ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

EPA-R06-0AR-2007-0993; FRL- -----'

Approval and Promulgation of Implementation Plans;

New Mexico; Interstate Transport of Pollution

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

State ofNew Mexico for the purpose of addressing the "good neighbor" provisions ofthe Clean

Air Act (CAA) section 11O(a)(2)(D)(i) for the 1997 ozone standards and the 1997 PM2.5

standards. This SIP revision satisfies a portion ofthe State ofNew Mexico's obligation to

submit a SIP revision 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 ofthe 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 significantly contributing to nonattainment ofthe ozone and PM2.5 NAAQS

in any state.

DATES: This direct final rule will be effective [Insert date 60 days from date of publication

in the Federal Register] without further notice unless EPA receives relevant adverse comments
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by [Insert date 30 days from date of publication in the Federal Register]. If adverse

comments are received, EPA will publish a timely withdrawal ofthe direct final rule in the

Federal Register informing the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-0AR-2007-0993,

by one ofthe following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov.

• Follow the online instructions for submitting comments.

• EPA Region 6 "Contact Us" Web site: http://epa.gov/region6/r6coment.htm. Please

click on "6PD (Multimedia)" and select "Air" before submitting comments.

• E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please also send a copy by

e-mail to the person listed in the FOR FURTHER INFORMATION CONTACT

section below.

• Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), at fax number 214-

665-7263.

• Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental

Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.

• Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L),

Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas

75202-2733. Such deliveries are accepted only between the hours of 8 a.m. and 4

p.m. weekdays, and not on legal holidays. Special arrangements should be made for

deliveries of boxed information.
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Instructions: Direct your comments to Docket No. EPA-R06-0AR-2007-0993. EPA's policy is

that all comments received will be included in the public docket without change and may be

made available online at www.regulations.gov, including any personal information provided,

unless the comment includes information claimed to be Confidential Business Information (CBI)

or other information whose disclosure is restricted by statute. Do not submit information that

you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The

www.regulations.gov web site is an "anonymous access" system, which means EPA will not

know your identity or contact information unless you provide it in the body of your comment. If

you send an e-mail comment directly to EPA without going through www.regulations.gov your

e-mail address will be automatically captured and included as part ofthe comment that is placed

in the public docket and made available on the Internet. If you submit an electronic comment,

EPA recommends that you include your name and other contact information in the body of your

comment and with any disk or CD~ROM you submit. If EPA cannot read your comment due to

technical difficulties and cannot contact you for clarification, EPA may not be able to consider

your comment. Electronic files should avoid the use ofspecial characters, any form of

encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although

listed in the index, some information is not publicly available, e.g., CBI or other information

whose disclosure is restricted by statute. Certain other material, such as copyrighted material,

will be publicly available only in hard copy. Publicly available docket materials are available

either electronically in www.regulations.gov or in hard copy at the Air Planning Section (6PDL), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

The file will be made available by appointment for public inspection in the Region 6 FOIA
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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 ofthe visit, please check in at the EPA

Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

The state submittal is also available for public inspection during official business hours, by

appointment, at the New Mexico Environment Department, Air Quality Bureau, 1190 St. Francis

Drive, Santa Fe, New Mexico 87502.

FOR FURTHER INFORMATION CONTACT: Emad Shahin, Air Planning Section (6PDL), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas

75202-2733, telephone (214) 665-6717; fax number (214) 665-7263; e-mail address

shahin.emad@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document wherever "we," "us," or

"our" is used, we mean the EPA.

OUTLINE:

1. What Action is EPA Taking?

II. What is a SIP?

III. What is the Background for this Action?

IV. What is EPA's Evaluation ofthe State's Submission?
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V. Final Action

VI. Statutory and Executive Order Reviews

I. What Action is EPA Taking?

We are approving a submission from the State of New Mexico demonstrating that New

Mexico has adequately addressed one ofthe required elements of the CAA section

110(a)(2)(D)(i), the element that prohibits air pollutant emissions from sources within a state

from significantly contributing to nonattainment ofthe relevant NAAQS in any other state. We

have determined that emissions from sources in New Mexico do not significantly contribute to

nonattainment ofthe 1997 ozone standards or ofthe 1997 PM2.5 standards in any other state.

The remaining three elements ofsection 11O(a)(2)(D) are SIPs addressing: (i) interference with

the maintenance ofthe NAAQS in any other state; (ii) interference with measures required to

prevent significant deterioration of air quality in any other state; and (iii) interference with

measures required to protect visibility in any other state. The aforementioned 3 elements will be

evaluated and addressed in future rulemakings.

EPA is publishing this rule without prior proposal because we view this as a

noncontroversial amendment and anticipate no adverse comments. However, in the proposed

rules section ofthis Federal Register publication, we are publishing a separate document that

will serve as the proposal to approve the SIP revision if adverse comments are received. This

rule will be effective on [FEDERAL REGISTER OFFICE: insert date 60 days from date of

publication in the Federal Register] without further notice unless we receive adverse comment

by [FEDERAL REGISTER OFFICE: insert date 30 days from date of publication in the

Federal Register). If we receive adverse comments, we will publish a timely withdrawal in the
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Federal Register informing the public that the rule will not take effect. We will address all

public comments in a subsequent final rule based on the proposed rule. We will not institute a

second comment period on this action. Any parties interested in commenting must do so at this

time. Please note that if we receive adverse comment on an amendment, paragraph, or section of

this rule and ifthat provision may be severed from the remainder ofthe rule, we may adopt as

final those provisions ofthe rule "that are not the subject of an adverse comment.

II. What is a SIP?

Section 11O(a) ofthe CAA requires each state to develop a plan that provides for

the implementation, maintenance, and enforcement ofthe national ambient air quality standards

(NAAQS). EPA establishes NAAQS under section 109 oftheCAA. Currently, the NAAQS

address six criteria pollutants: carbon monoxide, nitrogen dioxide, ozone, lead, particulate

matter, and sulfur dioxide.

The plan developed by a state is referred to as the state implementation plan (SIP).

The content ofthe SIP is specified in section 110 ofthe CAA, other provisions ofthe CAA, and

applicable regulations. SIPs can be extensive, containing state regulations or other enforceable

measures and various types ofsupporting information, such as emissions inventories, monitoring

networks, and modeling demonstrations.

A primary purpose ofthe SIP is to provide the air pollution regulations, control

strategies, and other means or techniques developed by the state to ensure that the ambient air

within that state meets the NAAQS. However, another important aspect ofthe SIP is to ensure

that emissions from within the state do not have certain prohibited impacts upon the ambient air

in other states through interstate transport of pollutants. This SIP requirement is specified in
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section 110(a)(2)(D). Pursuant to that provision, each state's SIP must contain provisions

adequate to prevent, among other things, emissions that significantly contribute to violations of

the NAAQS in any other state.

States are required to update or revise SIPs under certain circumstances. One such

circumstance is EPA's promulgation of a new or revised NAAQS. Each state must submit these

revisions to EPA for approval and incorporation into the federally-enforceable SIP.

III. What is the Background for this Action?

On July 18, 1997, EPA promulgated new standards for 8-hour ozone and fine particulate

matter (PM2.s). This action is being taken in response to the July 18, 1997 revision to the 8-hour

ozone standards and PM 2.5 standards. This action does not address the requirements for the

2006 PM2.5 standards or the 2008 8-hour ozone standards; those standards will be addressed in a

later action.

Section 110(a)(l) ofthe CAA requires states to submit SIPs to address a new or revised

NAAQS within 3 years after promulgation ofsuch standards, or within such shorter period as

EPA may prescribe. Section 11O(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 11O(a)(2)(D)(i) for the 8-

Hour Ozone and PM2.s National Ambient Air Quality Standards" ("Guidance") for SIP

submissions that states should use to address the requirements ofsection 110(a)(2)(D)(i). EPA

developed this guidance to make recommendations to states for making submissions to meet the
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requirements ofsection 110(a)(2)(D) for the 1997 8-hour ozone standards and 1997 PM2.5

standards.

On September 17,2007, we received a SIP revision from the State ofNew Mexico to

address the requirements ofsection 110(a)(2)(D)(i) for both the 1997 8-hour ozone standards and

1997 PM2.5 standards. This SIP submittal follows EPA's Guidance. As identified in the

Guidance, the "good neighbor" provisions in section 110(a)(2)(D)(i) require each State to submit

a SIP that prohibits emissions that adversely affect another state in the ways contemplated in the

statute. Section 110(a)(2)(D)(i) contains four distinct requirements related to the impacts of

interstate transport; however, 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 nonattainrnent ofthe 1997 8-hour ozone standards and 1997 PM2.5

standards in any other state. In its submission, the State ofNew Mexico indicated that its current

SIP is adequate to prevent such significant contribution to nonattainrnent in any other state, and

thus no additional emissions controls are necessary at this time to alleviate interstate transport.

IV. What is EPA's Evaluation of the State's Submission?

In accordance with EPA's Guidance, the State ofNew Mexico has made a SIP

submission addressing interstate transport for the 1997 8-hour ozone standards and 1997 PM2.5

standards. The State has made a showing that emissions from New Mexico do not significantly

contribute to violations of either NAAQS in other states by two different means. For PM2.~ the

State has relied primarily upon technical analysis performed by EPA in connection with another

regional rulemaking that addresses interstate transport. For ozone, the State has relied primarily

on additional modeling to address the extent ofinterstate transport. We believe that the
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submission adequately establishes that emissions from New Mexico do not significantly

contribute to violations of either NAAQS in other states, for the reasons explained below.

To support a determination of no "significant contribution" for the 1997 PM2.5 standards,

the state has relied on EPA's Clean Air Interstate Rule (CAIR)l analysis. This approach is

consistent with EPA's Guidance to states for this SIP submission. In CAIR, EPA evaluated

which states significantly contribute to violations ofthe 1997 8-hour ozone standards and 1997

PM2.5standards in other states. Based upon its analysis, EPA did not include New Mexico in the

CAIR region. In the CAIR preamble, EPA provided its rationale for the exclusion ofthe western

states, including New Mexico, from further consideration oftransport for 8-hour ozone and

PM2.5and the requirements ofCAIR.

The 'Technical Support Document for the Interstate Air Quality Rule Air Quality

Modeling Analysis", January 2004 (available at http://www.epa.gov/cair/technical.html) contains

documentation ofthe modeling used to support CAIR. This modeling included an analysis of

the maximum impact of emissions from States without CAIR controls applied on areas projected

in PM2.5 nonattainment in 2010. A maximum impact level of 0.15 ug/m" was considered

significant for this analysis (Note- in the final CAIR EPA changed the maximum impact level for

this significance test to 0.20 ug/nr'). EPA's modeling indicated that the maximum impact from

emissions from sources in New Mexico on any projected nonattainment area in another state was

0.03 ug/nr'. This value is 20% ofthe significant impact level that EPA used in the CAIR

proposal, and therefore EPA determined that emissions from the state ofNew Mexico do not

See, "Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule);

Revisions to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule," 70 FR 25162 (May 12,2005).

Information regarding CAA section 110(a)(2)(D) SIPs can be found beginning of page 25263.
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significantly contribute to pollutant levels in any area projected to be nonattainment ofthe

PM2.5 standard in that analysis.

CAIR was remanded by the U.S. Court of Appeals for the District ofColumbia, and

EPA is currently in the process of developing a replacement rule to address interstate transport

for the 1997 8-hour ozone and 1997 PM2.5 standards. We do not believe that the CAIR remand

affects New Mexico's reliance on EPA's CAIR analysis for the purpose of evaluating New

Mexico's PM 2.5 impacts on other states. Specifically, EPA's modeling was conducted without

including the impact of any CAIR controls, and thus the evaluation is not impacted by any

uncertainty in the implementation ofCAIR controls due to the remand. Also, despite remand of

the CAIR rules, EPA's reliance on the maximum impact level of 0.20 ug/nr' as the cutofffor the

inclusion of a state in the CAIR region was upheld by the court. Therefore, with respect to the

1997 PM2.5 standards, we believe that New Mexico's submission adequately establishes that

sources in that state are not significantly contributing to violations ofthat NAAQS in any other

state.

To support a determination of no "significant contribution" for the 8-hour ozone

NAAQS, New Mexico could not rely upon EPA's CAIR analysis because western states

including New Mexico were not included in the area modeled for ozone. Instead, New Mexico

provided an additional modeling analysis ofthe impact of emissions from the state on projected

8-hour ozone nonattainment in downwind states. We note that modeling is not necessarily

required to support this type of SIP submission, but this approach is consistent with EPA's

Guidance to states for this SIP submission.

The modeling relied upon by the state is described in greater detail in its technical

support document in the submission, and is available at www.regulations.gov, Docket No. EPA-
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R06-0AR-2007-0993. We note that EPA assisted the state with this analysis, including the

development ofthe modeling demonstration. In order to develop a model scenario that could

evaluate New Mexico's impacts, the state and EPA determined that it was appropriate to rely on

data developed by the Central Regional Air Planning Association (CENRAP). Modeling was

conducted using a 2002 third quarter CENRAP modeling dataset that included New Mexico in

the modeling domain. While a more recent dataset might be assumed to be more appropriate to

support this action, a 2010 dataset was not available from CENRAP. However, we believe that

the use ofthe 2002 dataset is adequate to evaluate the degree of contribution ofNew Mexico

emissions sources to violations ofthe 1997 8-hour ozone standards. Because the analysis is

based on year 2002 emissions, we believe it is a conservative estimate of potential transport

impacts in 2010, as New Mexico's emissions have been decreasing since 2002 due to various

recent federal control programs (including On-Road and Nonroad reductions). This trend is

confirmed by available 2005 inventory. In other words, if data from 2002 establish that there is

no significant contribution to violations ofthe 1997 8-hour ozone standards in other states, then

New Mexico sources would have even lower impacts currently and consequently no significant

contribution.

In the Guidance, we recommended a number of ways that states might elect to evaluate

whether or not there is significant contribution, and we suggested that states might consider

assessing the potential for contribution using assumptions similar to those used by EPA in CAIR.

The state's analysis considered three factors comparable to those used by EPA as screening

criteria in determining significance for states in CAIR: (a) the magnitude ofthe contribution, (b)

the frequency ofthe contribution, and (c) the relative amount of contribution. The additional

modeling yielded consistent results showing New Mexico emissions do not contribute
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significantly to 8-hour ozone nonattainment in any ofthe areas analyzed. New Mexico's highest

overall contribution to total nonattainment for any nonattainment area at the time ofthe

modeling was for DallaslFort Worth. New Mexico's highest impact on the DallaslFort Worth

area was a daily average contribution of 0.4%, with a contribution average of 0.4 ppb. By EPA's

own metrics (as established in CAIR and upheld by the court), these impacts are considered to be

small and infrequent and well below screening criteria established at 1% and 2 ppb, respectively.

Moreover, not a single metric ofthe three contribution factors was found to be above the

significance threshold established by EPA for any ofthe downwind counties. For more details

please see the document titled "Modeling Data and Report for New Mexico from EPA Regions 6

and 7" that is included in the docket materials for this action.

At the time the modeling was performed, Denver's air quality was meeting the standard.

(The 2004-2006 8-Hour Ozone Design Value (DV) was 81 ppb). Therefore the state did not

evaluate New Mexico's ozone impacts on Denver. Denver had a very high ozone season in 2007

that temporarily pushed the area into nonattainment. The preliminary 2007-2009 DV (awaiting

final data validation) is 82 ppb so the area appears to now be back in attainment. The preliminary

2007-2009 DV is based upon 4th High values of90 ppb in 2007, 79 ppb in 2008, and 79 ppb in

2009 (preliminary). With the last two 4th Highs of 79 ppb, Denver would have to monitor a 4th

High value of97 ppb in 2010 to go back into nonattainment for the period 2008-2010. Denver

has not had a 4th High value ofmore than 92 ppb in the last 15 years, so it is unlikely that

Denver will be in nonattainment at the end ofthe 2010 ozone season for the 84 ppb standard.

Since based on preliminary 2007-2009 data, Denver is attaining the standard, New Mexico's

emissions should not be considered as contributing to nonattainment in Denver.
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With respect to the 1997 8-hour ozone standards, we believe that New Mexico's

submission adequately establishes that sources in that state are not significantly contributing to

violations ofthat NAAQS in any other state. As noted previously, EPA will be acting on the

other elements of Section 110(a)(2)(D)(i) in separate rulemakings.

V. Final Action

We are approving revisions to the New Mexico SIP which adequately demonstrates that

air pollutant emissions from sources within New Mexico do not significantly to nonattainment of

the relevant NAAQAS on any other state.

Based on the information provided by NMED in the technical demonstration, it has

sufficiently been demonstrated that emissions from New Mexico do not significantly contribute

to downwind nonattainment. Thus, EPA concludes that the New Mexico SIP complies with

CAA section 110(a)(2)(D)(i)(I).

VI. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP

submission that complies with the provisions ofthe 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 ofthe 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 ofManagement

and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
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• does not impose an information collection burden under the provisions ofthe Paperwork

Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number ofsmall

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 (Public Law

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) ofthe National Technology Transfer and

Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose

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.
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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 ofthe

rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA

will submit a report containing this action and other required information to the U.S. Senate, the

U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to

publication ofthe 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) ofthe Clean Air Act, petitions for judicial review ofthis action

must be filed in the United States Court of Appeals for the appropriate circuit by [FEDERAL

REGISTER OFFICE: insert date 60 days from date of publication of this document in the

Federal Register]. Filing a petition for reconsideration by the Administrator ofthis final rule

does not affect the finality ofthis action for the purposes ofjudicial review nor does it extend the

time within which a petition for judicial review may be filed, and shall not postpone the

effectiveness ofsuch rule or action. This action may not be challenged later in proceedings to

enforce its requirements. (See section 307(b)(2).)
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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: Al Armendariz

Regional Administrator, Region 6
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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 etseq.

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) ***

EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico

SIP

I

State

Applicable geographic submittal/effective

Name of SIP provision or nonattainment area date EPA approval date Explanation

*** **** CAA 110(a)(2)(D)(i)(I) New Mexico 09/17/07 [insert date ofFR

SIP - Interstate Transport publication]

[insert FR page

number where the

document begins]