33174 Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations 

Name of non-regulatory SIP 

revision Applicable geographic area State submittal date EPA approval date Additional explanation 

*******

Reasonable Further Progress Plan 

(RFP), Reasonably Available 

Control Measures, and Contingency Measures.

Maryland portion of the Philadelphia 1997 8-hour ozone moderate nonattainment area.6/4/07 6/11/10 [Insert page number 

where the document begins].

2002 Base Year Inventory for 

VOC, NOX, and CO.

Maryland portion of the Philadelphia 1997 8-hour ozone moderate nonattainment area.6/4/07 6/11/10 [Insert page number 

where the document begins].

2008 RFP Transportation Conformity Budgets.Maryland portion of the Philadelphia 1997 8-hour ozone moderate nonattainment area.6/4/07 6/11/10 [Insert page number 

where the document begins].

■ 3. Section 52.1075 is amended by 

adding paragraph (j) to read as follows: 

§ 52.1075 Base year emissions inventory. 

* * * * * 

(j) EPA approves as a revision to the 

Maryland State Implementation Plan the 

2002 base year emissions inventories for 

the Maryland portion of the 

Philadelphia 1997 8-hour ozone 

moderate nonattainment area submitted 

by the Secretary of the Maryland 

Department of the Environment on June 

4, 2007. This submittal consists of the 

2002 base year point, area, non-road 

mobile, and on-road mobile source 

inventories in area for the following 

pollutants: volatile organic compounds 

(VOC), carbon monoxide (CO) and 

nitrogen oxides (NOX). 

■ 4. Section 52.1076 is amended by 

adding paragraphs (s) and (t) to read as 

follows: 

§ 52.1076 Control strategy plans for 

attainment and rate-of-progress: Ozone. 

* * * * * 

(s) EPA approves revisions to the 

Maryland State Implementation Plan 

consisting of the 2008 reasonable further 

progress (RFP) plan, reasonably 

available control measures, and 

contingency measures for the Maryland 

portion of the Philadelphia 1997 8-hour 

ozone moderate nonattainment area 

submitted by the Secretary of the 

Maryland Department of the 

Environment on June 4, 2007. 

(t) EPA approves the following 2008 

RFP motor vehicle emissions budgets 

(MVEBs) for the Maryland portion of the 

Philadelphia 1997 8-hour ozone 

moderate nonattainment area submitted 

by the Secretary of the Maryland 

Department of the Environment on June 

4, 2007: 

TRANSPORTATION CONFORMITY EMISSIONS BUDGETS FOR THE MARYLAND PORTION OF THE PHILADELPHIA AREA

Type of control strategy SIP Year VOC 

(TPD) 

NOX

TPD) Effective date of adequacy determination or SIP approval 

Rate of Progress Plan .................... 2008 2.3 7.9 April 13, 2009, (74 FR 13433), published March 27, 2009. 

[FR Doc. 2010–13687 Filed 6–10–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2007–0993; FRL–9160–2] 

Approval and Promulgation of 

Implementation Plans; New Mexico; 

Interstate Transport of Pollution 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving a portion of 

a State Implementation Plan (SIP) 

submitted by the State of New Mexico 

for the purpose of addressing the ‘‘good 

neighbor’’ provisions of the Clean Air 

Act (CAA) section 110(a)(2)(D)(i) for the 

1997 ozone National Ambient Air 

Quality Standard (NAAQS) and the 

1997 PM2.5 NAAQS. This SIP revision 

satisfies a portion of the State of New 

Mexico’s obligation to submit a SIP that 

demonstrates that adequate provisions 

are in place to prohibit air emissions 

from adversely affecting another state’s 

air quality through interstate transport. 

This rulemaking action is being taken 

under section 110 of the CAA and 

addresses one element of CAA section 

110(a)(2)(D)(i), which pertains to 

prohibiting air pollutant emissions from 

within New Mexico from contributing 

significantly to nonattainment of the 

1997 8-hour ozone and PM2.5 NAAQS in 

any other state. 

DATES: This final rule will be effective 

July 12, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R06–OAR– 

2007–0993. All documents in the docket 

are listed at www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 Freedom of 

Information Act (FOIA) Review Room 

between the hours of 8:30 a.m. and 4:30 

p.m. weekdays except for legal holidays. 

Contact the person listed in the FOR

FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253 to make an appointment. 

If possible, please make the 

appointment at least two working days 

in advance of your visit. There will be 

a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

FOR FURTHER INFORMATION CONTACT: 

Emad Shahin, Air Planning Section 

(6PD–L), Environmental Protection 

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Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations 33175 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone (214) 665–6717; fax number 

(214) 665–7263; e-mail address 

shahin.emad@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean the 

EPA. 

Outline 

I. What action is EPA taking? 

II. What is the background for this action? 

III. What comments did EPA receive and how 

has EPA responded to them? 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. What action is EPA taking? 

We are approving a portion of the 

submission from the State of New 

Mexico demonstrating that New Mexico 

has adequately addressed one of the 

required elements of the CAA section 

110(a)(2)(D)(i), the element that 

prohibits air pollutant emissions from 

sources within a state from contributing 

significantly to nonattainment of the 

relevant NAAQS in any other state. We 

have determined that emissions from 

sources in New Mexico do not 

significantly contribute to 

nonattainment of the 1997 8-hour ozone 

NAAQS or the 1997 PM2.5 NAAQS in 

any other state. Because emissions from 

sources in New Mexico do not 

significantly contribute to 

nonattainment in any other state, 

section 110(a)(2)(D)(i)(I) does not 

require any substantive changes to New 

Mexico’s SIP. 

The remaining three elements of 

section 110(a)(2)(D) are that a state’s SIP 

contain adequate provisions to prevent: 

Interference with maintenance of the 

NAAQS in any other state; interference 

with measures required to prevent 

significant deterioration of air quality in 

any other state; and interference with 

measures required to protect visibility 

in any other state. EPA will evaluate the 

New Mexico SIP and SIP submissions 

for compliance with these other 

requirements of section 110(a)(2)(D) for 

the 1997 8-hour ozone and 1997 PM2.5

NAAQS in future rulemakings. 

II. What is the background for this 

action? 

On July 18, 1997, EPA promulgated 

new standards for 8-hour ozone and fine 

particulate matter (PM2.5). This action is 

being taken in response to the July 18, 

1997 revision to the 8-hour ozone 

NAAQS and PM2.5 NAAQS. This action 

does not address the requirements for 

the 2006 PM2.5 NAAQS or the 2008 8- 

hour ozone NAAQS; those standards 

will be addressed in a later action. 

Section 110(a)(1) of the CAA requires 

states to submit SIPs to address a new 

or revised NAAQS within 3 years after 

promulgation of such standards, or 

within such shorter period as EPA may 

prescribe. Section 110(a)(2) lists the 

elements that such new SIPs must 

address, as applicable, including section 

110(a)(2)(D)(i) which pertains to 

interstate transport of certain emissions. 

On August 15, 2006, EPA issued its 

‘‘Guidance for State Implementation 

Plan (SIP) Submission to Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and 

PM2.5 National Ambient Air Quality 

Standards’’ (2006 Guidance) for SIP 

submissions that states should use to 

address the requirements of section 

110(a)(2)(D)(i). EPA developed this 

guidance to make recommendations to 

states for making submissions to meet 

the requirements of section 110(a)(2)(D) 

for the 1997 8-hour ozone NAAQS and 

1997 PM2.5 NAAQS. 

On September 17, 2007, EPA received 

a SIP submission from the State of New 

Mexico to address the requirements of 

section 110(a)(2)(D)(i) for both the 1997 

8-hour ozone NAAQS and 1997 PM2.5

NAAQS. The state based its submittal 

on EPA’s 2006 Guidance. As explained 

in the 2006 Guidance, the ‘‘good 

neighbor’’ provisions in section 

110(a)(2)(D)(i) require each State to 

submit a SIP that contains adequate 

provisions to prohibit emissions from 

sources within that state from adversely 

affecting another state in the ways 

contemplated in the statute. Section 

110(a)(2)(D)(i) contains four distinct 

requirements related to the impacts of 

interstate transport. In this rulemaking 

EPA is addressing only the requirement 

that pertains to preventing sources in 

the state from emitting pollutants in 

amounts which will contribute 

significantly to nonattainment of the 

1997 8-hour ozone NAAQS and the 

1997 PM2.5 NAAQS in any other state. 

In its submission, the State of New 

Mexico indicated that its current SIP is 

adequate to prevent such significant 

contribution to nonattainment in any 

other state, and thus no additional 

emissions controls are necessary at this 

time to alleviate interstate transport. 

On April 8, 2010, we published a 

direct final rule and a parallel proposal 

to approve the portion of New Mexico’s 

SIP submission that addressed one 

element of the CAA section 

110(a)(2)(D)(i), which pertains to 

prohibiting air pollutant emissions from 

within New Mexico from contributing 

significantly to nonattainment of the 

1997 8-hour ozone and 1997 PM2.5

NAAQS in any other state (75 FR 

17868). The direct final rule and 

proposal stated that if EPA received any 

relevant adverse comments during the 

public comment period ending on May 

10, 2010, then EPA would withdraw the 

direct final rule and respond to such 

comments in a subsequent final action 

based upon the proposal. EPA received 

adverse comments during the comment 

period, and accordingly EPA withdrew 

the direct final rule on May 3, 2010 (75 

FR 23167). The April 8, 2010, proposal 

(75 FR 17894) provides the basis for 

today’s final action. 

III. What comments did EPA receive 

and how has EPA responded to them? 

EPA received three comment letters 

on the April 8, 2010, direct final rule 

and proposal. The letters can be found 

on the internet in the electronic docket 

for this action. To access the letters, 

please go to http://www.regulations.gov 

and search for Docket No. EPA–R06– 

OAR–2007–0993, or contact the person 

listed in the FOR FURTHER INFORMATION

CONTACT paragraph above. The 

discussion below addresses those 

comments and our response. 

A. Comments From WildEarth 

Guardians 

Comment No. 1—The commenter 

argued that New Mexico and EPA did 

not appropriately assess impacts to 

nonattainment in downwind states. 

According to the commenter, New 

Mexico failed to assess the significance 

of downwind impacts in accordance 

with EPA precedent and refers to the 

1998 NOX SIP Call. 

EPA Response—EPA disagrees with 

the commenter on this point. Section 

110(a)(2)(D) does not explicitly specify 

how states or EPA should evaluate the 

existence of, or extent of, interstate 

transport and whether interstate 

transport is of sufficient magnitude to 

constitute ‘‘significant contribution to 

nonattainment’’ as a regulatory matter. 

The statutory language is ambiguous on 

its face and EPA must reasonably 

interpret that language when it applies 

it to factual situations before the 

Agency. 

EPA agrees that the NOX SIP Call is 

one rulemaking in which EPA evaluated 

the existence of, and extent of, interstate 

transport. In that action, EPA developed 

an approach that allowed the Agency to 

evaluate whether there was significant 

contribution to ozone nonattainment 

across an entire region that was 

comprised of many states. That 

approach included regional scale 

modeling and other technical analyses 

that EPA deemed useful to evaluate the 

issue of interstate transport on that 

geographic scale and for the facts and 

circumstances at issue in that 

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33176 Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations 

1Memorandum from William T. Harnett entitled 

Guidance for State Implementation Plan (SIP) 

Submissions to Meet Current Outstanding 

Obligations Under Section 110(a)(2)(D)(i) for the 8- 

hour Ozone and PM2.5 National Ambient Air 

Quality Standards (Aug. 15, 2006) (‘‘2006 

Guidance’’); p. 3. 

2 Id. at 3. 

3 Id. 

4 In this action the expression ‘‘CAIR’’ refers to the 

final rule published in the May 12, 2005 Federal 

Register and entitled ‘‘Rule to Reduce Interstate 

Transport of Fine Particulate Matter and Ozone 

(Clean Air Interstate Rule); Revisions to Acid Rain 

Program; Revisions to NOX SIP Call; Final Rule’’ (70 

FR 25162). 5 Id. at 5. 

rulemaking. EPA does not agree, 

however, that the approach of the NOX

SIP Call is the only way that states or 

EPA may evaluate the existence of, and 

extent of, interstate transport in all 

situations, and especially in situations 

where the state and EPA are evaluating 

the question on a state by state basis, 

and in situations where there is not 

evidence of widespread interstate 

transport. 

Indeed, EPA issued specific guidance 

with recommendations to states about 

how to address section 110(a)(2)(D) in 

SIP submissions for the 1997 8-hour 

ozone NAAQS. EPA issued this 

guidance document, entitled ‘‘Guidance 

for State Implementation Plan (SIP) 

Submissions to Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and 

PM2.5 National Ambient Air Quality 

Standards’’ on August 15, 2006.1 This 

guidance document postdated the NOX

SIP Call, and was developed by EPA 

specifically to address SIP submissions 

for the 1997 8-hour ozone NAAQS. 

Within the 2006 Guidance, EPA notes 

that it explicitly stated its view that the 

‘‘precise nature and contents of such a 

submission [are] not stipulated in the 

statute’’ and that the contents of the SIP 

submission ‘‘may vary depending upon 

the facts and circumstances related to 

the specific NAAQS.’’ 2 Moreover, 

within that guidance, EPA expressed its 

view that ‘‘the data and analytical tools 

available’’ at the time of the SIP 

submission ‘‘necessarily affect the 

content of the required submission.’’ 3

To that end, EPA specifically 

recommended that states located within 

the geographic region covered by the 

Clean Air Interstate Rule (CAIR) 4

comply with section 110(a)(2)(D) for the 

1997 8-hour ozone NAAQS by 

complying with CAIR itself. For states 

outside the CAIR rule region, however, 

EPA recommended that states develop 

their SIP submissions for section 

110(a)(2)(D) considering relevant 

information. 

EPA explicitly recommended that 

relevant information for section 

110(a)(2)(D) submissions addressing 

significant contribution to 

nonattainment ‘‘might include, but is 

not limited to, information concerning 

emissions in the State, meteorological 

conditions in the State, the distance to 

the nearest nonattainment area in 

another State, reliance on modeling 

conducted by EPA in determining that 

such State should not be included 

within the ambit of the CAIR, or such 

other information as the State considers 

probative on the issue of significant 

contribution.’’ 5 In addition, EPA 

recommended that states might elect to 

evaluate significant contribution to 

nonattainment using relevant 

considerations comparable to those used 

by EPA in CAIR, including evaluating 

impacts as of an appropriate year (such 

as 2010) and in light of the cost of 

control to mitigate emissions that 

resulted in interstate transport. 

The commenter did not acknowledge 

or discuss EPA’s actual guidance for 

section 110(a)(2)(D) SIP submissions for 

the 1997 8-hour ozone NAAQS, and 

thus it is unclear whether the 

commenter was aware of it. In any 

event, EPA believes that the New 

Mexico submission and EPA’s 

evaluation of it is consistent with EPA’s 

guidance for the 1997 8-hour ozone 

NAAQS. For example, as discussed in 

the direct final notice, the State of New 

Mexico and EPA considered 

information such as monitoring data in 

other states, geographical and 

meteorological information, and 

technical studies of the nature and 

sources of nonattainment problems in 

various downwind states. These are 

among the types of information that 

EPA recommended and that EPA 

considers relevant. Thus, EPA has 

concluded that the State’s submission, 

and EPA’s evaluation of that 

submission, meet the requirements of 

section 110(a)(2)(D) and are consistent 

with applicable guidance. 

Finally, EPA notes that the 

considerations the Agency 

recommended to states in the 2006 

Guidance are consistent with the 

concepts of the NOX SIP Call referenced 

by the commenter: (a) The overall 

nature of the ozone problem; (b) the 

extent of downwind nonattainment 

problems to which upwind state’s 

emissions are linked; (c) the ambient 

impact of the emissions from upwind 

States’ sources on the downwind 

nonattainment problems; and (d) the 

availability of high cost-effective control 

measures for upwind emissions. The 

only distinction in the case of the New 

Mexico submission at issue here would 

be that because the available evidence 

indicates that there is so very little 

contribution of emissions from New 

Mexico sources to nonattainment in 

other states, it is not necessary to 

advance to the final step and evaluate 

whether the cost of controls for those 

sources is above or below a certain cost 

of control as part of determining 

whether the contribution constitutes 

‘‘significant contribution to 

nonattainment’’ for regulatory purposes, 

as was necessary in the NOX SIP Call 

and in CAIR. 

Comment No. 2—The commenter 

believes that New Mexico and EPA did 

not appropriately assess impacts to 

nonattainment in downwind states in 

terms of air quality. Specifically, the 

commenter objected to EPA’s proposed 

approval because New Mexico assessed 

impacts in downwind states by 

considering only areas that had 

monitoring data as for evaluating 

significant contribution to 

nonattainment. In other words, the 

commenter is concerned that New 

Mexico did not assess impacts in areas 

that have no monitor. The commenter 

implied that this reliance on monitor 

data is inconsistent with both section 

110(a)(2)(D) and with EPA’s guidance, 

by which the commenter evidently 

means the NOX SIP Call. In support of 

this assertion, the commenter quoted 

from the NOX SIP Call proposal in 

which EPA addressed the proper 

interpretation of the statutory phrase 

‘‘contribute significantly to 

nonattainment:’’ 

‘‘The EPA proposes to interpret this term to 

refer to air quality and not to be limited to 

currently designated nonattainment areas. 

Section 110(a)(2)(D) does not refer to 

‘nonattainment areas,’ which is a phrase that 

EPA interprets to refer to areas that are 

designated nonattainment under section 107 

(section 107(d)(1)(A)(I))’’ 

According to the commenter, this 

statement, and similar ones in the 

context of the final NOX SIP Call 

rulemaking, establish that states and 

EPA cannot utilize monitoring data to 

evaluate the existence of, and extent of, 

interstate transport. Furthermore, the 

commenter interprets the reference to 

‘‘air quality’’ in these statements to 

support its contention, amplified in 

later comments, that EPA must evaluate 

significant contribution in areas in 

which there is no monitored 

nonattainment. 

EPA response—EPA disagrees with 

the commenter’s arguments. First, the 

commenter misunderstands the point 

that EPA was making in the quoted 

statement from the NOX SIP Call 

proposal (and that EPA has 

subsequently made in the context of 

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6 Michigan v. U.S. EPA, 213 F.3d 663, 674–681 

(DC Cir. 2000); North Carolina v. EPA, 531 F.3d 

896, 913–916 (DC Cir. 2008) (upholding EPA 

approach to determining threshold despite 

remanding other aspects of CAIR). 

7 2006 Guidance, p. 5. 

8 ‘‘Based on this approach, we predicted that in 

the absence of additional control measures, 47 

counties with air quality monitors [emphasis ours] 

would violate the 8-hour ozone NAAQS in 2010 

* * *.’’ From the CAIR proposed rule of January 30, 

2004 (69 FR 4566, 4581). The NOX SIP call 

proposed rule action reads: ‘‘* * * For current 

nonattainment areas, EPA used air quality data for 

the period 1993 through 1995 to determine which 

counties are violating the 1-hour and/or 8-hour 

NAAQS. These are the most recent 3 years of fully 

quality assured data which were available in time 

for this assessment.’’ See, 62 FR 60336. 

9EPA–454/B–07–002, April 2007, ‘‘Guidance on 

the Use of Models and other Analyses for 

Demonstrating Attainment of Air Quality Goals for 

Ozone, PM2.5 and Regional Haze’’, Office of Air 

Quality Planning and Standards, Air Modeling 

Group. Research Triangle Park, North Carolina, 

available at http://www.epa.gov/scram001/ 

guidance/guide/final-03-pm-rh-guidance.pdf. 

10The presentation is available for review as 

Document ID # EPA–R06–OAR–2007–0993–0008.9 

at Regulations.gov, Docket ID # EPA–R06–OAR– 

2007–0993. 

CAIR). When EPA stated that it would 

evaluate impacts on air quality in 

downwind states, independent of the 

current formal ‘‘designation’’ of such 

downwind states, it was not referring to 

air quality in the absence of monitor 

data. EPA’s point was that it was 

inappropriate to wait for either initial 

designations of nonattainment for a new 

NAAQS under section 107(d)(1), or for 

a redesignation to nonattainment for an 

existing NAAQS under section 

107(d)(3), before EPA could assess 

whether there is significant contribution 

to nonattainment of a NAAQS in 

another state. 

For example, in the case of initial 

designations, section 107(d) 

contemplates a process and timeline for 

initial designations that could well 

extend for two or three years following 

the promulgation of a new or revised 

NAAQS. By contrast, section 110(a)(1) 

requires states to make SIP submissions 

that address section 110(a)(2)(D) and 

interstate transport ‘‘within 3 years or 

such shorter period as the Administrator 

may prescribe’’ of EPA’s promulgation of 

a new or revised NAAQS. This schedule 

does not support a reading of section 

110(a)(2)(D) that is dependent upon 

formal designations having occurred 

first. This is a key reason why EPA 

determined that it was appropriate to 

evaluate interstate transport based upon 

monitor data, not designation status, in 

the CAIR rulemaking. 

The commenter’s misunderstanding 

of EPA’s statement concerning 

designation status evidently caused the 

commenter to believe that EPA’s 

assessment of interstate transport in the 

NOX SIP Call was not limited to 

evaluation of downwind areas with 

monitors. This is simply incorrect. In 

both the NOX SIP Call and CAIR, EPA 

evaluated significant contribution to 

nonattainment as measured or predicted 

at monitors. For example, in the 

technical analysis for the NOX SIP Call, 

EPA specifically evaluated the impacts 

of emissions from upwind states on 

monitors located in downwind states. 

The NOX SIP Call did not evaluate 

impacts at points without monitors, nor 

did the CAIR rulemaking. EPA believes 

that this approach to evaluating 

significant contribution is correct under 

section 110(a)(2)(D), and EPA’s general 

approach to this threshold 

determination has not been disturbed by 

the courts.6

Finally, EPA disagrees with the 

commenter’s argument that the 

assessment of significant contribution to 

downwind nonattainment must include 

evaluation of impacts on non-monitored 

areas. Neither section 110(a)(2)(D)(i)(I) 

provisions, nor the 2006 Guidance EPA 

issued for the 1997 8-hour ozone 

NAAQS, support the commenter’s 

position, as neither refers to any explicit 

mandatory or recommended approach 

to assess air quality in non-monitored 

areas.7 The same focus on monitor data 

as a means of assessing interstate 

transport is found in the NOX SIP Call 

and in CAIR. An initial step in both the 

NOX SIP Call and CAIR was the 

identification of areas with current 

monitored violations of the ozone and/ 

or PM2.5 NAAQS.8 The subsequent 

modeling analyses for NAAQS 

violations in future years (2007 for the 

SIP Call and 2010 for CAIR) likewise 

evaluated future violations at monitors 

in areas identified in the initial step. 

Thus, the commenter is simply in error 

that EPA has not previously evaluated 

the presence and extent of interstate 

transport under section 110(a)(2)(D) by 

focusing on monitoring data. Indeed, 

such monitoring data was at the core of 

both of these efforts. In neither of these 

rulemakings did EPA evaluate 

significant contribution to 

nonattainment in areas in which there 

was no monitor. This is reasonable and 

appropriate, because data from a 

properly placed federal reference 

method monitor is the way in which 

EPA ascertains that there is a violation 

of the 1997 8-hour ozone NAAQS or of 

the 1997 PM2.5 NAAQS in a particular 

area. 

EPA did not use photochemical 

modeling to determine if an area is 

violating the 1997 8-hour ozone or 1997 

PM2.5 NAAQS to designate the area as 

nonattainment without supporting 

monitoring data. EPA’s regulations for 

these NAAQS, the monitoring 

requirements for these NAAQS, and 

EPA’s guidance for designations for 

these NAAQS provide for such 

designations for violating areas to be 

based only on monitoring data. In 

addition, this is reasonable for these 

particular NAAQS because 

photochemical models, while based on 

the best science available, only provide 

a best estimate of air quality. EPA’s 2007 

modeling guidance 9 recognizes that 

model results and projections will 

continue to have uncertainty. 

Therefore, even if modeling analyses 

indicated violation of the 1997 8-hour 

ozone NAAQS in other states, EPA 

would not make a determination that 

these areas should be designated 

nonattainment for these NAAQS 

without monitoring data in the area to 

support a determination of 

nonattainment. In summary, in order for 

there to be significant contribution to 

nonattainment for either of these 

specific NAAQS, there must be a 

monitor with data showing a violation 

of that NAAQS. EPA has concluded that 

by considering data from monitored 

areas, its assessment of whether 

emissions from New Mexico contribute 

significantly to ozone nonattainment in 

downwind states is consistent with the 

2006 Guidance, and with the approach 

used by both the CAIR rule and the NOX

SIP Call, and EPA modeling guidance. 

Comment No. 3—In support of its 

comments that EPA should assess 

significant contribution to 

nonattainment in nonmonitored areas, 

the commenter argued that existing 

modeling performed by another 

organization ‘‘indicates that large areas 

of neighboring states will be likely to 

violate the ozone NAAQS.’’ According 

to the commenter, these likely 

‘‘violations’’ of the ozone NAAQS were 

predicted for the year 2018, as reflected 

in a slide from a July 30, 2008 

presentation before the Western 

Regional Air Partnership (‘‘Review of 

Ozone Performance in WRAP Modeling 

and Relevant to Future Regional Ozone 

Planning’’).10 In short, the commenter 

argues that modeling performed by the 

WRAP establishes that there will be 

violations of the 1997 8-hour ozone 

NAAQS in 2018 in non-monitored areas 

of states adjacent to New Mexico. 

EPA Response—EPA disagrees with 

this comment on several grounds. First, 

EPA does not agree that it is appropriate 

when satisfying the requirements of 

Section 110(a)(2)(D) to evaluate 

significant contribution to 

nonattainment for the 1997 8-hour 

ozone NAAQS by modeling ambient 

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33178 Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations 

11This document is available for review at the 

regulations.gov Web site under Docket ID No. EPA– 

R06–OAR–2007–0993. 

12Stoeckenius, T.E., C.A. Emery, T.P. Shah, J.R. 

Johnson, L.K. Parker, A.K. Pollack, 2009. ‘‘Air 

Quality Modeling Study for the Four Corners 

Region,’’ pp. ES–3, ES–4, 3–4, 3–12, 3–30, 5–1. 

Prepared for the New Mexico Environment 

Department, Air Quality Bureau, Santa Fe, NM, by 

ENVIRON International Corporation, Novato, CA. 

13 In this action the expression ‘‘UBAQS’’ refers to 

the ‘‘FINAL REPORT UBAQS TECHNICAL 

REPORT’’, June 30, 2009. The presentation is 

available for review as Document ID # EPA–R06– 

OAR–2007–0993–0008.9 at regulations.gov, Docket 

ID # EPA–R06–OAR–2007–0993. 

14UBAQS. The southwestern area referred to by 

the commenter includes portions of Washington, 

Iron, Kane, and Garfield Counties. 

15WG’s April 16, 2010 comment letter, pp. 3. The 

letter is available for review at the regulations.gov 

Web site Docket ID No. EPA–R06–OAR–2007–0993. 

Page three of the commenter’s letter. 

16See UBAQS, pp. 4–27 to 4–29. 

17EPA, Guidance on the Use of Models and other 

Analyses for Demonstrating Attainment of Air 

Quality Goals for Ozone, PM2.5 and Regional Haze. 

Office of Air Quality Planning and Standards, Air 

Modeling Group. Research Triangle Park, North 

Carolina (2007), available at http://www.epa.gov/ 

scram001/guidance/guide/final-03-pm-rhguidance.pdf. 

levels in areas where there is no monitor 

to provide data to establish a violation 

of the NAAQS in question. Section 

110(a)(2)(D) does not require such an 

approach, EPA has not taken this 

approach in the NOX SIP Call or other 

rulemakings under section 110(a)(2)(D), 

and EPA’s prior analytical approach has 

not been disturbed by the courts. 

Second, the commenter’s own 

description of the ozone concentrations 

predicted for the year 2018 as projecting 

‘‘violations’’ of the ozone NAAQS is 

inaccurate. Within the same sentence, 

quoted above, slide 28 is described as 

displaying the projected fourth 

maximum ozone reading for the year 

2018, and as indicating that ‘‘* * * air 

quality * * * will exceed or violate 

[emphasis ours] the 1997 ozone 

NAAQS.’’ By definition, a one year 

value of the fourth maximum above the 

NAAQS only constitutes an exceedance 

of the NAAQS; to constitute a violation 

of the 1997 8-hour ozone NAAQS, the 

average of the fourth high for three 

consecutive years at the same monitor 

must exceed the standard. Thus, even if 

the WRAP presentation submitted by 

the commenter were technically sound, 

the conclusion drawn from it by the 

commenter is inaccurate and does not 

support its claim of projected violations 

of the NAAQS in large areas (monitored 

or unmonitored) of New Mexico’s 

neighboring states. 

Even if EPA believed that it was 

appropriate to use modeling to establish 

violations of the 1997 8-hour ozone 

NAAQS, EPA has reviewed the WRAP 

presentation submitted by the 

commenter, and believes that there was 

a substantial error in the WRAP 

modeling software that led to 

overestimation of ground level ozone 

concentrations. A recent study 

conducted by Environ for the Four 

Corners Air Quality Task Force 

(FCAQTF) 11 has demonstrated that 

excessive vertical transport in the 

CMAQ and CAMx models over high 

terrain was responsible for 

overestimated ground level ozone 

concentrations due to downward 

transport of stratospheric ozone.12

Environ has developed revised vertical 

velocity algorithms in a new version of 

CAMx that eliminated the excessive 

downward transport of ozone from the 

top layers of the model. This revised 

version of the model is now being used 

in a number of applications throughout 

high terrain areas in the West. In 

conclusion, EPA believes that this key 

inadequacy of the WRAP model, noted 

above, makes it inappropriate support 

for the commenter’s concerns about 

large areas of other states violating the 

1997 8-hour ozone NAAQS projected for 

2018 in areas without monitors. 

Comment No. 4—As additional 

support for its assertion that EPA should 

require modeling to assess ambient 

levels in unmonitored portions of other 

states, the commenter relied on an 

additional study entitled the ‘‘2009 

Uinta Basin Air Quality Study’’ 

(UBAQS). The commenter argued that 

the UBAQS further supports its concern 

that New Mexico and EPA, having 

limited the evaluation of downwind 

impacts only to areas with monitors, 

failed to assess ozone nonattainment in 

non-monitored areas. According to the 

commenter, UBAQS modeling 13 results 

show that: (a) the Wasatch Front region 

is currently exceeding and will exceed 

in 2012 the 1997 8-hour ozone NAAQS; 

and (b) based on 2005 meteorological 

data, portions of the four counties in the 

southwestern corner of Utah are also 

currently in nonattainment and will be 

in nonattainment in 2012.14

EPA Response—As noted above, EPA 

does not agree that it is appropriate to 

assess significant contribution to 

nonattainment for the 1997 8-hour 

ozone NAAQS in the way advocated by 

the commenter. In particular, EPA does 

not agree that it is necessary to evaluate 

significant contribution to areas where 

only the model predicts nonattainment 

where there are no monitors. Even if 

EPA felt it was appropriate to use model 

results to determine areas that are not 

attaining the standard, EPA does not 

agree that the modeled nonattainment of 

the 1997 8-hour ozone NAAQS (current 

and projected) in the Wasatch Front 

Range area in the UBAQS supports the 

commenter’s concerns about the need to 

evaluate the possibility of significant 

contribution from New Mexico to 

nonattainment in these areas. Based on 

what the commenter presented, EPA 

sees several problems with the 

commenter’s interpretation of the 

UBAQS analysis results for counties in 

Utah’s southwestern corner: ‘‘based on 

2005 meteorological data, portions of 

Washington, Iron, Kane, and Garfield 

Counties are also in nonattainment and 

will be in nonattainment in 2012.’’ 15

First, the commenter’s interpretation of 

the predicted ozone concentrations 

shown in Figures 4–3a and 4–3b (pages 

4 and 5 of the comment letter) is 

inaccurate. A close review of the legend 

in these figures indicates that the 

highest ozone concentrations predicted 

by the model for portions of the 

counties noted above are somewhere 

between 81.00 and 85.99 ppb, but the 

exact modeled value is not specified 

and there are only three grid cells with 

this value range estimated. If the actual 

model prediction is less than or equal to 

84.94 ppb then the area is attaining the 

1997 8-hour ozone NAAQS, if it is 

predicted as greater than 84.94 ppb then 

the modeling is indicating that it is not 

attaining those NAAQS. Thus, the 

current and predicted design values for 

the three grid cells in southwestern 

Utah area identified in Figures 4–3a and 

4–3b could both be in attainment, or 

both in nonattainment, or one of them 

in attainment and the other in 

nonattainment, for the 1997 8-hour 

ozone NAAQS. EPA does not believe 

that this evidence adequately 

establishes that one or both areas 

definitely violate the NAAQS, even if 

the information were taken at face 

value. 

Second, even if the design values 

predicted for these unmonitored areas 

were at the top of the 81.00–85.99 ppb 

range, their reliability would remain 

questionable. The UBAQS itself 

identifies and illustrates major 

shortcomings of its modeling analysis, 

only to neglect assessing the impact of 

these shortcomings on the modeling 

results.16 The study deviates in at least 

two significant ways from EPA’s 2007 

guidance on SIP modeling.17 One 

deviation is the UBAQS modeling 

reliance on fewer than the five years of 

data recommended by EPA to generate 

an 8-hour ozone current design value 

(DVC). UBAQS relaxed this requirement 

so that sites with as little as 1 year of 

data were included as DVCs in the 

analysis. The other deviation is in the 

computation of the relative responsive 

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18 Id., DVC × RRF = DVF. 

19See UBAQS, p. 4–28. 

20See the New Mexico Annual Monitoring 

Network Plan dated July 14, 2009. The plan is 

available for review at the regulations.gov Web site 

under Docket ID No. # EPA–R06–OAR–2007–0993. 

factor (RRF), which directly affects the 

modeling’s future design value (DVF).18

Due to unavailability of data satisfying 

EPA’s recommendation that the RRF be 

based on a minimum of five days of 

ozone concentrations above 85 ppb, 

UBAQS modeling uses RRFs based on 

one or more days of ozone 

concentrations above 70 ppb.19 Also, 

looking at Figures 3–19a–j of the 

UBAQS report, which cover ozone 

modeling performance through 

September of 2005, shows the modeling 

to have an over prediction bias for 

ozone. So, EPA concludes that the 

modeling analysis results provided by 

the commenter are unreliable for 

projecting nonattainment status even if 

EPA believed it was appropriate to use 

modeling for this purpose for the 1997 

8-hr ozone NAAQS. 

Finally, even if it were appropriate to 

consider modeled violations and the 

modeling were reliable for this purpose, 

the commenter has not raised any 

convincing evidence that emissions 

from New Mexico sources are impacting 

southwestern Utah during the predicted 

high ozone events. Specifically, no 

assessment or source apportionment 

was performed that indicated sources in 

New Mexico contributed to the three 

grid cells with modeled high values that 

may be modeled nonattainment values 

in Utah. In fact, the predominant wind 

direction would not carry emissions 

from New Mexico into southwestern 

Utah. Furthermore, in evaluating the 

Figures provided (Fig 4–3a to 4–4b) and 

other information in the modeling 

report, the modeling also does not 

indicate that emissions from New 

Mexico are impacting the higher 

modeled ozone values in the 

southwestern Utah area. 

In summary, EPA does not agree that 

it is appropriate for purposes of section 

110(a)(2)(D) to use modeled 

nonattainment as a basis for evaluation, 

for these two NAAQS (1997 8-hour 

ozone NAAQS and PM 2.5 NAAQS) 

especially in light of the concerns with 

the modeling discussed above. Even if 

EPA were to use modeling for this 

purpose, the UBAQS modeling analyses 

does not clearly predict violations of the 

1997 8-hour ozone NAAQS in western 

Colorado and eastern Utah. In 

particular, the UBAQS modeling does 

not clearly establish violations of the 

NAAQS in southwestern Utah because 

of the way the results were reported. 

Significantly, the model does project 

violations in the Salt Lake City area (in 

2006 and 2012 model years), but 

monitors in the area do not substantiate 

these modeled predictions. Based on 

monitoring data for 2007–2009, the Salt 

Lake City area does not have a 

monitored design value within 6 ppb of 

the level of the 1997 8-hour ozone 

NAAQS. In addition, EPA does not 

consider the UBAQS modeling reliable 

because the modeling deviates from 

EPA guidance and appears to have an 

over-prediction bias. Finally, the 

commenter did not provide evidence 

that emissions from New Mexico in fact 

contributed significantly to the modeled 

exceedances or violations projected in 

this modeling. 

Comment No. 5—In support of its 

arguments that EPA should not assess 

significant contribution to 

nonattainment through evaluation of 

impacts at monitors instead of modeling 

impacts where there is no such monitor, 

the commenter cited a past statement by 

EPA to the effect that the ozone 

monitoring network in the western 

United States needs to be expanded. 

The quoted statements included EPA’s 

observation that: ‘‘[v]irtually all States 

east of the Mississippi River have at 

least two to four non-urban O3 monitors, 

while many large mid-western and 

western States have one or no nonurban monitors.’’ 74 FR 34525 (July 16, 

2009). From this statement, the 

commenter argues that it is not 

appropriate for EPA to limit evaluation 

of significant contribution to 

nonattainment of the ozone NAAQS in 

other states to reliance on monitoring 

data instead of modeled ambient levels. 

EPA Response—EPA does not 

disagree that there are relatively few 

ozone monitors in the western states, 

and that relatively few of these ozone 

monitors are currently located in nonurban areas of western states. However, 

the commenter failed to note that the 

quoted statement from EPA concerning 

the adequacy of western monitors came 

from the Agency’s July 16, 2009, 

proposed rulemaking entitled ‘‘Ambient 

Ozone Monitoring Regulations: 

Revisions to Network Design 

Requirements.’’ This statement was thus 

taken out of context, because EPA was 

in that proposal referring to changes in 

state monitoring networks that it 

anticipates will be necessary in order to 

implement not the 1997 8-hour ozone 

NAAQS, the subject of this rulemaking, 

but rather the next iteration of the ozone 

NAAQS. Because the new ozone 

standard is likely to be significantly 

more stringent than the 1997 8-hour 

ozone NAAQS, it is anticipated there 

will be a need to evaluate ambient levels 

in previously unmonitored areas of the 

western United States. The fact that 

additional monitors may be necessary in 

the future for a newer ozone NAAQS 

does not mean that the existing ozone 

monitoring networks are insufficient for 

the 1997 8-hour ozone NAAQS, as the 

commenter implies. Indeed, states 

submit annual monitor network reports 

to EPA and EPA evaluates these to 

insure that the deployment of monitors 

in the state meets the applicable 

regulatory requirements and guidance 

recommendations. 

For example, New Mexico itself 

submits just such a report on an annual 

basis, and EPA reviews it for 

adequacy.20 All states submit 

comparable reports. Absent a specific 

concern that another state’s current 

monitor network is inadequate to 

evaluate ambient levels of the 1997 

8-hour ozone NAAQS, EPA has no 

reason to believe that the evaluation of 

possible significant contribution from 

New Mexico sources in reliance on 

those monitors is incorrect. 

Comment No. 6—The commenter 

objected to EPA’s proposed approval of 

the New Mexico’s SIP submission 

because neither New Mexico nor EPA 

performed a specific modeling analysis 

to assure that emissions from New 

Mexico sources do not significantly 

contribute to nonattainment of the 1997 

8-hour ozone NAAQS in downwind 

States. 

EPA Response—First, this comment is 

incorrect. EPA and New Mexico did 

provide modeling as part of the 

evaluation of whether emissions from 

sources in New Mexico impact monitors 

with violating data in other states. The 

modeling is discussed in the proposed 

federal register and technical support 

document for this action and is one of 

the primary considerations in EPA’s 

approval. The modeling that the 

commenter claims is necessary but 

absent, is modeling to assess impacts in 

areas with no monitors. As explained 

above, EPA believes that the assessment 

of significant contribution to 

nonattainment under section 

110(a)(2)(D) for these NAAQS should be 

based upon impacts at monitors. 

Second, EPA disagrees with the 

commenter’s belief that only modeling 

can establish whether or not there is 

significant contribution from one state 

to another. As noted above, EPA does 

not believe that section 110(a)(2)(D) 

requires modeling. While modeling can 

be useful, EPA believes that other forms 

of analysis can be sufficient to evaluate 

whether or not there is significant 

contribution to nonattainment. For this 

reason, EPA’s 2006 Guidance 

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21WG’s April 16, 2010 comment letter, pp. 8–9. 

Complete versions of the EPA comment letters 

referenced here were attached to the comment as 

Exhibits 3 through 6, and are viewable on the 

Regulations.gov Web site as Documents ID No. 

EPA–R06–OAR–2007–0993–0008.3 through 0993– 

0008.6. 22See 69 FR 4581, January 30, 2004. 

recommended other forms of 

information that states might wish to 

evaluate as a qualitative approach as 

part of their section 110(a)(2)(D) 

submissions for the 1997 8-hour ozone 

NAAQS. EPA has concluded that the 

qualitative approach used by New 

Mexico in addition to modeling to 

assess the existence of, and extent of, 

any significant contribution to 

downwind ozone nonattainment is 

consistent with EPA’s 2006 Guidance. 

Comment No. 7—In further support of 

its argument that EPA must use 

modeling to evaluate whether there is 

significant contribution to 

nonattainment under section 

110(a)(2)(D), the commenter noted that 

EPA itself asks other agencies to 

perform such modeling in other 

contexts. As examples, the commenter 

cited four examples in which EPA 

commented on actions by other agencies 

in which EPA recommended the use of 

modeling analysis to assess ozone 

impacts prior to authorizing oil and gas 

development projects. As supporting 

material, the comment includes 

quotations from and references to EPA 

letters to Federal Agencies on assessing 

impacts of oil and gas development 

projects.21 The commenter questioned 

why EPA’s recommendation for such an 

approach in its comments to other 

Federal Agencies, did not result in its 

use of the same approach to evaluate the 

impacts from New Mexico’s emissions 

and to insure compliance with Section 

110(a)(2)(D)(i)(I). The commenter 

reasoned that the emissions that would 

result from the actions at issue in the 

other agency decisions, such as selected 

oil and gas drilling projects, would be 

of less magnitude and importance than 

the statewide emissions at issue in an 

evaluation under section 110(a)(2)(D). 

EPA Response—As explained above, 

this comment is misplaced because EPA 

and New Mexico did employ modeling 

as part of the evaluation. Further, EPA 

disagrees with the commenter’s 

fundamental argument that modeling is 

mandatory in all instances in order to 

evaluate significant contribution to 

nonattainment, whether by section 

110(a)(2)(D), by EPA guidance, or by 

past EPA precedent. EPA’s applicable 

guidance made recommendations as to 

different approaches that could lead to 

demonstration of the satisfaction of the 

interstate transport requirements for 

significant contribution to 

nonattainment in other states. EPA 

explicitly recommended that relevant 

information for section 110(a)(2)(D) 

submissions addressing significant 

contribution to nonattainment ‘‘might 

include, but is not limited to, 

information concerning emissions in the 

State, meteorological conditions in the 

State, the distance to the nearest 

nonattainment area in another State, 

reliance on modeling conducted by EPA 

in determining that such State should 

not be included within the ambit of the 

CAIR, or such other information as the 

State considers probative on the issue of 

significant contribution.’’ Even EPA’s 

own CAIR analysis relied on a 

combination of qualitative and 

quantitative analyses. EPA’s CAIR 

analysis excluded certain western states 

on the basis of a qualitative assessment 

of topography, geography, and 

meteorology.22

Furthermore, EPA believes that the 

commenter’s references to EPA 

statements commenting on the actions 

of other agencies are inapposite. As the 

commenter is aware, those comments 

were made in the context of the 

evaluation of the impacts of various 

federal actions pursuant to National 

Environmental Policy Act, not the Clean 

Air Act. As explained above, in the 

context of section 110(a)(2)(D), EPA 

does not agree that only modeling is 

always required to make that different 

type of evaluation, and EPA itself has 

relied on other more qualitative 

evidence when it deemed that evidence 

sufficient to reach a reasoned 

determination. 

Comment No. 8—In further support of 

its argument that EPA should require a 

specific type of modeling to evaluate 

significant contribution to 

nonattainment, the commenter referred 

to EPA regulations governing 

nonattainment SIPs. The commenter 

noted 40 CFR 51.112(a)(1), which states 

that: ‘‘[t]he adequacy of a control 

strategy shall be demonstrated by means 

of applicable air quality models, data 

bases, and other requirements specified 

in appendix W of [Part 51] (Guideline 

on Air Quality Models).’’ The 

commenter argues that this regulation 

appears to support the commenter’s 

position that modeling is required to 

satisfy the significant contribution 

element of 110(a)(2)(D). 

EPA Response—EPA disagrees with 

this comment. The cited language 

implies that the need for control strategy 

requirements has already been 

demonstrated, and sets a modeling 

analysis requirement to demonstrate the 

adequacy of the control strategy 

developed to achieve the reductions 

necessary to prevent an area’s air quality 

from continuing to violate the NAAQS. 

EPA’s determination that emissions 

from sources in New Mexico do not 

contribute significantly to 

nonattainment for the 1997 8-hour 

ozone NAAQS in any other state 

eliminates the need for a control 

strategy aimed at satisfying the section 

110(a)(2)(D) requirements. Moreover, 

EPA interprets the language at 40 CFR 

51.112(a): ‘‘[e]ach plan must 

demonstrate that the measures, rules, 

and regulations contained in it are 

adequate to provide for the timely 

attainment and maintenance of the 

national standard that it implements,’’ to 

refer to modeling for attainment 

demonstrations, an integral part of 

nonattainment area SIPs under part D of 

the CAA. This interpretation was 

upheld by the Sixth Circuit Court of 

Appeals. Wall v. U.S. EPA, 265 F.3d 

426, 436 (6th Cir. 2001). This modeling 

may also be appropriate under certain 

circumstances for maintenance SIPs 

under section 110(a)(1). Thus, the 

commenter’s cited regulation is not 

relevant to EPA’s technical 

demonstration assessing whether 

emissions from New Mexico contribute 

significantly to nonattainment in any 

other states under section 

110(a)(2)(D)(i). 

Comment No. 9—The commenter 

expressed concern with EPA statements 

in the proposed approval about the 

current factual attainment of the Denver 

Metro/North Front Range area of 

Colorado. The commenter noted that 

nine counties in the Denver area are 

currently formally designated 

‘‘nonattainment’’ for the 1997 8-hour 

ozone NAAQS. The commenter took 

issue with EPA’s description of the 

nature of the nonattainment problem in 

this area as resulting from an unusually 

bad ozone season that ‘‘temporarily’’ 

resulted in violations of the NAAQS. 

The commenter argued that data from 

the 2001–2003 period and the 2005– 

2007 period showed consistent 

violations of the 1997 8-hour ozone 

NAAQS in the Denver area, and that 

these violations are the reason for the 

current nonattainment designation. 

EPA Response—EPA disagrees that 

formal designation status of an area is 

the most important consideration in 

evaluating the existence of, and extent 

of, the impacts of interstate transport 

from one state to another. In past actions 

under section 110(a)(2)(D), EPA has 

interpreted that provision to turn upon 

the actual monitored ambient levels in 

a downwind area, regardless of the 

formal designation status of the area. 

For example, EPA developed the CAIR 

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23See: Final CAIR rule, 70 FR 25,162, 25,263– 

25,269. 

24EPA notes that the commenter itself also made 

the argument that nonattainment for purposes of 

section 110(a)(2)(D) should be viewed ‘‘in terms of 

air quality, and not in terms of area designations’’ 

on page 2 of its own comment letter. 

25 Data from EPA’s Air Quality System which is 

EPA’s repository of ambient air quality data. 

(http://www.epa.gov/ttn/airs/airsaqs/). 

26 ‘‘Denver Metro Area & North Front Range 

Ozone Action Plan Including Revisions to the State 

Implementation Plan’’, Approved by Colorado Air 

Quality Control Commission, December 12, 2008. 

rule based upon evaluation of monitor 

data showing violations of the 1997 

PM2.5 NAAQS in certain areas, in 

advance of completing the designation 

process for those NAAQS under section 

107(d). 23 EPA agrees that the 

designation status of an area is a 

relevant consideration, but the actual 

monitored ambient levels are an 

appropriate measure, especially when 

there is evidence that the monitored 

levels are different than reflected by the 

designation for the area. EPA itself has 

also looked to future attainment status 

as a means of evaluating the presence of, 

and extents of, interstate transport. This 

analysis depends not upon the 

anticipated formal designation status of 

the area, but rather upon the anticipated 

monitored level of the area.24

EPA believes that the commenter is 

placing undue importance upon the 

EPA’s characterization of the data from 

Denver area monitors as ‘‘temporarily’’ 

in nonattainment based on the ‘‘bad’’ 

ozone season of 2007. EPA agrees that 

this area has historically had relatively 

high ambient levels. However, as 

explained in the proposal, these levels 

have improved, and more importantly, 

have improved during the period that is 

most relevant and most recent. As noted 

in the proposal, recent monitoring data 

from the Denver area for the 2007–2009 

period indicates that the area is below 

the level of the NAAQS. For this trend 

to change, EPA anticipates that the 

Denver area would have to have 

dramatically higher ozone levels in 2010 

than the area has experienced for many 

years. EPA believes that it is more 

reasonable to conclude that the 

monitored attainment of this area at the 

time of the analysis done by New 

Mexico will continue. Therefore there 

could not be significant contribution 

from sources in New Mexico to 

nonattainment in Denver. 

EPA believes that the downward 

trend in monitored nonattainment in the 

Denver area supports this conclusion. 

At the time the modeling was performed 

to support the state’s section 

110(a)(2)(D) submission, Denver was 

monitoring attainment (the 2004–2006 

8-Hour Ozone Design Value (DV) was 81 

ppb).25 In 2007, the Denver area 

experienced a particularly bad ozone 

season, and inclusion of the data from 

this year did temporarily affect the 

monitored values in this area. However, 

the most recent data for this area, 

preliminary data for 2007–2009 DV 

(awaiting final data validation), is 82 

ppb even with inclusion of the very 

high ozone values from 2007. Thus, the 

area’s most recent DV based upon 

preliminary data is several ppb below 

the 1997 8-hour ozone NAAQS, and the 

area is therefore currently monitoring 

attainment. 

The downward trend in ozone 

concentrations is in part the result of a 

sustained effort to attain the NAAQS in 

the Denver area. The Denver area has 

seen a drop in ozone levels in the last 

10 years attributable in part to federal 

measures that have reduced mobile 

source emissions. In addition, Colorado 

adopted an Ozone Action Plan in 

December 2008 that included additional 

reductions in emissions of ozone 

precursors (NOX and VOCs), that will 

further aid the area in maintaining 

attainment. Given these facts, EPA 

concludes that the monitored 

attainment of the 1997 8-hour ozone 

NAAQS in the Denver area is likely to 

continue. 

Comment No. 10—The commenter 

also disputed the EPA statement in the 

proposal that it is ‘‘unlikely that Denver 

will be in nonattainment at the end of 

the 2010 ozone season,’’ and questioned 

why EPA did not cite or include any 

actual model data to support this 

assertion. The commenter specifically 

took issue with EPA’s reference to the 

‘‘2010 ozone season’’ in the proposal 

because section 110(a)(2)(D) would 

prohibit significant contribution to 

nonattainment at all times, not simply 

during the ‘‘2010 ozone season.’’ 

EPA Response—As discussed above, 

EPA believes the monitoring data 

adequately demonstrates that the 

Denver area is attaining the standard 

and is likely to continue to do so. The 

commenter is correct that EPA did not 

cite modeling that showed that Denver 

would be in attainment in 2010 in the 

proposal. We are aware, however, of the 

photochemical modeling for Denver 

completed as part of the ‘‘Ozone Action 

Plan’’ adopted by Colorado in December 

2008.26 This plan included the benefits 

of federal measures and fleet turnover 

and additional local NOX and VOC 

reductions. The plan also included 

photochemical modeling that indicated 

all monitors in the area would be in 

attainment of the 1997 8-hour ozone 

NAAQS in 2010. The modeling results 

supplement the monitoring results 

discussed previously indicating the area 

is in attainment and will be in 

attainment in 2010. 

Further, EPA believes that the 

commenter is mistakenly assuming that 

EPA’s reference to the ‘‘2010 ozone 

season’’ implied that section 110(a)(2)(D) 

would not require the elimination of 

emissions from sources in an upwind 

state that significantly contributed to 

violations of a NAAQS at any time of 

the year. In the case of the 1997 8-hour 

ozone NAAQS, however, it is a fact that 

there is an ‘‘ozone season’’ in many 

places across the county. Higher ozone 

concentration levels typically occur 

during the warmer, sunnier portions of 

the year, especially the summer. Like 

most areas, Denver has an ozone season. 

Therefore, it is not unreasonable for 

EPA to evaluate the likely impacts of 

data from monitors in this area during 

the ‘‘ozone season.’’ 

EPA also disagrees that an evaluation 

focused on impacts on 2010 levels is not 

adequate for purposes of section 

110(a)(2)(D). As further discussed 

elsewhere in this notice, EPA’s 2006 

Guidance to states for section 

110(a)(2)(D) SIP submissions 

recommended that states might elect to 

evaluate the existence of, and extent of, 

significant contribution to 

nonattainment in other states by 

evaluating impacts as of an appropriate 

year (such as 2010) and in light of the 

cost of control to mitigate emissions that 

resulted in interstate transport. EPA 

itself in the context of the CAIR rule 

evaluated whether there would be such 

impacts in 2010. This year was a 

reasonable choice, because it correlated 

with the presumptive attainment dates 

for states with nonattainment areas. For 

example, in the case of the 1997 PM2.5

NAAQS, the applicable attainment date 

is as expeditiously as practicable, but 

not later than five years from the 

effective date of the designation, i.e., by 

2010. Because 2010 is a reasonable date 

for this analysis, given the purpose of 

section 110(a)(2)(D), and is consistent 

with EPA’s recommendations in the 

2006 Guidance, EPA concludes that the 

selection of this date for the analysis 

supporting the New Mexico submission 

was appropriate. The commenter did 

not suggest another date that would be 

more appropriate nor did they explain 

the basis for requiring a different year 

for this analysis. 

Comment No. 11—The commenter 

also asserted that EPA was wrong in 

stating that the Denver area had not 

experienced a 4th highest 8-hour ozone 

reading of 92 ppb in the last 15 years. 

The commenter claimed that the Denver 

metro area experienced a 4th highest 

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27Additional emission reductions have occurred 

as a result of 1-hour ozone and 8-hour ozone 

nonattainment area SIPs for Denver and other areas 

in the modeling domain (Dallas, Houston, etc.). The 

most recent SIP submitted indicated that all of the 

Denver area monitors would be in attainment in 

2010 with the 1997 8-hour ozone NAAQS. The 

Denver SIP also included an analysis of emission 

inventories in the Denver area that showed a net 

decrease in NOX and VOC emissions between 2006 

and 2010 (Ibid DOAP) despite the inclusion of 

growth in Oil and Gas emissions in the Denver area. 

(DOAP) 

28WRAP EDMS, http://vista.cira.colostate.edu/ 

TSS/EDMS.aspx. 

max of 95 ppb at the Roxborough Park 

monitor in Douglas County in 2005 and 

of 95 ppb at the Applewood monitor in 

Jefferson County in 1998 and in 2003. 

EPA Response—In response to this 

comment, EPA rechecked the data in the 

EPA’s Air Quality System (AQS) and 

believes the commenter was in error 

that a fourth highest maximum of 95 

ppb occurred at the Roxborough Park 

(also know as the Chatfield monitor) 

monitor in 2005. EPA’s AQS indicates a 

value of 84 ppb in 2005. However, 

EPA’s AQS does indicate that a 95 ppb 

4th high occurred in 2003 at the 

Roxborough Park monitor and this may 

be the date that the commenter 

intended. In any event, upon closer 

examination, EPA concludes that the 

commenter is correct that values above 

92 ppb have occurred in the Denver area 

in the last 15 years. 

EPA also notes that the current DVs 

(2007–2009) for these two monitors 

(Roxborough Park and Applewood) are 

77 ppb and 76 ppb, which is well below 

the 1997 8-hour ozone NAAQS. 

Furthermore, these monitors would 

have to have fourth high daily 

maximum 8-hour monitored values of 

104 and 111 ppb respectively in 2010 to 

have a 2008–2010 DV violating the 1997 

8-hour ozone NAAQS. The fourth high 

daily maximum value monitored the 

last 15 years in the Denver area was 95 

ppb which is significantly lower than 

the 104 or 111 ppb values that would 

have to be monitored for either of these 

two monitors to be violating the 1997 8- 

hour ozone NAAQS. 

Therefore, EPA believes that the 

commenter’s correction that there have 

been higher values (maximum of 95 ppb 

in the last 15 years) at monitors in the 

Denver area does not fundamentally 

affect EPA’s evaluation in this case. The 

higher values were not at the monitor 

that was the basis for the Denver area 

design value in the last several years. 

The monitor that has been the basis for 

the Denver area DV has been the Rocky 

Flats North monitor. Even though the 

commenter is correct that the area has 

monitored higher values at certain 

monitors in the past, these monitors are 

not the monitors that have in recent 

years determined whether the area will 

continue to monitor attainment because 

they have not recorded the highest 

design value in the area. The Rocky 

Flats North monitor has the highest 

2007–2009 Denver area DV of 82 ppb 

and is based upon fourth high values of 

90 ppb in 2007, 79 ppb in 2008, and 79 

ppb in 2009. This monitor would have 

to have a fourth high daily maximum of 

97 ppb in 2010 to result in a violation 

of the 1997 8-hour ozone NAAQS. 

Therefore, it does not change EPA’s 

conclusion that the Denver area 

continues to monitor attainment and 

therefore emissions from sources in 

New Mexico cannot be contributing 

significantly to violations of the 1997 8- 

hour ozone NAAQS in this area. 

Comment No. 12—The commenter 

also pointed to modeling data used by 

New Mexico that appears to contradict 

the conclusion that emissions from New 

Mexico do not contribute significantly 

to violations of the 1997 8-hour ozone 

NAAQS in Denver. The commenter 

argued that data available in New 

Mexico’s own technical support 

document that was part of EPA’s record 

(Docket No. EPA–R06–OAR–2007–0993) 

establish that emissions from New 

Mexico sources ‘‘often contributes 

greater than 2 parts per billion in ozone 

on days when exceedances of the 1997 

ozone NAAQS are recorded in Denver’’ 

and can contribute ‘‘more than 5% to 

Denver’s total ozone concentrations.’’ 

Finally, the commenter argued that New 

Mexico wrongly assumed that this 

amount of contribution was not relevant 

‘‘under the assumption that the region 

was not in nonattainment’’ when the 

area is currently designated 

nonattainment. 

EPA Response—EPA disagrees with 

the commenter’s conclusions drawn 

from the modeling. The modeling was 

conducted using an emissions inventory 

from 2002. Because emissions in the 

year 2010 are expected to be lower, EPA 

considers this modeling to be a 

conservative estimate of ozone levels in 

the future and of the impact of New 

Mexico’s emissions on other states. EPA 

believes that the modeling shows higher 

impacts than are actually occurring. The 

modeling utilized existing CENRAP 

modeling databases available at the time 

and the source apportionment 

evaluation was conducted using the 

2002 emission inventory databases. 

Because the available databases were for 

2002 and not 2010, EPA considers the 

results of the modeling conservative 

because significant emission reductions 

are expected to occur throughout the 

modeled area between 2002 and 2010 

(as a result of both federal and state 

measures, including fleet turnover 

impacts) that would result in lower 

ambient ozone levels and fewer 

exceedances of the 1997 8-hour ozone 

NAAQS throughout the modeling 

domain. 

Specifically, there are three elements 

in this analysis that EPA concludes lead 

to overestimation of the impacts of New 

Mexico sources and therefore make this 

modeling less reliable to determine that 

sources in New Mexico contribute 

significantly to violations of the 1997 8- 

hour NAAQS in Colorado (or any other 

state). These three elements that result 

from using a 2002 and not a 2010 

emission inventory are: (a) Additional 

emissions reductions in other states as 

a result of ozone nonattainment SIPs 

have been implemented that were not 

reflected in the 2002 emission 

inventory; 27 (b) additional emissions 

reductions as a result of federal 

measures (including On-road, Non-road, 

and the impacts of fleet turnover) 

throughout the modeling domain since 

2002; and (c) additional reductions from 

large stationary NOX sources and from 

mobile sources as a result of federal 

measures that have occurred in New 

Mexico since 2002. As a result of these 

differences in the emission inventory 

between 2002 and 2010, New Mexico’s 

Technical Support Document describing 

and evaluating the modeling indicated 

that the impacts for New Mexico’s 

emissions were considered conservative 

estimates and were expected to 

overstate the State’s contribution to 

areas in other states. EPA believes that 

these conservative assumptions make 

the modeling reliable for purposes of 

determining that there is not a 

significant contribution from sources in 

New Mexico to the other states, but less 

reliable for purposes of determining that 

there is such significant contribution. 

EPA believes that the modeling relied 

upon by the State is conservative 

because of the three emission elements 

discussed above and that this is further 

supported by studies referred to by the 

commenter. Other studies support the 

conclusion that the Denver area will be 

monitoring attainment in 2010 for the 

1997 8-hour ozone NAAQS, and 

therefore emissions from sources in 

New Mexico would not be contributing 

significantly to nonattainment in this 

area. Specifically, the WRAP model 

emission inventories for 2002 and 2018 

showed decreases nationally in ozone 

precursors (NOX and VOC.) 28 The 

UBAQS modeling report included 

emission inventory assessments 

between 2006 and 2012 that also 

showed decreases in New Mexico’s NOX

emissions for the part of New Mexico 

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29 ‘‘UINTA BASIN AIR QUALITY STUDY 

(UBAQS)’’, prepared by Environ for the 

Independent Petroleum Association of Mountain 

States (IPAMS), June 30, 2009. Tables 2–18 and 2– 

20. The UBAQS 12 km grid included parts of 

northwestern New Mexico (including parts of the 

San Juan basin) and the emission inventory data 

indicated that emissions of NOX from this area were 

going to decrease from 115,942 tpy in 2006 to 

95,867 tpy in 2012. 

30See: Final CAIR rule, 70 FR 25162, 25174 (‘‘As 

discussed in section III below, for 8-hour ozone, we 

reiterate the finding of the NOX SIP Call that NOX

emissions, and not VOC emissions, are of primary 

importance for interstate transport purposes.’’) 

that was in the 12 km modeling grid.29

Finally, the fact that Denver is 

monitoring attainment at this time is 

further indication that the 2002 

modeling was conservative because it 

predicted exceedances in Denver, while 

the 2010 monitoring data is showing 

attainment. 

Because the modeling was 

conservative and overstates the extent of 

contribution from sources in New 

Mexico to the Denver area, it is 

inappropriate to use the modeling as a 

definitive determination of New 

Mexico’s impacts on downwind areas. 

The modeling was designed to be 

conservative and as such only provides 

a clear indication of non impact on 

downwind nonattainment areas. 

Therefore, EPA disagrees that the 

modeling supports the conclusion of 

significant contribution from New 

Mexico sources to the Denver 

nonattainment area as the commenter 

indicated. The commenter is correct that 

the CENRAP based modeling with a 

2002 emission inventory showed 

impacts that were above 2 ppb and 

contribution levels that were above 5%, 

but due to the conservative nature of the 

2002 assessment, EPA does not 

conclude that it indicates that sources in 

New Mexico have a significant 

contribution to nonattainment in 

Denver. 

EPA also believes that NOX emissions 

in upwind states are the most relevant 

consideration for interstate transport of 

ozone. In the final CAIR rule, EPA 

concluded that NOX emissions were the 

primary pollutant to reduce in order to 

yield reductions in interstate transport 

of emissions that affect levels of ozone 

in the context of the 1997 8-hour ozone 

NAAQS.30 Recent photochemical 

modeling in the New Mexico and 

Colorado region further support this 

conclusion, and therefore we have thus 

focused on NOX emissions in the 

context of ozone in this action as well. 

As reflected in the New Mexico 

submission and the UBAQS modeling 

documentation, New Mexico has 

decreased emissions of NOX from 

several sources which would lessen 

New Mexico’s impact on ozone in areas 

outside of New Mexico. Therefore, the 

reductions in NOX emissions in New 

Mexico would decrease the impacts 

from New Mexico on Denver’s ambient 

ozone levels when transport conditions 

would occur that New Mexico’s 

emissions could impact the Denver area. 

A review of the UBAQS report indicates 

New Mexico’s NOX reductions are 

mostly from elevated point source 

reductions (i.e., from tall stationary 

source stacks). Elevated emissions 

would have the greatest chance to 

transport downwind, so these 

reductions are likely among the most 

effective at reducing long range 

transport impacts on ozone levels 

regionally. In any event, based on 

preliminary 2007–2009 data, Denver is 

attaining the 1997 8-hour ozone 

NAAQS. Therefore, New Mexico’s 

emissions cannot be considered as 

contributing significantly to 

nonattainment of those NAAQS in the 

Denver area 

In summary, the Denver area is 

monitoring attainment of the 1997 8- 

hour ozone NAAQS. The modeling 

submitted by the State to support its 

submission indicating impacts from 

sources in New Mexico on the Denver 

area is conservative, and probably 

overestimates both the ozone levels in 

Denver and any impacts from New 

Mexico’s emissions. There have been 

significant emission reductions in the 

modeled area, supporting the 

conclusion that the modeling based on 

2002 represents a conservative 

description of ozone levels and New 

Mexico’s impact on the Denver area and 

therefore should not be relied upon 

solely to draw a conclusion about the 

impact of emissions from New Mexico 

in the Denver area. Considering the 

modeling in conjunction with the 

expected emission reductions and the 

actual monitoring data in this area, EPA 

concludes that emissions from New 

Mexico are not contributing to 

nonattainment of the 1997 8-hour ozone 

NAAQS in the Denver area. 

Comment No. 13—The commenter 

argued that New Mexico and EPA 

inappropriately relied on analyses 

conducted in connection with CAIR to 

justify its conclusion that emissions 

from sources in New Mexico do not 

contribute significantly to 

nonattainment in downwind states with 

regards to the 1997 PM2.5 NAAQS. 

According to the commenter, neither of 

the modeling analyses EPA used during 

the development of the CAIR rule 

supports the conclusion. 

The commenter acknowledged that 

the REMSAD modeling that EPA used 

initially for CAIR in 2004 assessed 

emissions from New Mexico, but 

claimed that EPA eventually ‘‘rejected’’ 

this modeling and replaced it with 

analysis using the CMAQ model as a 

more ‘‘accurate’’ means of assessing 

PM2.5 impacts among states. The 

commenter did note that EPA explained 

in the final CAIR rule that it believed 

the REMSAD model ‘‘treats the key 

physical and chemical processes 

associated with secondary aerosol 

formation and transport,’’ but pointed to 

EPA‘s statement that the REMSAD 

model ‘‘does not have all the scientific 

refinements of CMAQ’’ and also to 

EPA’s use of the CMAQ modeling for 

the final CAIR rule instead of the 

REMSAD modeling. The commenter 

thus implied that the REMSAD 

modeling could have no relevance to 

whether emissions from New Mexico 

sources contribute significantly to 

nonattainment in other states for 

purposes of the 1997 PM2.5 NAAQS. 

Similarly, the commenter argued that 

the CMAQ modeling could not support 

the conclusion that New Mexico sources 

are not contributing significantly to 

violations of the NAAQS in other states. 

The commenter claimed that although 

New Mexico was included in the CMAQ 

PM2.5 modeling domain for CAIR, EPA 

did not specifically assess impacts from 

New Mexico to downwind States. The 

commenter acknowledged that EPA 

conducted state by state ‘‘zero out’’ 

modeling for 37 states, but claimed that 

because EPA had not conducted such a 

zero out modeling run for New Mexico, 

the CMAQ model runs do not support 

the proposed conclusion in this action. 

EPA Response—EPA disagrees with 

the commenter’s judgment that the 

technical analyses conducted in 

conjunction with CAIR do not provide 

technical support for the conclusion 

that New Mexico sources do not 

contribute significantly to violations of 

the 1997 PM2.5 NAAQS in any other 

state. EPA agrees that it progressively 

refined its analytical approach from the 

time of the proposed CAIR rule to the 

final CAIR rule, but it does not follow 

that the analyses done for CAIR are 

inappropriate for consideration in 

today’s action. EPA believes that the 

analyses conducted for CAIR in fact 

provide technical support to the 

conclusion that emissions from New 

Mexico sources do not contribute 

significantly to violations of these PM2.5

NAAQS in any other state. 

EPA conducted modeling in the CAIR 

proposal using REMSAD modeling. 

With respect to the REMSAD modeling, 

the commenter is correct that EPA 

specifically evaluated the impact of 

emissions from New Mexico on other 

states in the eastern half of the United 

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31See, Final CAIR rule 70 FR 25162, at 25174. 

32See, Final CAIR rule 70 FR 25162, at 25234. 

33 In this action, ‘‘CAIR Proposal’’ refers to the 

proposal rule published on January 30, 2004 in the 

Federal Register and entitled ‘‘Rule to Reduce 

Interstate Transport of Fine Particulate Matter and 

Ozone’’, Interstate Air Quality Rule, 69 FR 4566. 

34See, Final CAIR rule 70 FR 25162, at 25169: 

(‘‘Only two States in the western part of the U.S., 

California and Montana, have counties that 

exceeded the PM2.5 standards’’) and (‘‘Because 

interstate transport is not believed to be a 

significant contributor to exceedances of the PM2.5

standards in California or Montana, today’s final 

CAIR does not cover these States’’). 

35 Id. 

States. The modeling indicated a 0.03 

μg/m3 maximum impact from New 

Mexico’s emissions on downwind 

PM2.5 nonattainment areas in 2010, 

which was significantly lower than the 

0.15 μg/m3 value used as the threshold 

for significance in the proposed CAIR 

rule and the 0.20 μg/m3 value used in 

the final CAIR rule.31 In other words, 

EPA’s analysis indicated that the impact 

of emissions from New Mexico sources 

were only a small fraction of the initial 

threshold amount that EPA considered 

relevant as the first stage of the analysis 

to determine the existence of, and extent 

of, impact on other states. 

The commenter implied that EPA’s 

subsequent use of the CMAQ model for 

the final CAIR rule per se renders 

REMSAD invalid for purposes of today’s 

action. To support this assertion, the 

commenter overstated the potential 

limitations of the REMSAD model, a 

misimpression heightened by the way in 

which the commenter described EPA’s 

own stated position. The full statement 

by EPA in the final CAIR rule was: 32

‘‘However, even though REMSAD does not 

have all the scientific refinements of CMAQ, 

we believe that REMSAD treats the key 

physical and chemical processes associated 

with secondary aerosol formation and 

transport. Thus, we believe that the 

conclusions based on the proposal modeling 

using REMSAD are valid * * *’’ 

This was not a categorical dismissal of 

REMSAD modeling for all purposes; it 

was a recognition that REMSAD was 

reliable for certain purposes even 

though the subsequent CMAQ modeling 

was an improvement. During 

rulemaking, it is appropriate for EPA to 

make improvements and refinements to 

models and the associated databases. 

EPA responded to comments raising 

concerns about reliance on the REMSAD 

modeling results from the proposal 

package and determined that decisions 

and determinations based on the 

proposal REMSAD modeling were still 

valid in the final CAIR rule. 

With respect to the CMAQ modeling, 

New Mexico was not among the 37 

states for which it did specific ‘‘zero out’’ 

modeling runs. EPA disagrees, however, 

with the commenter’s extrapolation that 

this means EPA ‘‘did not assess’’ the 

impacts of emissions from New Mexico 

with respect to the 1997 PM2.5 NAAQS 

in the final CAIR rule. To the contrary, 

EPA’s evaluation of New Mexico with 

REMSAD was part of the analysis for the 

proposed CAIR rule and EPA did not 

reject the results of the REMSAD 

modeling in the final CAIR rule.33 The 

lack of significant impact on 

nonattainment from New Mexico and 

other Western States shown by the 

REMSAD modeling in the proposal 

helped influence the more refined 

modeling analysis in the CAIR final rule 

which focused only on the Eastern 

States. 

In considering this comment, EPA has 

looked again at the use of the REMSAD 

modeling for the CAIR proposal for 

assessing New Mexico’s impacts on 

other States. We continue to believe that 

the REMSAD results are sufficient to 

make a determination of no significant 

contribution to nonattainment of the 

1997 PM2.5 NAAQS in other states 

because of the very small impacts that 

were estimated from emissions from 

New Mexico sources. The REMSAD 

modeling had indicated that New 

Mexico’s impacts on downwind 2010 

PM2.5 nonattainment areas was only 

15% of the significance level used in the 

final CAIR rule. Because the REMSAD 

modeling indicated values of only 15% 

of the final significance level, EPA did 

not consider the differences between the 

two modeling platforms (REMSAD and 

CMAQ) to be significant enough to lead 

to further analysis using CMAQ based 

modeling. EPA has determined in this 

action that the results from the 

REMSAD based modeling continue to 

support the conclusion that emissions 

from New Mexico sources are not 

contributing significantly to violations 

of the 1997 PM2.5 NAAQS in other 

states. The commenter did not articulate 

any way in which the distinctions 

between REMSAD and CMAQ would 

result in at least a seven-fold increase in 

the estimated impacts of emissions from 

New Mexico emissions on another 

state’s 1997 PM2.5 nonattainment area. 

EPA does not believe that such a 

divergence would be likely. 

Comment No. 14—The commenter 

argued that it is also inappropriate for 

EPA to rely on the CAIR modeling 

because the 2004 REMSAD model did 

not include other western states 

(including Arizona, California, Nevada, 

Utah, Idaho, Oregon, and Washington). 

The commenter asserted that EPA never 

assessed the impacts of emissions from 

New Mexico to these western states in 

the CAIR modeling and that this is 

problematic because there are PM2.5

nonattainment areas in California and in 

Utah. Although not clear, the 

commenter apparently argues that the 

existence of designated PM2.5

nonattainment areas in California and 

Utah renders the CAIR modeling 

irrelevant. More specifically, the 

commenter argues that because EPA has 

recently designated certain counties in 

the Salt Lake City area and Cache 

County, Utah as nonattainment for the 

2006 PM2.5 NAAQS, EPA was obligated 

to assess and limit downwind impacts 

accordingly in accordance with Section 

110(l) of the Clean Air Act. 

EPA Response—EPA disagrees with 

the commenter on this issue. First, this 

rulemaking addresses the potential 

impacts of emissions from New Mexico 

sources on other states with violations 

of the 1997 PM2.5 NAAQS, not the 2006 

PM2.5 NAAQS. Therefore, EPA’s 

assessment of New Mexico’s SIP was 

based on potential impacts on areas 

violating the 1997 PM2.5 NAAQS (15 μg/ 

m3 annual and 65 μg/m3 24-hour 

standard). The application of section 

110(a)(2)(D) to the 2006 PM2.5 NAAQS, 

or other NAAQS, will be addressed in 

later actions that pertain to those 

NAAQS. 

Second, EPA believes that the 

analysis conducted in conjunction with 

CAIR is both relevant and very 

probative in evaluating the presence of, 

and extent of, interstate transport from 

New Mexico sources to other states in 

this action. The CAIR modeling and 

analysis specifically evaluated impacts 

on areas that were violating the 1997 

PM2.5 NAAQS. The other western states 

identified by the commenter were in the 

CAIR modeling domain but were not 

evaluated further in the CAIR rule 

because, with the exception of 

California and Montana, these states 

were in attainment of the 1997 PM2.5

NAAQS.34 Absent areas with violations 

of those NAAQS, there could be no 

significant contribution to violations of 

the 1997 PM2.5 NAAQS. With regard to 

California and Montana, EPA indicated 

in the CAIR rule that interstate transport 

impacts were not a significant 

contributor to these areas, therefore 

impacts from New Mexico sources to 

California were not likely.35

Finally, even aside from the CAIR 

analysis, EPA does not believe that 

emissions from New Mexico sources 

contribute significantly to violations of 

the 1997 PM2.5 NAAQS in California. 

The areas of California with violations 

of the 1997 PM2.5 NAAQS are generally 

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36EPA reached this same conclusion in the CAIR 

rule. See, Final CAIR rule 70 FR 25162, at 25169. 

located far to the west, hundreds of 

miles from New Mexico sources, across 

large expanses of mountain ranges that 

would impede transport, and generally 

upwind from New Mexico. EPA believes 

that the predominant meteorological 

conditions would carry New Mexico 

emissions to the east, north, or south but 

not generally to the west. As a result, 

EPA concludes that it is very unlikely 

that New Mexico’s emissions transport 

hundreds of miles to the west to the 

1997 PM2.5 NAAQS in California.36 The 

CAIR modeling only addressed areas 

that were expected to be in 

nonattainment in 2010, based on 

existing monitoring data at the time and 

2010 photochemical modeling. Other 

than California, none of the other states 

mentioned by the commenter were 

monitoring nonattainment, or 

designated nonattainment for the 1997 

PM2.5 standards, at the time these 

analyses were conducted. 

Although not cited by the commenter, 

EPA notes that there has been one 

monitored violation of the 1997 PM2.5

annual NAAQS in Utah. It occurred in 

2002–2004 time period at a single 

monitor in the Salt Lake City area. This 

violation has not continued. In this 

instance, the state concluded that the 

monitor was heavily impacted by a 

nearby source. After the state instituted 

controls at the source, the design value 

has dropped to less than 45 μg/m3 in the 

last four years. EPA notes that the 

impact of a nearby source does not in 

and of itself negate the possibility of 

impacts of interstate transport at that 

monitor as well. However, because that 

monitor has not subsequently shown 

any violation of the 1997 PM2.5 NAAQS, 

EPA concludes that there are no areas in 

Utah with violations of that NAAQS to 

which New Mexico sources could be 

contributing significantly. All other 

PM2.5 monitors in the area have 

consistently had DVs below 55 μg/m3

since the 2001–2003 DV period. 

Comment No. 15—The commenter 

also criticized modeling that the state 

and EPA relied upon because of 

concerns about the accuracy of the 

underlying emissions inventories on 

which the models relied. In particular, 

the commenter claimed that the 

modeling fails to address recent growth 

in emission inventories for oil and gas 

operations in New Mexico that have 

been raising the emissions from the state 

higher than have been previously 

reported in emissions inventories. 

The commenter argued that these 

increases in emissions at least call into 

question the accuracy of the modeling 

relied upon by EPA to support the 

proposed approval of the State’s 

submission, and at worst demonstrate 

that EPA has failed to address a key 

aspect of contribution to nonattainment 

in downwind states from New Mexico 

sources. 

The commenter listed several recent 

reports that estimated increased 

emissions of SO2, NOX, and VOCs that 

result from the growth of oil and gas 

exploration in certain areas in New 

Mexico. The more recent studies cited 

by the commenter were: 

• The November 25, 2009 inventory 

of 2006 oil and gas emissions in the San 

Juan Basin of New Mexico, which 

includes San Juan, Rio Arriba, 

McKinley, and Sandoval Counties, 

prepared by the Independent Petroleum 

Association of the Mountain States 

(‘‘IPAMS’’). This inventory found that oil 

and gas point and area sources within 

this region annually released 42,075 

tons of NOX, 60,697 tons of volatile 

organic compounds (‘‘VOCs’’) and 305 

tons of sulfur dioxide (‘‘SO2’’).; 

• The August 2009 report on 2005 

emissions in the Four Corners region of 

northwestern New Mexico, which found 

that oil and gas point and area sources 

within the region annually released 

57,682 tons of NOX, 668 tons of SO2, 

and 117,370 tons of VOCs. The report 

indicates that by 2018, these emissions 

will increase to 65,543 tons of NOX, 670 

tons of SO2, and 143,050 tons of VOCs; 

and 

• The 2007 WRAP Phase II Inventory 

of 2002 oil and gas emissions, which 

found that oil and gas activities 

throughout New Mexico released 

112,540 tons of NOX and 13,925 tons of 

SO2, and that by 2018 would release 

110,034 tons of NOX and 13,002 tons of 

SO2 in the State. 

The commenter argued that without 

specifically addressing these more 

recent increases in the emissions 

associated with oil and gas 

development, New Mexico and EPA 

have no basis to conclude that the 

modeling relied upon in the proposed 

approval is accurate or ensures that 

emissions are not and will not 

significantly contribute to 

nonattainment in other states. The 

commenter also noted that the modeling 

prepared for CAIR utilized emission 

inventories from 2001, which would 

likewise fail to account for the more 

recent increase in emissions associated 

with oil and gas development. 

EPA Response—EPA shares the 

commenter’s concern with emissions 

from oil and gas development, and 

agrees that dramatic increases in such 

emissions, and especially emissions 

from sources that are not appropriately 

controlled, have the potential to 

contribute significantly to violations of 

NAAQS in other states. However, EPA 

has investigated this issue in response 

to the commenter’s concerns in this 

action, and has concluded that the 

information currently available does not 

indicate that New Mexico’s emissions 

from oil and gas development are 

significantly contributing to violations 

of the 1997 8-hour ozone NAAQS and 

1997 PM2.5 NAAQS in other states. To 

reach this conclusion, EPA has used 

available information and extrapolated 

what the impacts of the additional 

emissions from oil and gas development 

would be in a worst case scenario, as 

part of evaluating how those increases 

would affect the modeling results and 

other information EPA relied upon in 

the proposal. 

EPA has to make regulatory decisions 

using the emissions inventories and 

analyses that are available at the time of 

the decision. These inventories are, of 

course, constantly being updated and 

refined. The CAIR modeling used a base 

year emission inventory from 2001 that 

EPA then projected to 2010, which was 

the timeframe that EPA used for the 

analysis of New Mexico’s impacts on 

areas in other states with monitors 

projected to have violations of the 1997 

PM2.5 NAAQS. The CENRAP modeling 

used a 2002 inventory to assess New 

Mexico’s ozone impacts on areas in 

other states with monitors projected to 

have violations of the 1997 8-hour 

ozone NAAQS. At the time this 

modeling was conducted, EPA believed 

that the emission estimates for oil and 

gas development were appropriate. 

The commenter cited studies that 

have been conducted more recently to 

refine estimates of current emissions 

and future projected emission levels 

from oil and gas development in areas 

of New Mexico. These more recent 

studies indicate that emissions from oil 

and gas development are likely much 

higher than those assumed in the 

models. Because the studies do not 

indicate the amount of emissions 

growth that has happened since the 

2001/2002 timeframe, however, it is 

difficult to determine the impact this 

presumed increase would have. 

Therefore, to evaluate this concern, 

below we consider a worst case estimate 

impact of oil and gas emissions on 

whether emissions from sources in New 

Mexico significantly contribute to 

nonattainment in other states. 

The reports cited by the commenter 

indicate that emissions from all oil and 

gas development in New Mexico in the 

years from 2002–2006 have a range of 

up to 112,540 tpy of NOX, 117,370 tpy 

of VOC, and 13,925 tpy of SO2. In 

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37WRAP EDMS, CENRAP TSD. 

38CAIR Proposal TSD. 

comparison, the modeling conducted 

using the 2002 CENRAP emission 

inventory databases included emissions 

from all sources in New Mexico with 

totals of 306,194 tpy of NOX, 1,749,081 

tpy of VOC and 100,174 tpy of SO2.37

The modeling conducted for CAIR 

included an inventory from all sources 

of 242,782 tpy of NOX and 173,724 tpy 

of SO2 for the 2010 base level emissions 

for sources in New Mexico.38 These 

emissions inventories used for the 

CENRAP modeling and the CAIR 

modeling did include some emissions 

from oil and gas development activities 

in New Mexico, so EPA believes that 

some portion of emissions attributed to 

such sources in the more recent studies 

were included in statewide emission 

inventories from all sources and thus in 

the CENRAP and CAIR modeling. 

It would be very difficult to ascertain 

the exact amount of emissions from oil 

and gas sources that were included in 

the emission inventories for these two 

modeling evaluations and thus to 

ascertain the exact amount that the 

inventories used for the modeling 

exercises underestimate such emissions. 

Therefore, to evaluate how much the 

additional emissions from oil and gas 

development could impact the 

determination, we have used a worst 

case estimate of how much higher the 

emissions in New Mexico could be, 

based on the studies provided by the 

commenter. If one uses the highest NOX

value from these reports of 112, 540 tpy 

and compare that with the 306,194 tpy 

of NOX (from the CENRAP based 

modeling), the percentage increase in 

NOX emissions would be a 36% 

increase in NOX emissions over the 

modeled emissions. Similarly, if one 

compares the highest SO2 value from 

the reports (using 13,925 tpy from the 

reports and 100,174 tpy from the 

CENRAP based modeling) the 

percentage increase in SO2 emissions 

would be less than a 8% increase in SO2

emissions over the modeled emissions. 

EPA believes that these are worst case 

scenario increases, because they include 

the highest estimate of oil and gas 

development emission from the reports 

supplied by the commenter, but they 

probably overestimate the true increase 

over the inventories used for the 

modeling, and double count the 

emissions of oil and gas that were in the 

original modeling. 

EPA notes that these estimates also do 

not include the significant reductions 

that have occurred in New Mexico from 

non oil and gas sectors, such as federal 

motor vehicle controls and fleet turn 

over and controls on SO2 and NOX

emissions installed on large stationary 

sources including the San Juan 

Generating Station. In addition, 

emissions in other parts of the modeling 

domain outside of New Mexico would 

be expected to have decreased after 

2002 due to federal and state controls 

including fleet turnover and would not 

have been included in the CENRAP 

based modeling for ozone and only 

partially included in the CAIR 

modeling. 

EPA relied on photochemical 

modeling conducted for CAIR for the 

PM2.5 analysis in determining that New 

Mexico’s emissions do not make a 

significant contribution in areas in other 

states with monitors showing violations 

of the 1997 PM2.5 NAAQS. As discussed 

elsewhere in this notice, the modeling 

indicated that the largest impact from 

New Mexico’s emissions on any such 

monitor in another state was only 15% 

of the significance level used in the final 

CAIR rule. In the worst case estimate 

above, NOX emissions could at most be 

36% higher and SO2 could be at most 

8% higher than was modeled in CAIR. 

Although the impact on the model 

would not necessarily be linear, EPA 

does not believe that such a relatively 

small increase in total SO2 and NOX

emissions would increase the impact of 

New Mexico emissions by the more than 

7 fold necessary to reach the 

significance level EPA used in CAIR for 

the 1997 PM2.5 NAAQS. 

EPA relied on photochemical 

modeling based on 2002 emission 

inventories (available from CENRAP’s 

efforts) in determining that New 

Mexico’s emissions do not make a 

significant contribution in areas in other 

states with monitors showing violations 

of the 1997 8-hour ozone NAAQS. EPA 

relied on this modeling to evaluate the 

possible contribution from New Mexico 

sources to areas that were monitoring 

violations of the 1997 8-hour NAAQS. 

EPA considers the modeling 

conservative in that it used 2002 

inventories, and for the entire modeling 

grid (which covered most of the 

continental U.S. and parts of Canada 

and Mexico), and it did not include the 

benefits from emission reductions after 

2002 from federal and state 

requirements including fleet turnover. 

The modeling did not indicate values 

that were close to the significance levels 

for New Mexico’s impacts on out of 

state areas which were nonattainment 

and/or monitoring nonattainment of the 

1997 8-hour ozone NAAQS. The area 

monitoring nonattainment with the 

highest modeled impact from sources in 

New Mexico was the Dallas/Fort Worth 

Area. The modeled daily average 

contribution from sources in New 

Mexico was 0.4% with a contribution 

average of 0.4 ppb. EPA’s screening 

criteria for the first step of the analysis 

for any significant contribution, 

established in CAIR and upheld by the 

court, were 1% and 2 ppb respectively. 

EPA believes that even a conservative 

estimate of a 36% increase in NOX

emissions from New Mexico’s sources 

would not more than double New 

Mexico’s impact on other states, even 

before considering the other offsetting 

NOX emission reductions between 2002 

and 2010 from other source categories. 

Therefore, EPA concludes that these 

new emission estimates would not 

result in significant enough changes in 

impacts from New Mexico’s sources to 

change the determination that emissions 

from sources in New Mexico do not 

significantly contribute to violations of 

the 1997 8-hour ozone NAAQS in other 

states, based on available information. 

Accordingly, New Mexico does not need 

to amend its SIP substantively to reduce 

any additional emissions to prevent 

such impacts on other states. 

Finally, EPA notes that 

photochemical modeling is a very 

detailed and complicated process and 

there are continual refinements in 

emission inventories and other 

modeling databases. Unfortunately, the 

statutory and regulatory requirements, 

and especially the timing requirements, 

for developing and evaluating SIPs do 

not allow for time or resources to do 

every possible refinement to emission 

inventories on a continual basis. In this 

specific case, EPA agrees that the 

sudden expansion of oil and gas 

development and the emissions 

increases from such activities are a 

source category for which emissions 

inventories need updating, to insure 

that future regulatory actions by both 

states and EPA continue to be based 

upon the most recent and accurate 

information available 

EPA is concerned with the growth in 

emissions from oil and gas development 

in New Mexico and other areas of the 

country, including other states in 

Region 6. On May 10, 2010, EPA Region 

6 held a meeting with the principal oil 

and gas producers, trade organizations, 

and the five States in the Region, with 

the goal of finding ways to improve the 

emission inventory for these sources. 

Region 6 has initiated this process 

because a clearer understanding of these 

emissions will be necessary for future 

air quality plans under the new revised 

standards. 

Comment No. 16—The commenter 

also objected to EPA’s proposed 

approval because ‘‘New Mexico’s SIP, as 

written, simply does not contain any 

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39 63 FR 57356, October 27, 1998 

40See 2005 CAIR Rule (70 FR 25162) and 1998 

NOX SIP Call (63 FR 57356). 

language that prohibits emissions that 

contribute significantly to 

nonattainment in any other state.’’ The 

commenter also noted that EPA did not 

assess whether the SIP does or does not 

contain such provisions. The 

commenter appears to have argued that 

110(a)(2)(D)(i) requires a state SIP to 

contain an explicit provision literally 

prohibiting emissions that contribute 

significantly to nonattainment in any 

other state and that, in order to approve 

the New Mexico interstate transport SIP, 

EPA must examine the SIP to determine 

whether it contains such an explicit 

prohibition. 

EPA Response—EPA disagrees with 

the commenter’s interpretation of the 

statutory requirements. Section 

110(a)(2)(D)(i) has no language that 

requires a SIP to contain a specific 

provision literally prohibiting 

significant contribution to 

nonattainment in any other state or, for 

that matter, to contain any particular 

words or generic prohibitions. Instead, 

EPA believes that the statute requires a 

state’s SIP to contain substantive 

emission limits or other provisions that 

in fact ensure that sources located 

within the state will not produce 

emissions that have such an effect in 

other states. Therefore, EPA believes 

that satisfaction of the ‘‘significant 

contribution’’ requirement is not to be 

demonstrated through a literal 

requirement for a prohibition of the type 

advocated by the commenter. 

EPA’s past application of section 

110(a)(2)(D) did not require the literal 

prohibition advocated by the 

commenter. For example, in the 1998 

NOX SIP Call. 39 EPA indicated that ‘‘the 

term ‘prohibit’ means that SIPs must 

eliminate those amounts of emissions 

determined to contribute significantly to 

nonattainment * * *.’’ As a result, the 

first step of the process to determine 

whether this statutory requirement is 

satisfied is the factual determination of 

whether emissions from sources in the 

State contribute significantly to 

nonattainment in downwind areas.40 If 

this factual finding is in the negative, as 

is the case for EPA’s assessment of the 

contribution from emissions from 

sources in New Mexico, then section 

110(a)(2)(D)(i)(I) does not require any 

changes to the State’s SIP. If, however, 

the evaluation reveals that there is such 

a significant contribution to 

nonattainment in other States, then EPA 

requires the State to adopt substantive 

provisions to eliminate those emissions. 

The state could achieve these reductions 

through traditional command and 

control programs, or at its own election, 

through participation in another 

mechanism such as the cap and trade 

program of the NOX SIP Call. Thus, 

EPA’s approach in this action is 

consistent with the Agency’s 

interpretation of 110(a)(2)(D)(i) in the 

2006 guidance, the CAIR Rule, and the 

NOX SIP Call, none of which required 

the pro forma literal ‘‘prohibition’’ of the 

type advocated by the commenter. 

Comment No. 17—The commenter 

noted a specific provision for stationary 

source permitting in the New Mexico 

SIP that the commenter argued is 

inadequate to ensure that sources in 

New Mexico will not significantly 

contribute to nonattainment in other 

States. According to the commenter, 

New Mexico has a regulatory provision 

that requires the State agency to deny an 

application for a permit or permit 

revision for a stationary source under 

certain circumstances, including the 

violation of any NAAQS. The 

commenter claimed that New Mexico 

interprets this authority to allow the 

denial of such a permit, only if the 

source is physically located in a 

designated nonattainment area. 

EPA Response—EPA disagrees with 

the commenter’s characterization of the 

State’s regulations that New Mexico can 

only deny a permit for new or modified 

sources located in a designated 

nonattainment area. EPA has reviewed 

the New Mexico permitting provisions 

cited by the commenter. Section 

20.2.72.208 NMAC contains the reasons 

the department must deny a permit. 

Section 20.2.72.208 D explicitly 

provides that one of the reasons the 

State will deny a permit is if ‘‘the 

construction, modification, or permit 

revision will cause or contribute to air 

contaminant levels in excess of any 

National Ambient Air Quality Standard 

or New Mexico Ambient Air Quality 

Standard unless the ambient air impact 

is offset by meeting the requirements of 

either 20.2.79 NMAC or 20.2.72.216 

NMAC, whichever is applicable.’’ 

Section 20.2.79 NMAC and 20.2.72.216 

NMAC apply in nonattainment areas 

which have more stringent requirements 

than attainment areas. 

EPA believes that the provisions of 

Section 20.2.72.208 NMAC apply in 

attainment areas of the State and are 

unambiguous. The State’s regulations 

provide that it ‘‘shall deny’’ a permit for 

a source located in an attainment area, 

if that new or modified source would 

cause or contribute to air contaminant 

levels that exceed any NAAQS, whether 

those violations occur in New Mexico or 

elsewhere. To verify this understanding 

of the State’s regulations, EPA contacted 

NMED regarding this comment. NMED 

responded with an E-mail that is 

included in the docket for this 

rulemaking confirming that the 

provisions of 20.2.72.208 NMAC apply 

in the attainment areas of the State and 

provide for denial of permits if the 

construction, modification or revision 

will cause or contribute to levels in 

excess of the NAAQS. 

Comment No. 18—The commenter 

argued that EPA cannot approve the 

section 110(a)(2)(D) submission from 

New Mexico because the State and EPA 

did not comply with the requirements of 

section 110(l). Evidently, the commenter 

believes that the section 110(a)(2)(D) 

submission for the 1997 8-hour ozone 

and 1997 PM2.5 NAAQS is a revision to 

the SIP that will interfere with 

attainment of the 2006 PM2.5 NAAQS 

and the 2008 ozone NAAQS. The 

commenter argued that a section 110(l) 

analysis must consider all NAAQS once 

they are promulgated, and argued that 

EPA recently took the same position in 

proposing to disapprove a PM10

maintenance plan. 

EPA Response—EPA agrees that a 

required section 110(l) analysis must 

consider the potential impact of a 

proposed SIP revision on attainment 

and maintenance of all NAAQS that are 

in effect and impacted by a given SIP 

revision. However, EPA disagrees that it 

failed to comply with the requirements 

of section 110(l) in this action or that 

section 110(l) requires disapproval of 

the SIP submission at issue here. 

Section 110(l) provides in part that: 

‘‘the Administrator shall not approve a 

revision of a plan if the revision would 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress * * *, or 

any other applicable requirement of this 

chapter.’’ EPA has consistently 

interpreted Section 110(l) as not 

requiring a new attainment 

demonstration for every SIP submission. 

EPA has further concluded that 

preservation of the status quo air quality 

during the time new attainment 

demonstrations are being prepared will 

prevent interference with the States’ 

obligations to develop timely attainment 

demonstrations. 70 FR 58,199, 58,134 

(Oct. 5. 2005); 70 FR 17.029, 17,033 

(Apr. 4, 2005); 70 FR 53, 57 (Jan. 3, 

2005); 70 FR 28,429, 28,431 (May 18, 

2005). 

New Mexico’s submission is the 

initial submission by the State to 

address the significant contribution to 

nonattainment element of 110(a)(2)(D)(i) 

for the 1997 8-hour ozone and 1997 

PM2.5 NAAQS. This submission does 

not revise or remove any existing 

emissions limit for any NAAQS, or 

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41See, Completeness Findings for Section 

110(a)(2) State Implementation Plans for the 8-hour 

Ozone NAAQS, 73 FR 16,205 (March 28, 2008). 

42 ‘‘Guidance for State Implementation Plan (SIP) 

Submission to Meet Current Outstanding 

Obligations Under Section 110(a)(2)(D)(i) for the 8- 

Hour Ozone and PM2.5 National Ambient Air 

Quality Standards’’ August 15, 2006. 43 Id, at pages 6–8. 

change any other existing substantive 

SIP provisions relevant to the 1997 8- 

hour ozone or 1997 PM2.5 NAAQS or 

any other NAAQS. Simply put, it does 

not make any substantive revision that 

could result in any change in emissions. 

As a result, the submission does not 

relax any existing requirements or alter 

the status quo air quality. Therefore, 

approval of the submission will not 

interfere with attainment or 

maintenance of any NAAQS. 

EPA’s discussion in the notice cited 

by the commenter concerning a PM10 

maintenance plan in another state is 

consistent with this interpretation. In 

the cited action, EPA noted that: ‘‘Utah 

had either removed or altered a number 

of stationary source requirements,’’ 

creating the possibility of a relaxation of 

existing EPA approved SIP requirements 

and thereby interfering with attainment, 

a possibility that is not present here. See 

74 FR 62727 (Dec. 1, 2009). Thus, the 

action cited by the commenter is clearly 

distinguishable. 

The commenter did not provide any 

specific basis for concluding that 

approval of this SIP submission would 

interfere with attainment or 

maintenance of any NAAQS, or with 

any other applicable requirement of the 

Clean Air Act. EPA concludes that 

approval of the submission will not 

make the status quo air quality worse, 

and is in fact consistent with the 

development of an overall plan capable 

of meeting the Act’s attainment 

requirements. In particular, EPA has 

determined that the submission 

complies with the requirements of 

section 110(a)(2)(D)(i). Accordingly, 

assuming that section 110(l) applies to 

this SIP submission, EPA finds that 

approval of the submission is consistent 

with the requirements of section 110(l). 

Comment No. 19—In a separate 

comment letter, the commenter 

expressed concern with EPA’s proposed 

approval of the State’s submission for 

the 1997 8-hour ozone NAAQS and 

1997 PM2.5 NAAQS because the state 

‘‘does not appropriately limit ozone’’ in 

its PSD permitting program. To support 

this claim, the commenter noted that 

EPA has previously made a ‘‘finding of 

failure to submit’’ because New Mexico 

had not made another submission that 

would have the effect of making NOX a 

regulatory precursor for ozone in the 

context of PSD. According to the 

commenter, EPA should not approve the 

State’s submission for section 

110(a)(2)(D)(i)(I) for the significant 

contribution to nonattainment 

requirement because of this outstanding 

obligation with respect to the PSD 

requirements of the CAA for the 1997 

8-hour ozone NAAQS. 

EPA Response—EPA acknowledges 

that it made the finding of failure to 

submit noted by the commenter.41

However, EPA disagrees with the 

commenter’s view of how that prior 

finding affects today’s specific action. 

First, the ‘‘finding of failure to submit’’ 

to which the commenter refers is not for 

a failure to make a submission with 

respect to section 110(a)(2)(D). In that 

prior action, EPA made a formal finding 

that the State had, at that time, not yet 

made a different SIP submission, 

necessary to comply with a separate 

requirements of section 110(a)(2)(C) and 

section 110(a)(2)(J). 

Second, EPA believes that the cited 

finding of failure to submit does not 

relate to the requirements of section 

110(a)(2)(D)(i)(I) with respect to 

significant contribution to 

nonattainment at issue in this action, 

but rather to the separate requirements 

of section 110(a)(2)(D)(i)(II) that SIPs 

include measures to prevent 

interference with measures required for 

‘‘prevention of significant deterioration.’’ 

EPA’s 2006 Guidance explained the 

Agency’s views of what the four 

separate and distinct elements of section 

110(a)(2)(D) require.42 EPA’s guidance 

made recommendations to States for 

making submissions to meet each of the 

separate requirements of section 

110(a)(2)(D) for the 1997 8-hour ozone 

standards and 1997 PM2.5 standards. 

Within the guidance, EPA 

recommended that States evaluate the 

existence of, and extent of, significant 

contribution to nonattainment in other 

States by various means, intended to 

consider relevant facts about such 

contribution to nonattainment. By 

contrast, EPA recommended that States 

meet the separate requirement that their 

SIPs contain measures to prevent 

interference with measures required to 

prevent significant deterioration of air 

quality in other States by different 

means. In particular, EPA explained that 

this latter element of section 

110(a)(2)(D) would be the correct 

context in which to confirm that the 

State in question had updated its own 

SIP to contain measures related to PSD. 

In the 2006 Guidance, EPA explicitly 

identified the regulatory requirements 

and separate SIP revision necessary to 

implement the PSD program for the 

1997 8-hour ozone NAAQS as among 

the requirements that EPA considered 

relevant to the prevention of significant 

deterioration requirements of section 

110(a)(2)(D).43 EPA stated its view that 

implementation of the PSD permitting 

program within the State would address 

the requirement to prohibit emissions 

that interfere with measures to prevent 

significant deterioration in neighboring 

States. EPA also explained that the 

permitting program for the 8-hour ozone 

NAAQS would require that new or 

modified sources will not cause or 

contribute to violations of the NAAQS 

in neighboring States, so that additional 

SIP submissions with rule changes or 

modeling demonstrations would not be 

required to establish that a State’s 

program complies with the requirement 

in section 110(a)(2)(D)(i)(II). In short, 

EPA believes that evaluation of a State’s 

SIP for compliance with section 

110(a)(2)(D)(i)(II) is the proper context 

in which to determine whether such SIP 

meets current federal PSD requirements. 

Today’s action does not address this 

element of section 110(a)(2)(D), and 

accordingly, the finding of failure to 

submit is not a basis not to approve the 

State’s submission for this purpose. 

Finally, EPA notes that the State of 

New Mexico has subsequently made a 

submission to comply with the rule that 

was the basis for the finding of failure 

to submit cited by the commenter. EPA 

is in the process of evaluating that 

submission and will act on it at a later 

date. EPA anticipates that it may elect 

to act upon that separate submission at 

the same time it acts upon the State’s 

section 110(a)(2)(D) submission for the 

prevention of significant deterioration 

requirement, as EPA has recently done 

in the case of the section 110(a)(2)(D) 

submission for the State of North 

Dakota. 

B. Comments From New Mexico 

Environment Department, Air Quality 

Bureau 

Comment No. 1—The commenter 

stated that while it did not object to 

EPA’s proposed approval of the 

‘‘contribute to nonattainment’’ prong of 

section 110(a)(2)(D)(i) of the CAA, it 

believed that EPA should have 

approved the SIP submission as meeting 

all prongs of that section. The 

commenter asserted its belief that New 

Mexico satisfied all requirements of 

section 110(a)(2)(D) for the 1997 8-hour 

ozone and 1997 PM2.5 NAAQS in its 

submission, following EPA’s 

recommendations in the 2006 Guidance 

for this SIP revision. 

EPA Response—We appreciate 

NMED’s comments. At this time, EPA is 

only taking action on the portions of the 

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State’s submission that pertain to the 

significant contribution to 

nonattainment requirements of section 

110(a)(2)(D) for the 1997 8-hour ozone 

and 1997 PM2.5 NAAQS. EPA will act 

on the remaining requirements of 

section 110(a)(2)(D) for these NAAQS at 

a later date. 

IV. Final Action 

We are approving one element of the 

Interstate Transport SIP submitted by 

the State of New Mexico on September 

17, 2007. Specifically, in this action we 

are approving the element that 

addresses the requirement of Section 

110(a)(2)(D)(i)(I) that emissions from 

sources in that State do not ‘‘contribute 

significantly’’ to violations of the 1997 8- 

hour ozone or 1997 PM2.5 NAAQS in 

any other State. After fully considering 

all comments received on the proposal 

and direct final rule EPA has concluded 

that the State’s submission, and 

additional evidence evaluated by EPA, 

establish that emissions from New 

Mexico sources do not contribute 

significantly to nonattainment of the 

relevant NAAQAS in any other State. 

Accordingly, New Mexico does not need 

to include additional emission 

limitations on its sources to eliminate 

any such contribution to other States for 

purposes of these NAAQS. 

At a later date, EPA will act on 

addressing the remaining requirements 

of section 110(a)(2)(D)(i) which are: 

interference with the maintenance of the 

NAAQS in any other state; interference 

with measures required to prevent 

significant deterioration of air quality in 

any other State; and interference with 

measures required to protect visibility 

in any other State. 

V. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• 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. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by August 10, 2010. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Particulate matter, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: May 28, 2010. 

Lawrence E. Starfield, 

Acting Regional Administrator, Region 6. 

■ 40 CFR Part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart GG—New Mexico 

■ 2. The second table in § 52.1620(e) 

entitled ‘‘EPA-Approved Nonregulatory 

Provisions and Quasi-Regulatory 

Measures in the New Mexico SIP’’ is 

amended by adding an entry to the end 

to read as follows: 

§ 52.1620 Identification of plan. 

* * * * * 

(e) * * * 

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33190 Federal Register / Vol. 75, No. 112 / Friday, June 11, 2010 / Rules and Regulations 

EPA-APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE NEW MEXICO SIP 

Name of SIP provision Applicable geographic or nonattainment area 

State submittal/effective 

date 

EPA approval date Explanation 

*******

Interstate transport for the 

1997 ozone and PM 2.5

NAAQS.

New Mexico ........................... 09/17/07 06/11/10 [insert FR page 

number where the document begins].

06/11/10 Approval for revisions to prohibit significant 

contribution to nonattainment in any other State. 

[FR Doc. 2010–13686 Filed 6–10–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2009–0278; FRL–8829–2] 

Trifloxystrobin; Pesticide Tolerances 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation increases 

existing tolerances for residues of 

trifloxystrobin in or on corn, field, 

forage; corn, sweet, forage; and corn, 

sweet, stover. Bayer CropScience 

requested these tolerances under the 

Federal Food, Drug, and Cosmetic Act 

(FFDCA). Additionally, EPA is 

removing several tolerances which have 

expired. 

DATES: This regulation is effective June 

11, 2010. Objections and requests for 

hearings must be received on or before 

August 10, 2010, and must be filed in 

accordance with the instructions 

provided in 40 CFR part 178 (see also 

Unit I.C. of the SUPPLEMENTARY

INFORMATION). 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2009–0278. All documents in the 

docket are listed in the docket index 

available at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available in the electronic docket at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Rm. S– 

4400, One Potomac Yard (South Bldg.), 

2777 S. Crystal Dr., Arlington, VA. The 

Docket Facility is open from 8:30 a.m. 

to 4 p.m., Monday through Friday, 

excluding legal holidays. The Docket 

Facility telephone number is (703) 305– 

5805. 

FOR FURTHER INFORMATION CONTACT: 

Tawanda Maignan, Registration 

Division (7505P), Office of Pesticide 

Programs, Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460–0001; telephone 

number: (703) 308-8050; e-mail address: 

maignan.tawanda@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this Action Apply to Me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. Potentially 

affected entities may include, but are 

not limited to those engaged in the 

following activities: 

• Crop production (NAICS code 111). 

• Animal production (NAICS code 

112). 

• Food manufacturing (NAICS code 

311). 

• Pesticide manufacturing (NAICS 

code 32532). 

This listing is not intended to be 

exhaustive, but rather to provide a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed under FOR FURTHER

INFORMATION CONTACT. 

B. How Can I Get Electronic Access to 

Other Related Information? 

You may access a frequently updated 

electronic version of EPA’s tolerance 

regulations at 40 CFR part 180 through 

the Government Printing Office’s e-CFR 

site at http://www.gpoaccess.gov/ecfr. 

To access the harmonized test 

guidelines referenced in this document 

electronically, please go http:// 

www.epa.gov/ocspp and select ‘‘Test 

Methods and Guidelines.’’ 

C. How Can I File an Objection or 

Hearing Request? 

Under FFDCA section 408(g), 21 

U.S.C. 346a, any person may file an 

objection to any aspect of this regulation 

and may also request a hearing on those 

objections. You must file your objection 

or request a hearing on this regulation 

in accordance with the instructions 

provided in 40 CFR part 178. To ensure 

proper receipt by EPA, you must 

identify docket ID number EPA–HQ– 

OPP–2009–0278 in the subject line on 

the first page of your submission. All 

objections and requests for a hearing 

must be in writing, and must be 

received by the Hearing Clerk on or 

before August 10, 2010. Addresses for 

mail and hand delivery of objections 

and hearing requests are provided in 40 

CFR 178.25(b). 

In addition to filing an objection or 

hearing request with the Hearing Clerk 

as described in 40 CFR part 178, please 

submit a copy of the filing that does not 

contain any CBI for inclusion in the 

public docket. Information not marked 

confidential pursuant to 40 CFR part 2 

may be disclosed publicly by EPA 

without prior notice. Submit a copy of 

your non-CBI objection or hearing 

request, identified by docket ID number 

EPA–HQ–OPP–2009–0278, by one of 

the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Mail: Office of Pesticide Programs 

(OPP) Regulatory Public Docket (7502P), 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001. 

• Delivery: OPP Regulatory Public 

Docket (7502P), Environmental 

Protection Agency, Rm. S–4400, One 

Potomac Yard (South Bldg.), 2777 S. 

Crystal Dr., Arlington, VA. Deliveries 

are only accepted during the Docket 

Facility’s normal hours of operation 

(8:30 a.m. to 4 p.m., Monday through 

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