to the table titled ``EPA Approved New Mexico Regulations,'' found 
under 40 CFR 52.1620(c), as indicated above, because it is necessary to 
clarify which New Mexico air quality regulations are currently approved 
into the New Mexico SIP and the EPA approval date of these regulations 
into the SIP.\21\
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    \16\ New Mexico's air quality regulations approved by EPA into 
the SIP, along with the State's approval/effective date of the 
regulations, EPA's approval date of the regulations into the SIP, 
and the Federal Register notice citation for approval into the SIP 
are provided under 40 CFR 52.1620(c).
    \17\ In New Mexico's 1995 adoption of the recodification of the 
State's air quality regulations, the AQCRs existing at the time were 
renumbered and reformatted into the current NMAC, as was required by 
the New Mexico State Records Center.
    \18\ After construction, a source must obtain an operating 
permit, also called a Title V operating permit, as this requirement 
comes from Title V of the Act. Most Title V permits are issued by 
approved State and local permitting authorities. These permits are 
often called part 70 permits because the regulations that establish 
minimum standards for State permit programs are found at 40 CFR part 
70.
    \19\ 40 CFR 52.1640 identifies the original New Mexico SIP and 
all revisions submitted by New Mexico that were federally approved 
prior to January 1, 1998.
    \20\ New Mexico's Title V permitting program is legally not part 
of the SIP, but was approved by EPA on November 26, 1996 (61 FR 
60032) as the State's Title V permitting program.
    \21\ Any other CFR corrections to the New Mexico SIP that may be 
required will be addressed in a separate future action.
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D. Conversion of Our Conditional Approval of New Mexico's PSD Program 
to Full Approval and the CFR Codification Technical Corrections to 40 
CFR 52.1634(a) and 40 CFR 52.1640(c)(39)

    In reviewing the history of New Mexico's PSD program for the 
purposes of the infrastructure SIP, we found that the State's PSD 
program was conditionally approved into the SIP on February 27, 1987 
(52 FR 5964). In the February 27, 1987 rulemaking, New Mexico's PSD 
program was conditionally approved by EPA on the basis that (i) the 
State would not issue permits to sources that would require review 
under EPA's stack height regulations because they would have a stack 
height over 65 meters or would use any other dispersion techniques, as 
defined at 40 CFR 51.1(hh); and (ii) as quickly as possible, the State 
would adopt and submit as a plan revision a regulation that is 
equivalent to the regulations in 40 CFR Part 51 promulgated to 
implement Section 123 of the Act, regarding stack heights. On May 14, 
1985, the Governor of New Mexico submitted a letter in which he 
committed the State not to issue PSD permits to sources that would 
require review under EPA's stack height regulations because they would 
have stack heights over 65 meters or would use any other dispersion 
techniques, as defined at 40 CFR 51.1(hh).\22\ On April 26, 1988, New 
Mexico submitted as a SIP revision a new regulation on stack height 
requirements to satisfy the Federal requirements of 40 CFR Part 51. On 
November 2, 1988, EPA approved New Mexico's stack height regulation 
into the SIP (53 FR 44191). Thus, condition (i) of our February 27, 
1987 conditional approval of New Mexico's PSD program was met when New 
Mexico complied with the Governor's May 14, 1985 commitment letter in 
the interim, and condition (ii) was met when we approved New Mexico's 
stack height regulations in the November 2, 1988 rulemaking. Therefore, 
upon our approval of New Mexico's stack height regulations in the 
November 2, 1988 rulemaking, New Mexico had fully met all the 
conditions of EPA's February 27, 1987 conditional approval of the 
State's PSD program. However, due to an administrative oversight, EPA 
failed to convert the conditional approval of New Mexico's PSD program 
into a full approval at that time. We note that the fact that EPA has 
not formally converted the conditional approval to a full approval has 
no impact on the State's authority to implement the PSD program. 
Therefore, we now propose to convert our February 27, 1987 conditional 
approval of the State's PSD program to a full approval based on our 
approval of the State's stack height regulations in the November 2, 
1988 rulemaking (53 FR 44191).
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    \22\ See 40 CFR 52.1640(c)(37)(B).
---------------------------------------------------------------------------

    In accordance with our proposal to convert our February 27, 1987 
conditional approval of New Mexico's PSD program to a full approval, we 
intend to make codification technical corrections to 40 CFR 52.1634(a) 
and 40 CFR 52.1640(c)(39).\23\ 40 CFR 52.1634(a) currently identifies 
New Mexico's PSD program as meeting the requirements of part C of the 
Act for prevention of significant deterioration of air quality and as 
being SIP approved, but does not explain that we initially 
conditionally approved the State's PSD program on February 27, 1987, 
and that New Mexico has since then met the conditions of our

[[Page 24427]]

conditional approval. We are proposing to amend the paragraph at 40 CFR 
52.1634(a) to read as follows: ``The plan submitted by the Governor of 
New Mexico on February 21, 1984 (as adopted by the New Mexico 
Environmental Improvement Board (NMEIB) on January 13, 1984), August 
19, 1988 (as revised and adopted by the NMEIB on July 8, 1988), and 
July 16, 1990 (as revised and adopted by the NMEIB on March 9, 1990), 
Air Quality Control Regulation 707--Permits, Prevention of Significant 
Deterioration (PSD) and its Supplemental document, is approved as 
meeting the requirements of part C, Clean Air Act, for preventing 
significant deterioration of air quality. Additionally, on November 2, 
1988, EPA approved New Mexico's stack height regulation into the SIP 
(53 FR 44191), thereby satisfying the conditions of EPA's conditional 
approval of the State's PSD program on February 27, 1987 (52 FR 5964). 
Therefore, the conditional approval is converted to a full approval 
when we take final action on this CFR correction.'' 40 CFR 
52.1640(c)(39) currently identifies New Mexico's stack height 
regulation submitted on April 26, 1988 as having been approved into the 
SIP, but does not identify that this denotes that New Mexico has fully 
satisfied all conditions of our February 27, 1987 conditional approval 
of New Mexico's PSD program. We are proposing to amend the paragraph at 
40 CFR 52.1640(c)(39) to read as follows: ``On April 26, 1988, the 
Governor of New Mexico submitted a revision to the State Implementation 
Plan that contained Air Quality Control Regulation No. 710--Stack 
Height Requirements, as adopted by the New Mexico Environmental 
Improvement Board on March 10, 1988. Regulation No. 710 enables the 
State to ensure that the degree of emission limitation required for the 
control of any air pollutant under its SIP is not affected by that 
portion of any stack height that exceeds GEP or by any other dispersion 
technique. With EPA's November 2, 1988, approval of the State's 
revision to the State Implementation Plan to include Regulation No. 710 
(53 FR 44191), the State has satisfied the conditions of our February 
27, 1987 conditional approval of the State's plan for preventing 
significant deterioration of air quality (52 FR 5964). When we take 
final action on this CFR correction, the conditional approval will be 
converted to a full approval.''
---------------------------------------------------------------------------

    \23\ 40 CFR 52.1634(a) provides for New Mexico's SIP approved 
PSD program. As stated elsewhere in this rulemaking, 40 CFR 
52.1640(c) provides for all revisions submitted by New Mexico that 
were federally approved into the SIP prior to January 1, 1998. 40 
CFR 52.1640(c)(39) provides for New Mexico's SIP approved stack 
height regulation.
---------------------------------------------------------------------------

    We are proposing the above CFR codification technical corrections 
to the paragraphs at 40 CFR 52.1634(a) and 40 CFR 52.1640(c)(39) 
because we are proposing to convert our February 27, 1987 conditional 
approval of New Mexico's PSD program to a full approval.

E. SIP Revision to 20.2.3 NMAC

    In conjunction with our proposed finding that the New Mexico SIP 
meets the section 110(a)(1) and (2) infrastructure SIP elements listed 
above, we are also proposing to fully approve a severable portion of a 
SIP revision submitted by NMED to EPA on November 2, 2006. This portion 
of the submittal contains a revision to 20.2.3 NMAC (Ambient Air 
Quality Standards) and is not a requirement under the infrastructure 
SIPs, and therefore our proposed approval of this revision is severable 
from our proposed approval of New Mexico's infrastructure SIP 
submittals. The revision adds a new subpart 9 to 20.2.3 NMAC, including 
language to ensure that sources being issued a permit under the State's 
minor source permitting program, found at 20.2.72 NMAC (Construction 
Permits), are required to continue to address the State's ambient air 
quality standards in their application. The revision includes language 
in 20.2.3.9 NMAC that removes the state ambient air quality standards 
from being an applicable requirement under the State's Title V 
permitting program, found at 20.2.70 NMAC (Operating Permits). Because 
New Mexico's Title V program is outside the scope of the New Mexico 
SIP, this revision does not constitute a relaxation of the current New 
Mexico SIP.\24\ As described above in subsection C of this section, we 
made a codification error in 40 CFR 52.1620(c) by incorrectly including 
entries in the table titled ``EPA Approved New Mexico Regulations'' for 
part 70 (Operating Permits) and part 71 (Operating Permit Emission 
Fees) of 20.2 NMAC, which are State regulations that have not been 
approved into the New Mexico SIP. As the New Mexico Title V permitting 
program, codified at 20.2.70 NMAC, has not been approved into the New 
Mexico SIP, approval of the November 2, 2006 revision to 20.2.3 NMAC is 
appropriate and will not constitute a relaxation of the current New 
Mexico SIP. The SIP revision to 20.2.3 NMAC we are proposing to approve 
is severable from the portions of the November 2, 2006 SIP submittal on 
which we are taking no action in this rulemaking. By severable, we mean 
that the portion of the SIP revisions we are proposing to approve can 
be implemented independently of the portions on which we are not 
acting, without affecting the stringency of the submitted rules. EPA is 
not proposing to take action on any other portions of the November 2, 
2006 SIP revisions in this proposed rulemaking; EPA intends to act on 
the other revisions in a separate rulemaking. EPA proposes to approve 
the portion of the November 2, 2006 revision, as indicated above, 
because it clarifies the permitting requirements under the New Mexico 
SIP.
---------------------------------------------------------------------------

    \24\ See footnote 20 above.
---------------------------------------------------------------------------

III. How has New Mexico addressed the elements of Section 110(a)(2)?

    The New Mexico submittals address the elements of Section 110(a)(2) 
as described below. We provide a more detailed review and analysis of 
the New Mexico infrastructure SIP elements in the Technical Support 
Document (TSD), located in the docket for this rulemaking.
    Enforceable emission limits and other control measures, pursuant to 
section 110(a)(2)(A): Section 110(a)(2)(A) requires that all measures 
and other elements in the SIP be enforceable. This provision does not 
require the submittal of regulations or emission limits developed 
specifically for attaining the 1997 8-hour ozone and PM2.5 
standards. Those regulations are due later as part of attainment 
demonstrations.
    The New Mexico Environmental Improvement Act, found in Chapter 74, 
Article 1 of the New Mexico Statutes Annotated 1978 (denoted NMSA 1978 
74-1), created the NMED and the New Mexico Environmental Improvement 
Board (EIB). The New Mexico Air Quality Control Act codified at NMSA 
1978 74-2, delegates authority to the EIB to adopt, promulgate, 
publish, amend and repeal regulations consistent with the Air Quality 
Control Act to attain and maintain NAAQS and prevent or abate air 
pollution. See NMSA 1978 74-2-5(B)(1). The Air Quality Control Act also 
designates the NMED as the State's air pollution control agency and the 
Environmental Improvement Act provides the NMED with enforcement 
authority. The SIP rule at Title 20 of the New Mexico Administrative 
Code (denoted as 20 NMAC) describes NMED as the State's air pollution 
control agency and its enforcement authority, referencing the NMSA 1978 
(44 FR 21019, April 9, 1979; revised 49 FR 44101, November 2, 1984; 
recodified approved in 62 FR 50518, September 26, 1997).
    The NMED has promulgated rules to limit and control emissions of 
PM, sulfur dioxide (SO2), nitrogen oxides (NOX) 
and volatile organic compounds

[[Page 24428]]

(VOCs).\25\ These rules include emission limits, control measures, 
permits, fees, and compliance schedules and are found in Title 20, 
chapter 2 of the NMAC\26\ (denoted 20.2 NMAC): 20.2 NMAC parts 3, 5, 7-
8, 10-22, 30-34, 40-41, 72-75, and 98-99.
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    \25\ NOX and VOCs are precursors to ozone. PM can be 
emitted directly and secondarily formed; the latter is the result of 
NOX and SO2 precursors combining with ammonia 
to form ammonium nitrate and ammonium sulfate.
    \26\ Title 20 addresses Environmental Protection and chapter 2 
addresses Air Quality.
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    In this proposed action, EPA is not proposing to approve or 
disapprove any existing New Mexico SIP provisions with regard to excess 
emissions during startup, shutdown, or malfunction (SSM) of operations 
at a facility.\27\ EPA believes that a number of states may have SSM 
SIP provisions that are contrary to the Act and existing EPA 
guidance,\28\ and the Agency plans to address such state regulations in 
the future. In the meantime, EPA encourages any state having a 
deficient SSM provision to take steps to correct it as soon as 
possible. Similarly, in this proposed action, EPA is not proposing to 
approve or disapprove any existing state rules with regard to 
director's discretion or variance provisions. EPA believes that a 
number of states may have such provisions that are contrary to the Act 
and existing EPA guidance (52 FR 45044, November 24, 1987),\29\ and the 
Agency plans to take action in the future to address such state 
regulations. In the meantime, EPA encourages any state having a 
director's discretion or variance provision in its SIP which is 
contrary to the Act and EPA guidance to take steps to correct the 
deficiency as soon as possible.
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    \27\ EPA approved New Mexico's current provisions regarding 
excess emissions occurring during startup, shutdown, and malfunction 
(SSM) of operations at a facility on September 14, 2009 (74 FR 
46910).
    \28\ ``State Implementation Plans (SIPs): Policy Regarding 
Excess Emissions During Malfunctions, Startup, and Shutdown,'' 
Memorandum from Steven A. Herman, Assistant Administrator for 
Enforcement and Compliance Assurance, and Robert Perciasepe, 
Assistant Administrator for Air and Radiation, dated August 11, 
1999.
    \29\ The section addressing exemptions and variances is found on 
p. 45109 of the 1987 rulemaking.
---------------------------------------------------------------------------

    A detailed list of the applicable 20.2 NMAC parts discussed above 
is provided in the TSD. New Mexico's SIP clearly contains enforceable 
emission limits and other control measures, which are in the Federally 
enforceable SIP. EPA is proposing to find that the New Mexico SIP meets 
the requirements of section 110(a)(2)(A) with respect to the 1997 8-
hour ozone and PM2.5 NAAQS.
    Ambient air quality monitoring/data analysis system, pursuant to 
section 110(a)(2)(B): 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 NMED operates and 
maintains a statewide network of air quality monitors; data are 
collected, results are quality assured, and the data are submitted to 
EPA's Air Quality System\30\ on a regular basis. New Mexico's Statewide 
Air Quality Surveillance Network was approved by EPA on August 6, 1981 
(46 FR 40005), and consists of stations that measure ambient 
concentrations of the six criteria pollutants, including ozone and 
PM2.5. The air quality surveillance network undergoes annual 
review by EPA. On July 7, 2010, NMED submitted its 2010 Annual Air 
Monitoring Network Plan (AAMNP) that included the plans for the 1997 
ozone and PM2.5 NAAQS. EPA approved New Mexico's 2010 AAMNP 
on January 7, 2011.\31\ The NMED Web site provides the ozone and 
PM2.5 monitor locations, and current and historical data 
(http://air.nmenv.state.nm.us/).
---------------------------------------------------------------------------

    \30\ The Air Quality System (AQS) is EPA's repository of ambient 
air quality data. AQS stores data from over 10,000 monitors, 5000 of 
which are currently active. State, Local and Tribal agencies collect 
the data and submit it to AQS on a periodic basis.
    \31\ A copy of our approval letter is available in the docket 
for this rulemaking.
---------------------------------------------------------------------------

    In summary, New Mexico meets the requirement to establish, operate, 
and maintain an ambient air monitoring network, collect and analyze the 
monitoring data, and make the data available to EPA upon request. EPA 
is proposing to find that the current New Mexico SIP meets the 
requirements of section 110(a)(2)(B) with respect to the 1997 8-hour 
ozone and PM2.5 NAAQS.
    Program for enforcement of control measures and regulation of the 
modification and construction of any stationary source within the areas 
covered by the plan as necessary to assure that NAAQS are achieved, 
including a permit program, as required by Parts C and D, pursuant to 
section 110(a)(2)(C): Regarding a program for enforcement of control 
measures, as stated previously, 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 authority to 
enforce the state's environmental quality rules. The NMED established 
rules governing emissions of the criteria pollutants and their 
precursors throughout the State and these rules are in the Federally 
enforceable SIP. The rules in 20.2 NMAC parts 3, 5, 7-8, 10-22, 30-34, 
40-41, 72-75, and 98-99 include allowable emission rates, compliance, 
control plan requirements, actual and allowable emissions, monitoring 
and testing requirements, recordkeeping and reporting requirements, and 
control schedules. These rules clarify the boundaries beyond which 
regulated entities in New Mexico can expect enforcement action.
    To meet the requirement for having a program for the regulation of 
the modification and construction of any stationary source within the 
areas covered by the plan as necessary to assure that national ambient 
air quality standards are achieved, including a permit program as 
required by Parts C and D, generally, the State is required to have 
SIP-approved PSD, Nonattainment, and Minor NSR permitting programs 
adequate to implement the 1997 8-hour ozone and PM2.5 NAAQS. 
We are not evaluating nonattainment-related provisions, such as the 
Nonattainment NSR program required by part D in 110(a)(2)(C) and 
measures for attainment required by section 110(a)(2)(I), as part of 
the infrastructure SIPs for these two NAAQS because these submittals 
are required beyond the date (3 years from NAAQS promulgation) that 
section 110 infrastructure SIP submittals are required.
    PSD programs apply in areas that are meeting the NAAQS, referred to 
as areas in attainment, and in areas for which there is insufficient 
information to designate as either attainment or nonattainment, 
referred to as unclassifiable areas. As described in the section titled 
``What Action is EPA Proposing?,'' New Mexico's PSD program was 
conditionally approved into the SIP on February 27, 1987 (52 FR 5964). 
Today, we propose to convert the conditional approval to a full 
approval on the basis of our November 2, 1988 approval of New Mexico's 
April 26, 1988 submittal to include in the SIP a new regulation on 
stack height requirements to satisfy the Federal requirements of 40 CFR 
Part 51. Subsequent revisions to New Mexico's PSD program were approved 
into the SIP on August 21, 1990 (55 FR 34013), May 2, 1991 (56 FR 
20137), October 15, 1996 (61 FR 53639), March 10, 2003 (68 FR 11316), 
December 24, 2003 (68 FR 74483), September 5, 2007 (72 FR 50879), and 
November 26, 2010 (75 FR 72688).
    To meet the requirements of 110(a)(2)(C) for the 1997 ozone 
standard, EPA believes the State must

[[Page 24429]]

have updated its PSD rules to treat NOX as a precursor for 
ozone (70 FR 71612). On November 26, 2010, EPA approved revisions to 
New Mexico's PSD SIP for the 1997 8-hour ozone NAAQS to include 
NOX as an ozone precursor (75 FR 72688).
    To implement section 110(a)(2)(C) for the 1997 PM2.5 
standard, EPA believes that States should appropriately implement the 
interim policy for preconstruction (PSD) review as interpreted by legal 
rulings.\32\ States may follow this approach until May 16, 2011, the 
date by which we required states to provide revisions to their PSD 
regulations to implement the PM2.5 standard as provided 
under 73 FR 28321.\33\ During the transition to SIP-approved PSD 
requirements for PM2.5, New Mexico confirmed to EPA by 
letter that: (1) it does not use PM10 as a surrogate for 
PM2.5 in its permitting programs; (2) it requires that 
applicants include PM2.5 modeling and emissions in their PSD 
and minor source permit applications; and (3) the record for the NMED's 
permitting decision includes an explanation of how PM2.5 
emissions have been appropriately analyzed and estimated.\34\ (See also 
75 FR 52692, page 52700; 75 FR 72688, page 72694). Furthermore, the 
State has recently proposed to revise their rules to address 
PM2.5 in their PSD program, and expects to adopt these 
revisions in May 2011. The State is planning to submit these revised 
PSD rules to EPA as a SIP revision by May 16, 2011. EPA will act on 
this submission in a separate rulemaking.
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    \32\ ``Interim Implementation of New Source Review for 
PM2.5,'' Memorandum from John S. Seitz, Director of 
Office of Air Quality Planning and Standards, dated October 23, 
1997.
    \33\ The Federal Register notice 73 FR 28321 was published May 
16, 2008.
    \34\ July 23, 2010, letter from Mary Uhl, Bureau Chief, Air 
Quality Bureau, New Mexico Environment Department, to Thomas Diggs, 
Associate Director for Air Programs, EPA Region 6. This letter is in 
the docket for this rulemaking.
---------------------------------------------------------------------------

    New Mexico has the authority to issue permits under the SIP-
approved PSD program to sources of GHG emissions (75 FR 82536, page 
82536, December 30, 2010).\35\ The Tailoring Rule established 
thresholds that phase in the applicability of PSD requirements to GHG 
sources, starting with the largest GHG emitters, and were designed to 
relieve the overwhelming administrative burdens and costs associated 
with the dramatic increase in permitting burden that would have 
resulted from applying PSD requirements to GHG emission increases at or 
above only the mass-based statutory thresholds of 100/250 tpy generally 
applicable to all PSD-regulated pollutants starting on January 2, 2011. 
However, EPA recognized that even after it finalized the Tailoring 
Rule, many SIPs with approved PSD programs would, until they were 
revised, continue to apply PSD at the statutory thresholds, even though 
the states would not have sufficient resources to implement the PSD 
program at those levels. EPA consequently implemented its ``PSD SIP 
Narrowing Rule'' and narrowed its approval of those provisions of 
previously approved SIPs of 24 states, including New Mexico, that apply 
PSD to GHG emission increases from sources emitting GHGs below the 
Tailoring Rule thresholds (75 FR 82536, December 30, 2010). Through the 
PSD SIP Narrowing Rule, EPA withdrew its previous approvals of those 
programs to the extent the SIPs apply PSD to increases in GHG emissions 
from GHG-emitting sources below the Tailoring Rule thresholds. The 
portions of the PSD programs regulating GHGs from GHG-emitting sources 
with emission increases at or above the Tailoring Rule thresholds 
remained approved. The effect of EPA narrowing its approval in this 
manner is that the provisions of previously approved SIPs that apply 
PSD to GHG emissions increases from sources emitting GHGs below the 
Tailoring Rule thresholds have the status of having been submitted by 
the state but not yet acted upon by EPA (75 FR 82536, December 30, 
2010).
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    \35\ On June 24, 2010, the State submitted a letter to EPA 
stating that current New Mexico rules require regulating GHGs at the 
existing 100/250 tpy threshold, rather than at the higher thresholds 
set in the Tailoring Rule because the State does not have the 
authority to apply the meaning of the term ``subject to regulation'' 
established in the Tailoring Rule. New Mexico also submitted a 
letter on September 14, 2010, in response to the proposed GHG SIP 
Call again confirming that EPA correctly classified New Mexico as a 
State with authority to apply PSD requirements to GHGs. The 
September 14, 2010, letter also identifies that NMED is pursuing 
rulemaking activity to define the terms ``greenhouse gas'' and 
``subject to regulation.'' These two letters are in the docket for 
this rulemaking. As explained elsewhere in this rulemaking, on 
November 10, 2010, New Mexico adopted revisions to the State's PSD 
rules to implement the GHG thresholds established in EPA's GHG 
Tailoring Rule and submitted the corresponding SIP revision to EPA 
on December 1, 2010. On April 14, 2011, EPA proposed approval of New 
Mexico's GHG rules submitted on December 1, 2010 (76 FR 20907). EPA 
intends to take final action on the December 1, 2010 submittal in a 
separate rulemaking no later than EPA's final action on New Mexico's 
1997 ozone and PM2.5 infrastructure SIP submittals.
---------------------------------------------------------------------------

    On November 10, 2010, New Mexico adopted revisions to the State's 
PSD rules to implement the GHG thresholds established in EPA's GHG 
Tailoring Rule and submitted the corresponding SIP revision to EPA on 
December 1, 2010. On April 14, 2011, EPA proposed approval of New 
Mexico's GHG rules submitted on December 1, 2010 (76 FR 20907). EPA 
intends to take final action on the above proposal in a separate 
rulemaking no later than EPA's final action on New Mexico's 1997 ozone 
and PM2.5 infrastructure SIP submittals. We are proposing to 
find that the current New Mexico PSD SIP meets the requirements of 
section 110(a)(2)(C) with respect to the 1997 8-hour ozone and 
PM2.5 NAAQS, as long as we are able to fully approve New 
Mexico's GHG submittal on or before our final action on New Mexico's 
1997 ozone and PM2.5 infrastructure SIP submittals.
    Additionally, New Mexico submitted a clarification letter to EPA on 
April 19, 2011, clarifying that the portion of the GHG PSD program in 
the State's submittal under infrastructure SIP review is only the 
portion that remained approved after EPA's promulgation of the PSD SIP 
Narrowing Rule, which is the portion that regulates GHG-emitting 
sources with GHG emissions at or above the Tailoring Rule thresholds. 
Therefore, if we are unable to fully approve New Mexico's GHG 
submittal, in the alternative, we are proposing to find that the 
current New Mexico PSD SIP meets section 110(a)(2)(C) with respect to 
the 1997 8-hour ozone and PM2.5 NAAQS on the basis of the 
State's April 19, 2011 clarification letter.
    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, 71677). EPA provides states with a ``broad 
degree of discretion'' in implementing their Minor NSR programs (71 FR 
48696, 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 Act regulates emissions of all regulated air 
contaminants for which there is a NAAQS (20.2.72.200 NMAC). New 
Mexico's Minor NSR permitting requirements are found at 20.2.72 NMAC 
and were approved into the SIP on May 14, 1973 (38 FR 12702).\36\ In 
this action, EPA is proposing to approve New Mexico's infrastructure 
SIP for the 1997 8-hour ozone and PM2.5 NAAQS with respect 
to the general requirement of section 110(a)(2)(C) to include a program 
in the SIP that regulates the modification and construction of any

[[Page 24430]]

stationary source as necessary to assure that the NAAQS are achieved. 
EPA is not proposing to approve or disapprove the State's existing 
Minor NSR program itself to the extent that it is inconsistent with 
EPA's regulations governing this program. EPA believes that a number of 
states may have Minor NSR provisions that are contrary to the existing 
EPA regulations for this program. EPA intends to work with states to 
reconcile state Minor NSR programs with EPA's regulatory provisions for 
the program. The statutory requirements of section 110(a)(2)(C) provide 
for considerable flexibility in designing Minor NSR programs, and EPA 
believes it may be time to revisit the regulatory requirements for this 
program to give the states an appropriate level of flexibility to 
design a program that meets their particular air quality concerns, 
while assuring reasonable consistency across the country in protecting 
the NAAQS with respect to new and modified minor sources.
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    \36\ Revisions to New Mexico's minor source permitting program 
were most recently approved by EPA into the SIP on September 26, 
1997 (62 FR 50514).
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    EPA is proposing to find that the current New Mexico SIP meets the 
requirements of section 110(a)(2)(C) with respect to the 1997 8-hour 
ozone and PM2.5 NAAQS.
    Interstate and international transport, pursuant to section 
110(a)(2)(D)(ii): Section 110(a)(2)(D)(ii) of the Act requires 
compliance with sections 115 and 126 of the Act, relating to interstate 
and international pollution abatement. Section 115(a) addresses 
endangerment of public health or welfare in foreign countries from 
pollution emitted in the United States. Pursuant to section 115, the 
Administrator has neither received nor issued a formal notification 
that emissions from New Mexico are endangering public health or welfare 
in a foreign country. Section 126(a) of the Act requires new or 
modified sources to notify neighboring states of potential impacts from 
such sources. Under section 126(a)(1)(A), SIPs must require 
notification to nearby, affected states of ``major proposed new (or 
modified) sources'' when the source is subject to PSD. New Mexico's SIP 
approved PSD program rules at 20.2.74.400 NMAC satisfy the requirements 
of section 126(a)(1)(A) by providing that the NMED must send notice of 
the proposed action on PSD permits to, among others, ``any state * * * 
whose lands may be affected by emissions from the source or 
modification.'' The State also has no pending obligations under section 
126 of the Act.
    EPA is proposing to find that the New Mexico SIP meets the 
requirements of section 110(a)(2)(D)(ii) with respect to the 1997 8-
hour ozone and PM2.5 NAAQS.
    Adequate personnel, funding, and authority, pursuant to section 
110(a)(2)(E): The Department of the Environment Act provides that the 
secretary of the NMED ``shall * * * employ and fix the compensation of 
those persons necessary to discharge his duties * * *'' See NMSA 1978 
9-7A-6(B). The NMED is also authorized to receive State appropriations 
to implement environmental programs. See generally, NMSA 1978 9-7A. 
There are Federal sources of funding for the implementation of the 1997 
8-hour ozone and PM2.5 NAAQS, through, for example, the CAA 
sections 103 and 105 grant funds. The NMED receives Federal funds on an 
annual basis, under sections 103 and 105 of the Act, to support its air 
quality programs. Additionally, the State provides funds equal to 40 
percent of the 105 grant fees it receives.
    Fees collected for the Title V and non-Title V permit programs, and 
other inspections, maintenance and renewals required of other air 
pollution sources also provide necessary funds to help implement the 
State's air programs. Information on permitting fees is provided in the 
discussion for section 110(a)(2)(L) below. The Air Quality Control Act 
designates the NMED as the State air pollution control agency for all 
purposes under Federal legislation relating to air pollution and 
provides the NMED with the power ``to accept, receive and administer 
grants or other funds or gifts from public and private agencies, 
including the Federal government, or from any person * * *'' See NMSA 
1978 74-2-5.1(F). For more detail on funding sources, please see the 
TSD.
    The Air Quality Control Act delegates authority to the EIB to 
adopt, promulgate, publish, amend and repeal regulations consistent 
with the Air Quality Control Act to attain and maintain national 
ambient air quality standards and prevent or abate air pollution. See 
NMSA 1978 74-2-5(B)(1). The Environmental Improvement Act provides the 
NMED with the power ``to enforce the rules, regulations and orders 
promulgated by the board * * *'' See NMSA 1978 74-1-6(F). The Air 
Quality Control Act also gives the NMED the duty to ``develop and 
present to the environmental improvement board or the local board a 
plan for the regulation, control, prevention or abatement of air 
pollution * * *'' and gives the EIB the authority to adopt such a plan. 
See NMSA 1978 74-2-5.1(H) and NMSA 1978 74-2-5(B)(2). Therefore, the 
State has demonstrated it has adequate authority under its rules and 
regulations to carry out its SIP obligations with respect to the 1997 
8-hour ozone and PM2.5 NAAQS.
    As discussed previously in this rulemaking with regards to section 
110(a)(2)(C), on November 10, 2010, New Mexico adopted revisions to the 
State's PSD rules to implement the GHG thresholds established in EPA's 
GHG Tailoring Rule and submitted the corresponding SIP revision to EPA 
on December 1, 2010. EPA proposed approval of these revisions on April 
14, 2011 (76 FR 20907). The GHG Tailoring Rule implemented thresholds 
establishing applicability of the PSD permitting program to GHG-
emitting sources only if they emit GHGs in amounts above the 75,000/
100,000 tpy of carbon dioxide equivalent (denoted CO2e). 
Thus sources in affected states, including New Mexico, will not be 
subject to Federal or state requirements to obtain permits at the lower 
100/250 tpy level. The Tailoring Rule thresholds were designed to 
relieve the overwhelming administrative burdens and costs associated 
with the dramatic increase in permitting burden that would have 
resulted from applying PSD at the statutory levels (100/250 tpy). EPA 
intends to take final action on the above proposal in a separate 
rulemaking no later than EPA's final action on New Mexico's 1997 ozone 
and PM2.5 infrastructure SIP submittals. We are proposing to 
find that the current New Mexico PSD SIP meets section 110(a)(2)(C) 
with respect to the 1997 8-hour ozone and PM2.5 NAAQS, as 
long as we are able to fully approve New Mexico's GHG submittal on or 
before our final action on New Mexico's 1997 ozone and PM2.5 
infrastructure SIP submittals; or, in the alternative, we are proposing 
to find that the current New Mexico PSD SIP meets section 110(a)(2)(C) 
with respect to the 1997 8-hour ozone and PM2.5 NAAQS on the 
basis of the State's April 19, 2011 clarification letter.
    EPA is proposing to find that the New Mexico SIP meets the 
requirements of section 110(a)(2)(E) with respect to the 1997 8-hour 
ozone and PM2.5 NAAQS.
    Stationary source monitoring system, pursuant to section 
110(a)(2)(F): New Mexico's regulations at 20.2 NMAC parts 5, 7-8, 10-
20, 30-34, 40-41, and 72-74 require source monitoring for compliance, 
recordkeeping and reporting, and provide for enforcement with respect 
to all the NAAQS and their precursors. These source monitoring program 
requirements generate data for, among other pollutants, ozone, 
PM2.5, and the precursors to these pollutants (VOCs, 
NOX, and SO2).

[[Page 24431]]

    Under the New Mexico SIP rules, the NMED is required to analyze the 
emissions data from point, area, mobile, and biogenic (natural) 
sources. The NMED uses this data to track progress towards maintaining 
the NAAQS, develop control and maintenance strategies, identify sources 
and general emission levels, and determine compliance with New Mexico 
and EPA requirements. The State's emissions data are available on the 
NMED Web site (http://www.nmenv.state.nm.us). These rules have been 
approved by EPA into the SIP. A list of the rules and Federal Register 
citations are provided in the TSD.
    There are two requirements that New Mexico must meet regarding 
emissions inventories (EIs): the EI requirement for nonattainment 
areas, and the requirement to submit annual EI data to EPA's National 
Emissions Inventory (NEI) database. Because Nonattainment NSR is 
outside the scope of this rulemaking, we are not addressing New 
Mexico's EI for nonattainment areas in this proposed action. The NEI is 
EPA's central repository for air emissions data. EPA published the Air 
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the 
requirements for collecting and reporting air emissions data (73 FR 
76539). The AERR shortened the time states are given to report 
emissions data from 17 to 12 months, giving states one calendar year to 
submit emissions data. All states are required to submit a 
comprehensive emissions inventory every three years and report 
emissions for certain larger sources annually through EPA's online 
Emissions Inventory System (EIS). States report emissions data for the 
six criteria pollutants and the precursors that form them--nitrogen 
oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate 
matter, and volatile organic compounds. EPA compiles the emissions 
data, supplementing it where necessary, and releases it to the general 
public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. The NMED is current with their submittals to the 
NEI database; the 2008 data was submitted to EPA in 2010. The State's 
emissions data are also available on EPA's AirData Web site (http://www.epa.gov/air/data/index.html).\37\
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    \37\ The AirData Web site provides access to air pollution data 
for the entire United States and produces reports and maps of air 
pollution data based on criteria specified by the user.
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    EPA is proposing to find that the New Mexico SIP meets the 
requirements of section 110(a)(2)(F) with respect to the 1997 8-hour 
ozone and PM2.5 NAAQS.
    Emergency power, pursuant to section 110(a)(2)(G): Section 
110(a)(2)(G) requires States to provide for authority to address 
activities causing imminent and substantial endangerment to public 
health, including contingency plans to implement the emergency episode 
provisions in their SIPs. The Air Quality Control Act provides the NMED 
with authority to address environmental emergencies, and the NMED has 
contingency plans to implement emergency episode provisions in the SIP. 
New Mexico promulgated the ``Air Pollution Episode Contingency Plan for 
New Mexico,'' which includes contingency measures, and these provisions 
were approved into the SIP on August 21, 1990 (55 FR 34013). The 
criteria for ozone are based on a 1-hour average ozone level. These 
episode criteria and contingency measures are adequate to address ozone 
emergency episodes and are in the Federally approved SIP.
    As explained in the section of this rulemaking titled ``What Action 
Is EPA Proposing?,'' in this rulemaking we are also proposing to make a 
CFR codification technical correction to amend the table titled ``EPA 
Approved Nonregulatory Provisions And Quasi-Regulatory Measures In The 
New Mexico SIP'' under 40 CFR 52.1620(e), to include an entry for the 
New Mexico Air Pollution Episode Contingency Plan approved by EPA into 
the SIP on August 21, 1990 (see 55 FR 34013, 40 CFR 52.1639(a)). EPA is 
proposing to make this CFR codification technical correction because it 
clarifies that EPA previously approved the State's air pollution 
episode provisions into the New Mexico SIP.
    The 2009 Infrastructure SIP Guidance for PM2.5 
recommends that a state with at least one monitored 24-hour 
PM2.5 value exceeding 140.4 [micro]g/m\3\ since 2006 
establish an emergency episode plan and contingency measures to be 
implemented should such level be exceeded again. The 2006-2010 ambient 
air quality monitoring data \38\ for New Mexico do not exceed 140.4 
[micro]g/m\3\. The PM2.5 levels have consistently remained 
below this level (140.4 [micro]g/m\3\), and furthermore, the State has 
appropriate general emergency powers to address PM2.5 
related episodes to protect the environment and public health. Given 
the State's low monitored PM2.5 levels, EPA is proposing the 
State is not required to submit an emergency episode plan and 
contingency measures at this time, for the 1997 PM2.5 
standard. Additional detail is provided in the TSD.
---------------------------------------------------------------------------

    \38\ The ozone and PM data are available through AQS. The AQS 
data for PM are provided in the docket for this rulemaking.
---------------------------------------------------------------------------

    EPA is proposing to find that the New Mexico SIP meets the 
requirements of section 110(a)(2)(G) with respect to the 1997 8-hour 
ozone and PM2.5 NAAQS.
    Future SIP revisions, pursuant to section 110(a)(2)(H): The Air 
Quality Control Act provides that the EIB shall ``* * * adopt, 
promulgate, publish, amend, and repeal regulations consistent with the 
Air Quality Control Act to attain and maintain national ambient air 
quality standards and prevent or abate air pollution * * *.'' See NMSA 
1978 74-2-5(B)(1). The Environmental Improvement Act provides that the 
NMED shall, ``* * * enforce the rules, regulations and orders 
promulgated by the board * * *.'' See NMSA 1978 74-1-6(F). In addition, 
the Air Quality Control Act requires the NMED to, ``* * * advise, 
consult, contract with and cooperate with local authorities, other 
states, the Federal government and other interested persons or groups 
in regard to matters of common interest in the field of air quality 
control * * *'' See NMSA 1978 74-2-5.2(B). Thus, New Mexico has the 
authority to revise its SIP from time to time as may be necessary to 
take into account revisions of primary or secondary NAAQS, or the 
availability of improved or more expeditious methods of attaining such 
standards. Furthermore, New Mexico also has the authority under the 
above provisions to revise its SIP in the event the EPA, pursuant to 
the Act, finds the SIP to be substantially inadequate to attain the 
NAAQS.
    EPA is proposing to find that the New Mexico SIP meets the 
requirements of section 110(a)(2)(H) with respect to the 1997 8-hour 
ozone and PM2.5 NAAQS.
    Consultation with government officials, pursuant to section 
110(a)(2)(J): \39\ The Air Quality Control Act, as codified at NMSA 
1978 74-2-6, provides that, ``no regulations or emission control 
requirement shall be adopted until after a public hearing by the 
environmental improvement board or the local board'' and provides that, 
``at the hearing, the environmental improvement board or the local 
board shall allow all interested persons reasonable opportunity to 
submit data, views, or arguments orally or in writing and to examine 
witnesses testifying at the hearing.'' See NMSA 1978 74-2-6(B) and (D). 
In addition, the Air Quality Control Act provides that the NMED

[[Page 24432]]

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 State's SIP approved PSD rules at 20.2.74.400 NMAC 
mandate that the NMED shall provide for public participation and 
notification regarding permitting applications to any other state or 
local air pollution control agencies, local government officials of the 
city or county where the source will be located, and Federal Land 
Managers (FLM) whose lands may be affected by emissions from the source 
or modification. The State's SIP approved PSD rules at 20.2.74.403 NMAC 
require the NMED to consult with FLMs regarding permit applications for 
sources impacting Class I Federal areas.\40\ Furthermore, the State of 
New Mexico has committed in the SIP to consult continually with the 
FLMs on the review and implementation of the visibility program and to 
notify the FLM of any advance notification or early consultation with a 
major new or modifying source prior to the submission of the permit 
application.\41\ The State's SIP approved Transportation Conformity 
rules at 20.2.99.116 and 20.2.99.124 NMAC require that interagency 
consultation and opportunity for public involvement be provided before 
making transportation conformity determinations and before adopting 
applicable SIP revisions on transportation-related SIPs.\42\ These 
rules are in the Federally-approved SIP.
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    \39\ Section 110(a)(2)(J) is divided into three segments: 
Consultation with government officials; public notification; and PSD 
and visibility protection.
    \40\ Areas designated as mandatory Class I Federal areas consist 
of national parks exceeding 6,000 acres, wilderness areas and 
national memorial parks exceeding 5,000 acres, and all international 
parks that were in existence on August 7, 1977. CAA section 162(a).
    \41\ See 71 FR 4490, published January 27, 2006.
    \42\ See 65 FR 14877.
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    EPA is proposing to find that the New Mexico SIP meets the 
requirements of this portion of section 110(a)(2)(J) with respect to 
the 1997 8-hour ozone and PM2.5 NAAQS.
    Public notification if NAAQS are exceeded, pursuant to section 
110(a)(2)(J): Public notification begins with the air quality forecast, 
which advises the public of conditions capable of exceeding the NAAQS 
(see 54 FR 9783). New Mexico's provisions regarding public notification 
of instances or areas in which any primary NAAQS was exceeded were 
approved into the SIP on August 24, 1983 (48 FR 38466). In addition, 
the NMED air monitoring Web site provides live air quality data for 
each of the monitoring stations in New Mexico.\43\ The Web site also 
provides information on the health effects of ozone, particulate 
matter, and other criteria pollutants.
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    \43\ Please see http://air.nmenv.state.nm.us/.
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    EPA is proposing to find that the New Mexico SIP meets the 
requirements of this portion of section 110(a)(2)(J) with respect to 
the 1997 8-hour ozone and PM2.5 NAAQS.
    PSD and visibility protection, pursuant to section 110(a)(2)(J): 
This portion of section 110(a)(2)(J) in part requires that a state's 
SIP meet the applicable requirements of section 110(a)(2)(C) as 
relating to PSD programs. As detailed in the subsection titled 
``Program for enforcement of control measures and regulation of the 
modification and construction of any stationary source * * * pursuant 
to section 110(a)(2)(C)'' of this rulemaking and in the TSD, New 
Mexico's PSD program was conditionally approved into the SIP on 
February 27, 1987 (52 FR 5964). New Mexico has since then met the 
conditions of our conditional approval, so we are proposing to convert 
our conditional approval into a full approval. The State's PSD program 
is in the SIP (52 FR 5964, 53 FR 44191, 55 FR 43013, 56 FR 20137, 61 FR 
53639, 68 FR 11316, 68 FR 74483, 72 FR 50879, and 75 FR 72688). In 
addition, to meet the requirements of 110(a)(2)(C) for the 1997 ozone 
standard, EPA believes the State must have updated its PSD rules to 
treat NOX as a precursor for ozone. On November 26, 2010, 
EPA approved a SIP revision that modified New Mexico's PSD SIP for the 
1997 8-hour ozone standard to include NOX as an ozone 
precursor (75 FR 72688). To implement section 110(a)(2)(C) for the 1997 
PM2.5 standard, EPA believes that States should 
appropriately implement the interim policy for preconstruction review, 
as described above. During the transition to SIP-approved PSD 
requirements for PM2.5, NMED submitted a letter to EPA 
clarifying that: (1) It does not use PM10 as a surrogate for 
PM2.5 in its permitting programs; (2) it requires that 
applicants include PM2.5 modeling and emissions in their PSD 
and minor source permit applications; and (3) the record for the NMED's 
permitting decision includes an explanation of how PM2.5 
emissions have been appropriately analyzed and estimated. Furthermore, 
the State has recently proposed to revise their rules to address 
PM2.5 in their PSD program, and expects to adopt these 
revisions in May 2011. The State is planning to submit to EPA these 
revised PSD rules as a SIP revision by May 16, 2011. The State's minor 
source permitting requirements were approved at 38 FR 12702. The 
portions of the State's PSD program related to permitting GHGs at or 
above the Tailoring Rule thresholds are approvable in light of the PSD 
SIP Narrowing Rule. As discussed above, regarding GHG permitting, EPA 
intends to take final action on the December 1, 2010 submittal in a 
separate rulemaking no later than EPA's final action on New Mexico's 
1997 ozone and PM2.5 infrastructure SIP submittals. We are 
proposing to find that the current New Mexico PSD SIP meets section 
110(a)(2)(C) with respect to the 1997 8-hour ozone and PM2.5 
NAAQS, as long as we are able to fully approve New Mexico's GHG 
submittal on or before our final action on New Mexico's 1997 ozone and 
PM2.5 infrastructure SIP submittals; or, in the alternative, 
we are proposing to find that the current New Mexico PSD SIP meets 
section 110(a)(2)(C) with respect to the 1997 8-hour ozone and 
PM2.5 NAAQS on the basis of the State's April 19, 2011 
clarification letter. EPA is proposing to find that the New Mexico SIP 
meets the PSD requirement of section 110(a)(2)(C). A more detailed 
discussion is provided in subsection 110(a)(2)(C) above and in the TSD. 
EPA is proposing to find that the New Mexico SIP meets the requirements 
of this portion of section 110(a)(2)(J) with respect to the 1997 8-hour 
ozone and PM2.5 NAAQS.
    EPA approved New Mexico's Visibility Protection Plan and approved a 
Long-Term Strategy for Visibility Protection into the New Mexico SIP on 
January 27, 2006 (71 FR 4490). The State submitted a Regional Haze SIP 
to EPA on December 1, 2003. On January 15, 2009, we published a 
``Finding of Failure to Submit State Implementation Plans Required by 
the 1999 regional haze rule'' (74 FR 2392). We found that New Mexico 
had failed to submit for our review and approval a complete SIP for 
improving visibility in the nation's national parks and wilderness 
areas by the required date of December 17, 2007. Specifically, we found 
that New Mexico had failed to submit the plan elements required by 40 
CFR 51.309(g),\44\ and the plan element required by 40 CFR 
51.309(d)(4), which requires BART for stationary source emissions of 
NOX and PM under either 40 CFR 51.308(e)(1) or 
51.308(e)(2).\45\ On January 13, 2009, New Mexico submitted a letter to 
EPA,

[[Page 24433]]

clarifying that they intended to submit a Regional Haze SIP revision in 
2009 to address the requirements of 40 CFR 51.309(d)(4) and 40 CFR 
51.309(g).\46\ New Mexico has since stated that they intend to make 
this necessary submission in 2011. To date, the State has not made a 
Regional Haze SIP submission. The State proposed to adopt a Regional 
Haze SIP on February 28, 2011, and the public comment period will run 
through June 1, 2011. EPA will take action separately on New Mexico's 
Regional Haze SIP once the State makes this submittal. With regard to 
the applicable requirements for visibility protection, EPA recognizes 
that States are subject to visibility and regional haze program 
requirements under Part C of the Act (which includes sections 169A and 
169B). In the event of the establishment of a new NAAQS, however, the 
visibility and regional haze program requirements under part C do not 
change. Thus, we find that there is no new visibility obligation 
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes 
effective; and as such, visibility protection requirements are not 
relevant for purposes of this action. This would be the case even in 
the event a secondary PM2.5 NAAQS for visibility is 
established, because this NAAQS would not affect visibility 
requirements under part C. EPA is therefore proposing to find that the 
New Mexico SIP meets the requirements of this portion of section 
110(a)(2)(J) with respect to the 1997 8-hour ozone and PM2.5 
NAAQS.
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    \44\ 40 CFR 51.309(g) concerns the reasonable progress 
requirements for areas other than the 16 Class I areas covered by 
the Grand Canyon Visibility Transport Commission Report.
    \45\ New Mexico has the option to submit a Regional Haze SIP 
under either section 51.308 or section 51.309.
    \46\ January 13, 2009, letter from Bill Richardson, Governor of 
New Mexico, to Mayor Richard Greene, Regional Administrator, EPA 
Region 6. This letter is in the docket for this rulemaking.
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    Air quality modeling and submission of data, pursuant to section 
110(a)(2)(K): The Air Quality Control Act authorizes NMED to ``develop 
facts and make investigations and studies,'' thereby providing for the 
functions of environmental air quality assessment. As an example, New 
Mexico submitted modeling and control measures in a SIP revision to 
demonstrate attainment of the 1997 8-hour ozone standard.\47\ The 
modeling and control measures in the SIP revision were approved by EPA 
and adopted into the SIP.
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    \47\ See 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).
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    This section of the Act also requires that a SIP provide for the 
submission of data related to such air quality modeling to the EPA upon 
request. The Air Quality Control Act authorizes NMED to cooperate with 
the Federal government in regard to matters of common interest in the 
field of air quality control, thereby allowing it to make this 
submission to EPA. See NMSA 1978 74-2-5.2(B).
    EPA is proposing to find that the New Mexico SIP meets the 
requirements of section 110(a)(2)(K) with respect to the 1997 8-hour 
ozone and PM2.5 NAAQS.
    Permitting fees, pursuant to section 110(a)(2)(L): The Air Quality 
Control Act provides the EIB with the legal authority for establishing 
an emission fee schedule and a construction permit fee schedule to 
recover the reasonable costs of acting on permit applications, 
implementing, and enforcing permits. See NMSA 1978 74-2-7. New Mexico's 
Permit Fee System was approved by EPA on July 17, 1991 (56 FR 32511). 
New Mexico's Permit Fee System implements a fee system for all 
preconstruction air permits issued by NMED. New Mexico's regulations 
for construction permit fees are found at 20.2.75 NMAC. The State's 
Title V program and associated fees legally are not part of the SIP, 
but were approved by EPA on November 26, 1996 (61 FR 60032) as part of 
the New Mexico Title V Program. EPA is reviewing the New Mexico Title V 
program, including the Title V fee structure, separate from this 
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 program.
    EPA is proposing to find that the New Mexico SIP meets the 
requirements of section 110(a)(2)(L) with respect to the 1997 8-hour 
ozone and PM2.5 NAAQS.
    Consultation/participation by affected local entities, pursuant to 
section 110(a)(2)(M): As indicated above, the Air Quality Control Act 
provides that, ``no regulations or emission control requirement shall 
be adopted until after a public hearing by the environmental 
improvement board or the local board'' and provides that, ``at the 
hearing, the environmental improvement board or the local board shall 
allow all interested persons reasonable opportunity to submit data, 
views, or arguments orally or in writing and to examine witnesses 
testifying at the hearing.'' See NMSA 1978 74-2-6(B) and (D). In 
addition, the Air Quality Control Act 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). New 
Mexico's SIP approved PSD regulations at 20.2.74.400 NMAC mandate that 
the NMED shall provide for public participation and notification 
regarding permitting applications to any other state or local air 
pollution control agencies, local government officials of the city or 
county where the source will be located, and FLMs whose lands may be 
affected by emissions from the source or modification. New Mexico's SIP 
approved Transportation Conformity regulations at 20.2.99.116 and 
20.2.99.124 NMAC require that interagency consultation and opportunity 
for public involvement be provided before making transportation 
conformity determinations and before adopting applicable SIP revisions 
on transportation-related SIPs.\48\
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    \48\ See 65 FR 14877.
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    EPA is proposing to find that the New Mexico SIP meets the 
requirements of section 110(a)(2)(M) with respect to the 1997 8-hour 
ozone and PM2.5 NAAQS.

IV. Proposed Action

    We are proposing to approve the submittals provided by the State of 
New Mexico to demonstrate that the New Mexico SIP meets the 
requirements of Section 110(a)(1) and (2) of the Act for the 1997 8-
hour ozone and PM2.5 NAAQS. We are proposing to find that 
the current New Mexico SIP meets the infrastructure elements listed 
below:

    Emission limits and other control measures (110(a)(2)(A) of the 
Act);
    Ambient air quality monitoring/data system (110(a)(2)(B) of the 
Act);
    Program for enforcement of control measures (110(a)(2)(C) of the 
Act);
    Interstate and international transport (110(a)(2)(D)(ii) of the 
Act);
    Adequate resources (110(a)(2)(E) of the Act);
    Stationary source monitoring system (110(a)(2)(F) of the Act);
    Emergency power (110(a)(2)(G) of the Act);
    Future SIP revisions (110(a)(2)(H) of the Act);
    Consultation with government officials (110(a)(2)(J) of the Act);
    Public notification (110(a)(2)(J) of the Act);
    Prevention of significant deterioration and visibility protection 
(110(a)(2)(J) of the Act);
    Air quality modeling data (110(a)(2)(K) of the Act);
    Permitting fees (110(a)(2)(L) of the Act); and
    Consultation/participation by affected local entities (110(a)(2)(M) 
of the Act).
    EPA is also proposing to make CFR codification technical 
corrections to amend the following:
    1. The table titled ``EPA Approved Nonregulatory Provisions And 
Quasi-

[[Page 24434]]

Regulatory Measures In The New Mexico SIP,'' found under 40 CFR 
52.1620(e), by including an entry for New Mexico's already SIP approved 
Air Pollution Episode Contingency Plan.
    2. The table titled ``EPA Approved New Mexico Regulations,'' found 
under 40 CFR 52.1620(c), by (i) deleting entries for part 70 (Operating 
Permits) and part 71 (Operating Permit Emission Fees) of 20.2 NMAC and 
(ii) correcting the currently listed EPA approval date for the 
recodification of New Mexico's air quality regulations in the SIP.
    3. 40 CFR 52.1640(c)(66)(i)(B), by amending the paragraph such that 
it correctly identifies the State regulations submitted by the State 
and approved by EPA into the New Mexico SIP.
    4. 40 CFR 52.1634(a) and 40 CFR 52.1640(c)(39), by amending each 
paragraph such that it identifies that New Mexico has fully met all 
conditions of our February 27, 1987 conditional approval of New 
Mexico's PSD program such that our conditional approval is converted to 
a full approval.
    We are also proposing to convert our February 27, 1987, conditional 
approval of New Mexico's PSD program (52 FR 5964), to a full approval 
based on the November 2, 1988, approval of New Mexico's stack height 
regulations (53 FR 44191), at which point New Mexico fully met the 
condition in the conditional approval.
    Lastly, EPA is proposing to approve a severable revision to 
regulation 20.2.3 NMAC (Ambient Air Quality Standards), which was 
submitted by New Mexico on November 2, 2006. The revision to 20.2.3 
NMAC removes the state ambient air quality standards from being an 
applicable requirement under the State's Title V permitting program, 
found at 20.2.70 NMAC (Operating Permits). The revision also adds 
language to ensure that sources being issued a permit under the State's 
minor source permitting program, found at 20.2.72 NMAC (Operating 
Permits), are required to continue to address the State's ambient air 
quality standards in their application.
    EPA is proposing these actions in accordance with section 110 and 
part C of the Act and EPA's regulations and is consistent with EPA 
guidance.

V. Statutory and Executive Order Reviews

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

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxides, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: April 22, 2011.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2011-10569 Filed 4-29-11; 8:45 am]
BILLING CODE 6560-50-P
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