New Mexico State Implementation Plan Elements Required Under Section 110(a)(2) for the 1997 8-hour Ozone and Fine Particulate Matter (PM 2.5 ) NAAQS

Docket ID EPA-R06-OAR-2009-0647

Technical Support Document April 2011

Table of Contents:
I. Introduction

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

B. Greenhouse Gas (GHG) Component of PSD Programs II. Analysis of other actions being propos ed and not required un der section 110(a)(2)

A. CFR Codification Technical Co rrection to 40 CFR 52.1620(e)

B. CFR Codification Technical Correcti ons to 40 CFR 52.162 0(c) and 40 CFR 52.1640(c)(66)(i)(B)

C. Conversion of our conditional approval of New Mexico’s PSD program to full approval and CF R Codification Technical Correcti ons to 40 CFR 52.1634(a) and 40 CFR 52.1640(c)(39)

D. SIP Revision to 20.2.3 NMAC, the State SI P revision submittal, and EPA analysis III. SIP elements required under Section 110(a)(2) for the 1997 8-hour ozone and fine particulate matter NAAQS, th e State submittals and EPA analysis
IV. EPA’s Recommendation
V. References

I. Introduction

In this technical support document (TSD), EP A is evaluating the submittals provided by the New Mexico Environment Department (NME D) to meet the requirements of section 110(a)(2) of the Clean Air Act (CAA or Act) fo r the 1997 national ambient air quality standards (NAAQS or standards) for 8-hour ozone and fine particulate matter. More detail on these standards, section 110(a)(1) and (2) of the Act, and the submittals we are reviewing to determine if the New Mexico SIP satisfies the section 110( a)(2) requirements is provided in subsection A
below. In addition to addressi ng the requirements of Section 110(a )(1) and (2) of the Act, we are also reviewing a submittal from New Mexico that revises a regulation in the State’s SIP and is not a requirement under section 110(a)(2). We are also proposing to corre ct an administrative oversight by converting our February 27, 1987 conditional approval of New Mexico’s PSD program to a full approval. Pleas e note the fact that we had not formally converted the February 27, 1987 conditional approval to a full approval, yet this had no impact on New Mexico’s authority to implement the PSD program. Lastl y, we are proposing to make a number of US Code of Federal Regulations (CFR) 1 codification technical co rrections. Throughout this document, “we,” “us,” and “our” means EPA.

1 The CFR is the codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the federal government.Page 2 of 34 Section II of the TSD provides an explan ation of the CFR codification technical corrections we are proposing to make; the ration ale for our proposal to c onvert our February 27, 1987 conditional approval of New Mexico’s PSD progr am to a full approval; and our analysis of a submittal from the State to amend title 20, chapte r 2, part 3 of the New Mexico Administrative Code (denoted 20.2.3 NMAC). A copy of the Stat e’s SIP submittal to revise 20.2.3 NMAC is in the docket for this rulemaking. Section III of the TSD provides a description of each element required under section 110(a)(2) of the Act, the State’s re sponse, and our analysis of the St ate’s response. Copies of the State’s submittals are in the docket for this rulemaking.
Section IV of the TSD includes our recomm endation for action on each of the elements
reviewed herein.
Section V of the TSD contains a list of th e guidance documents cited herein. Copies of the guidance documents referenced ar e in the docket for this rulemaking.

A. Section 110(a)(1) and (2) On July 18, 1997, the EPA promulgated a ne w NAAQS for ozone (published in volume 62 of the Federal Register, beginning on p. 38856, denoted 62 FR 38856) and a new standard for fine particulate matter (62 FR 38652). For ozone , EPA revised the NAAQS to provide an 8-hour averaging period (versus the 1-hou r averaging period for the 1-hour ozone standard), and set the level of the standard to 0.08 parts per million (ppm). The 1-hour ozone NAAQS was 0.12 ppm. For particulate matter (PM), EPA promulgated a new 24-hour and new annual standard for fine PM, which applies to particles with an aerodynamic diameter less than or equal to 2.5 micrometers (denoted as PM 2.5 ). The annual PM 2.5 standard was set at 15 micrograms per cubic meter ( μ g/m 3 ) and the 24-hour standard was set at 65 μ g/m 3

. Under section 110(a)(1) a nd (2) of the Act, all states ar e required to submit plans to provide for the implementation, maintenance an d enforcement (the infrastructure) of each NAAQS within 3 years following the promulgation of the NAAQS, or within such shorter period as EPA may prescribe. Section 110 (a)(2) lists the specific “infrastru cture” elements that must be included in these state implementation plan (S IP) submissions. The requirements include SIP infrastructure elements such as requirements for air pollution control measures and monitoring that are designed to assure attainment and maintenance of the NAAQS. 2 Thus states were required to submit such SIPs for the 1997 8-hour ozone and PM 2.5 NAAQS to EPA no later than

June 2000. 3 However, intervening litigati on over the 1997 8-hour ozone and PM 2.5 NAAQS created uncertainty about how to proceed a nd many states did not provide the required
“infrastructure” SIP submission fo r these newly promulgated NAAQS. On March 4, 2004, Earthjustice submitted a not ice of intent to su e related to EPA’s failure to issue findings of failure to submit re lated to the infrastructure requirements for the
1997 8-hour ozone and PM 2.5 NAAQS. EPA entered into a c onsent decree with Earthjustice which required EPA, among other things, to co mplete a Federal Regi ster notice announcing EPA’s determinations pursuant to section 110(k)( 1)(B) of the Act as to whether each state had

2 The statutory language in sections 110(a)(1) and (2) is provided in the docket for this rulemaking

3 EPA issued a revised 8-hour ozone standard on March 27, 2008 (73 FR 16436). On September 16, 2009, the EPA Administrator announced that EPA would take rulemaking action to reconsider the 2008 primary and secondary ozone NAAQS. On January 19, 2010, EPA proposed to set different primary and secondary ozone standards than those set in 2008 to provide requisite pr otection of public health and welfare, respectively (75 FR 2938). The final reconsidered ozone NAAQS have yet to be promulgated. This rulemaking does not address the 2008 ozone
standard.Page 3 of 34 made complete submissions to meet the requ irements of section 110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007. Subsequently, EP A received an extension of the date to complete this Federal Register notice until March 17, 2008, based upon agreement to make the findings with respect to submissions made by Ja nuary 7, 2008. In accordance with the consent decree, EPA made completeness findings for each state based upon what the Agency received from each state as of January 7, 2008. With regard to the 1997 PM 2.5 NAAQS, EPA entered into a consent decree with Earthjustice which requir ed EPA, among other things, to complete a Federal Register notice announcing EPA’s determinations pursuant to section 110(k)(1)(B) of the Act as to whether each state had made comp lete submissions to meet the requirements of section 110(a)(2) for the 1997 PM 2.5 NAAQS by October 5, 2008. On March 27, 2008, EPA published findings co ncerning whether states had made the necessary 110(a)(2) submissions for the 1997 ozone NAAQS (73 FR 16205). EPA determined
that New Mexico had made a submission that addressed some, but not all of the section 110(a)(2) requirements of the Act necessary to implement the 1997 8-hour ozone NAAQS. 4
On October 22, 2008, EPA published findings c oncerning whether states had made the necessary 110(a)(2) submissions for the 1997 PM 2.5 NAAQS (73 FR 62902). In this action, EPA
determined that New Mexico had made the nece ssary submission that provides for the basic program elements specified in section 110(a)(2 ) of the Act necessary to implement the 1997

PM 2.5 NAAQS. On October 2, 2007, we issued “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM 2.5 National Ambient Air Quality Standards,” Memorandum from William T. Harn ett, Director, Air Quality Policy Division, Office of Air Quality Planning and Standards (OAQPS). 5 The guidance addresses the SIP elements found in 110(a)(2) with the ex ception of 110(a)(2)(D)(i) and 110(a)(2)(I). 6 Section 110(a)(2)(D)(i) addresses interstate transport, and is being addressed separately. 7 Section 110(a)(2)(I) pertains to the nonattainment planning re quirements of part D, Title I of the Act, and is also being addressed separately. 8 The guidance states that to th e extent that existing SIPs for ozone and PM already meet these requirements, St ates need only certify that fact to EPA.

4 In the March 27, 2008 action we found that New Mexico had not submitted a SIP revision that modified New Mexico’s Prevention of Significant Deterioration (PSD) SIP for the 1997 8-hour ozone NAAQS to include NOx as an ozone precursor, which is a requirement for approval of element 110(a)(2)(C) and the PSD and visibility portion of element 110(a)(2)(J ). On September 21, 2009, New Mexico s ubmitted the necessary PSD SIP revision. We approved New Mexico’s NOx as an ozone precursor submittal on November 26, 2010 at 75 FR 72688.

5 This and any other guidance documents referenced in this action are in the docket for this rulemaking.

6 The guidance addresses a total of 14 infrastructure elements because the 3 components of section 110(a)(2)(J) are being counted as 3 separate elements.

7 EPA published a finding on April 25, 2005 (70 FR 21147) that all States had failed to submit SIPs addressing interstate transport for the 8-hour ozone and PM 2.5 NAAQS, as required by section 110(a)(2)(D)(i). Furthermore, there is a consent decree in place for seven states in the western United States, including New Mexico, to meet the requirements of section 110(a)(2)(D)(i) with regard to the 1997 8-hour ozone and PM 2.5 NAAQS (74 FR 64076, December 7, 2009). Under the consent de cree, for each of these seven states, EP A is required to fully approve SIPs and/or promulgate FIPs that satisfy the four “prongs” of section 110(a)(2)(D)(i) by specified dates. For the 1997
ozone and PM 2.5 NAAQS, the requirements of section 110(a)(2)(D)(i) are being addressed separately and are not
included in the infrastructure SIPs.

8 Two elements identified in section 110(a)(2) are not governed by the 3- year submission deadline of section 110(a)(1) because SIPs incorporating n ecessary local nonattainment area controls are not due within 3 years after promulgation of a new or revised NAAQS, but rather are due at the time the nonattainment area plan requirements are due pursuant to section 172. Thes e requirements are: (i) Submissions re quired by section 110(a)(2)(C) to the extent that subsection refers to a permit program as requ ired in part D Title I of the CAA and (ii) submissionsPage 4 of 34 On December 10, 2007, the Governor of New Me xico submitted a letter to EPA stating that New Mexico, through the NMED, had evalua ted its existing SIP for implementation of the 1997 8-hour ozone NAAQS. In the letter, the state certified that the New Mexico SIP meets the requirements in sections 110(a)(1 ) and (2) of the CAA for the 8-hour ozone NAAQS. On March 3, 2008, the Governor of New Mexico submitted a le tter to EPA, stating that the NMED had evaluated the existing New Mexico SIP for implementation of the 1997 PM 2.5 NAAQS and found that the SIP does not satisfy all the requirem ents in sections 110(a)(1) and (2) of the CAA
for the 1997 PM 2.5 NAAQS. The March 3, 2008 letter included a table with an explanation of
how the current New Mexico SIP meets most of the requirements of section 110(a)(2) for the

PM 2.5 NAAQS and also a table outlining what secti ons of the New Mexico SIP need to be revised to comply with the secti on 110(a)(2) requirements for the PM 2.5 NAAQS. 9 On April 19, 2011, NMED submitted a letter clarifying its submittals to make clear that the portion of the PSD SIP that is currently not acted upon by EPA (i .e., the portions from which EPA removed its previous approval) is not part of its infrastructure submissions. 10 These letters are in the docket for this rulemaking.

B. Greenhouse Gas (GHG) Component of PSD Programs EPA has recently undertaken a series of ac tions pertaining to the regulation of GHGs that, although for the most part distinct from one another, establish the overall framework for today’s proposed action on the Ne w Mexico SIP. Four of thes e actions include, as they are commonly called, the “Endangerment Finding” and “Cause or Contribute Finding,” which EPA issued in a single final action, 11 the “Johnson Memo Reconsideration,” 12 the “Light-Duty Vehicle Rule,” 13 and the “Tailoring Rule.” 14 Taken together and in c onjunction with the CAA, these actions established regulatory requirements for GHGs emitted from new motor vehicles and new motor vehicle engines; determined that such regulations, when they took effect on January 2, 2011, subjected GHGs emitted from stationary so urces to PSD requirements; and limited the applicability of PSD requiremen ts to GHG sources on a phased-in basis. EPA took this last action in the Tailoring Rule, which, more speci fically, established a ppropriate GHG emission thresholds for determining the applicability of PSD requirements to GHG-emitting sources. In

required by section 110(a)(2)(I) which pertain to the nonatt ainment planning requirements of part D Title I of the CAA. Therefore, this action does not cover these specific SIP elements.

9 In New Mexico’s March 3, 2008 infrastructure SIP submitta l, the State indicated that, at that time, the New Mexico SIP did not satisfy all the infrastructure requ irements of section 110(a)(2) for the 1997 PM 2.5 NAAQS. As explained in section III of this rulemaking and in the TSD, we are proposing to find that New Mexico’s current SIP now meets all the infrastructure requirements of section 110(a)(2) for the 1997 PM 2.5 NAAQS.

10 The April 19, 2011 letter clarified the State’s December 10, 2007 infrastruct ure SIP submittal for the 1997 8-hour ozone standard; the State’s March 3, 2008 infrastructure SIP submittal for the 1997 PM 2.5 standard; and the State’s June 12, 2009 infrastructure SIP submittal for the 2006 PM 2.5 standard. The State’s April 19, 2011 letter is severable, as it clarifies three separate infrastructure SIP submittals. At this time, we are only proposing to take action on the State’s December 10, 2 007, and March 3, 2008 submittals fo r the 1997 8-hour oz one and 1997 PM 2.5 standards. We will take action on the June 12, 2009 submittal for the 2006 PM 2.5 standard in a separate rulemaking.

11 “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.” 74 FR 66496 (December 15, 2009).

12 “Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs.” 75 FR 17004 (April 2, 2010).

13 “Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule.” 75 FR 25324 (May 7, 2010).

14 “Prevention of Significant Deterioration and Title V Gr eenhouse Gas Tailoring Rule; Final Rule.” 75 FR 31514 (June 3, 2010).Page 5 of 34 December 2010, EPA followed up on these actions by issuing the “PSD SIP Narrowing Rule,” 15
in which EPA withdrew its previous approval of SIP PSD programs in 24 states, including New Mexico, that apply to GHG-emitting sources below the thresholds in the final Tailoring Rule. The Tailoring Rule and PSD SIP Narrowing Rule both discuss the states’ ability to provide assurances that they will have adequate resources to meet the new GHG PSD permitting requirements at statutory levels of emissions, and the PSD SIP Narrowing Rule affected EPA’s prior approval of portions of a state’s SIP that do not incorporate threshol ds established under the Tailoring Rule. On November 10, 2010, New Mexico adopted revisions to the State’s PSD rules to implement the GHG thresholds established in EPA’s GHG Tailoring Rule and submitted the corresponding SIP revision to EPA on December 1, 2010. On April 14, 2011, EPA proposed approval of New Mexico’s GHG rules subm itted on December 1, 2010 (76 FR 20907). EPA
intends to take final action on the December 1, 2010 submittal in a separate rulemaking no later
than EPA’s final action on New Mexico’s 1997 ozone and PM 2.5 Infrastructure SIP submittals. Additionally, the NMED submitted a clarification letter to EP A on April 19, 2011, clarifying that the portions of the PSD program related to greenhouse gas permitting that remained approved after the promulgation of EPA’s PSD SIP Narrowi ng Rule satisfy sections 110(a)(2)(C) and (J) of the Act. As we discuss further in this TSD, New Mexico currently has adequate resources to carry out the GHG component of the currently approved PSD SIP program, which requires PSD permitting for sources emitting GHGs at or above the 75,000/100,000 tons per year (tpy) threshold specified by the Tailoring Rule.

II. Analysis of other actions being prop osed and not required under section 110(a)(2)

A. CFR Codification Technical Correction to 40 CFR 52.1620(e) EPA is proposing to correct a CFR codificati on technical error made in the table titled “EPA Approved Nonregulatory Provisions And Q uasi-Regulatory Measures In The New Mexico SIP,” found at title 40, part 52, section 1620(e) of the CFR (denoted 40 CFR 52.1620(e)). 16 EPA approved New Mexico’s Air Pollution Episode Contingency Plan into the SIP on August 21, 1990 (55 FR 34013) under the SIP codification met hod in existence at the time. When we changed our SIP codification method for Ne w Mexico on July 13, 1998 (63 FR 37493), we added the table currently found under 40 CFR 52.1620( e), and included entrie s in this table for all EPA approved nonregulatory pr ovisions in the New Mexico SIP, including those approved prior to 1998. We note that we made an error in not including the al ready SIP approved New Mexico Air Pollution Episode Contingency Pl an when we added this table under 40 CFR 52.1620(e). We are proposing to make a CFR c odification technical co rrection to amend the
table titled “EPA Approved Nonregulatory Provisions And Quasi-Regulatory Measures In The

New Mexico SIP” to include an entry for the New Me xico Air Pollution Episode Contingency Plan approved by EPA into the SIP on August 21, 1990 (55 FR 34013, 40 CFR 52.1639(a)). 17

15 “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in St ate Implementation Plans.” 75 FR 82536 (December 30, 2010).

16 40 CFR 52.1620 provides the Identification of Plan for New Mexico, which lists the EPA-approved provisions of
the SIP for the state, as provided under section 110 of the Act, 42 U.S.C. 7410, and 40 CFR 51 to meet the NAAQS. New Mexico’s EPA approved nonregulatory provisions are provided under 40 CFR 52.1620(e).

17 The New Mexico Air Pollution Episode Contingency Plan is applicable statewide outs ide of the boundaries of Bernalillo County, and was adopted by New Mexico on July 7, 1988 and submitted to EPA as a SIP revision on August 19, 1988.Page 6 of 34 EPA is proposing to make this CFR codification technical correction because it clarifies that EPA has approved the State’s air pollution epis ode provisions into the New Mexico SIP.

B. CFR Codification Technical Correct ions to 40 CFR 52.1620(c) and 40 CFR 52.1640(c)(66)(i)(B) EPA is also proposing to corre ct two CFR codification technical errors made in the table
titled “EPA Approved New Mexico Regulations,” found at 40 CFR 52.1620(c). 18 On October 20, 1995, New Mexico adopted a rec odification of the State’s air quality control regulations (AQCRs). 19 New Mexico submitted the recodification of, and revisions to, the SIP on January 8, 1996, and EPA approved these revisions into th e SIP on September 26, 1997 (62 FR 50514). We would like to clarify that when we approved th e recodification of, and revisions to, the New Mexico SIP in the September 26, 1997 rulemaking, we made a codification error in 40 CFR 52.1620(c) by incorrectly includi ng entries in the table titled “EPA Approved New Mexico Regulations” for part 70 ( Operating Permits ) and part 71 ( Operating Permit Emission Fees ) of 20.2 NMAC, which constitute New Mexico’s Title V permitting program and the associated permitting fees, respectively. 20 The preamble of the Septem ber 26, 1997 rulemaking contains a table listing the rules submitted by New Mexico as a recodification, which EPA had reviewed and approved as a recodificati on to the New Mexico SIP (62 FR 50514, see pages 50516-17). This table in the preamble did not contain part 70 or part 71 of 20.2 NMAC, yet the CFR table found at 40 CFR 52.1620(c) and the New Mexico Identification of Plan at 40 CFR 52.1640(c)(66)(i)(B) 21 erroneously included the two Title V regulations. The preamble of the September 26, 1997 rulemaking did not act to approve these two Title V regulations as part of the New Mexico SIP. Further, we have neve r taken any rulemaking action to approve parts 70 and 71 into the New Mexico SIP. Therefore, New Mexico’s Title V permitting program has always been, and continues to be outs ide the scope of the New Mexico SIP. 22 In addition, the
table titled “EPA Approved New Mexico Regulations,” currently incorrectly lists the EPA approval date of the recodification of New Mexico ’s regulations in the SIP to be November 25, 1997. Although the Federal Register citation (62 FR 50514) listed under the table is correct, the November 25, 1997 date is incorrect and shoul d be changed to September 26, 1997. EPA is proposing to amend the table titled “EPA Approved New Mexico Regulations,” found at 40 CFR 52.1620(c), by deleting the entries for parts 70 an d 71 of 20.2 NMAC and by changing the EPA approval date of the 62 FR 50514 rulemaking from the currently listed date of November 25, 1997 to the correct date of September 26, 1997. We are also proposing to amend 40 CFR 52.1640(c)(66)(i)(B) such that it reads as follows: “New Mexi co Administrative Code, Title 20,

18 New Mexico’s air quality regulations approved by EPA in to the SIP, along with th e State’s approval/effective date of the regulations, EPA’s approval date of the regulat ions into the SIP, and the Federal Register notice citation for approval into the SIP are provided under 40 CFR 52.1620(c).

19 In New Mexico’s 1995 adoption of the recodification of the State’s air quality regulations, the AQCRs existing at the time were renumbered and reformatted into the current NMAC, as was required by the New Mexico State
Records Center.

20 After construction, a source must obtain an operating pe rmit, also called a Title V operating permit, as this requirement comes from Title V of the Act. Most Title V permits are issued by approved State and local permitting authorities. These permits are often called part 70 permits because the regulations that establish minimum standards for State permit programs are found at 40 CFR part 70.

21 40 CFR 52.1640 identifies the original New Mexico SIP and all revisions submitted by New Mexico that were federally approved prior to January 1, 1998

22 New Mexico’s Title V permitting program is legally not pa rt of the SIP, but was approved by EPA on November 26, 1996 (61 FR 60032) as the State’s Title V permitting program.Page 7 of 34 Chapter 2, Parts 3, 5, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 30, 31, 32, 33, 34, 40, 41, 60, 61, 72 (Subparts I, II and III; Subpart V, Sections 501 and 502), 73, 75, 79, and 80; adopted by the New Mexico Environmental Im provement Board on October 20, 1995, and filed
with the State Records and Archives Center on October 30, 1995.” EPA is proposing to make
the CFR codification technical co rrections to 40 CFR 52.164 0(c)(66)(i)(B) and to the table titled “EPA Approved New Mexico Regulations,” found under 40 CFR 52.1620(c), as indicated above, because it is necessary to clarify which New Mexico air quality regulations are currently approved into the New Mexico SIP and the EPA approval date of these regulations into the

SIP. 23

C. Conversion of our conditional approval of New Mexico’s PSD program to full approval and CFR Codification Techni cal Corrections to 40 CFR 52.1634(a) and 40 CFR 52.1640(c)(39) In reviewing the history of New Mexico ’s PSD program for the purposes of the infrastructure SIP, we found th at the State’s PSD program was conditionally approved into the SIP on February 27, 1987 (52 FR 5964). In th e February 27, 1987 rulemaking, New Mexico’s PSD program was conditionally approved by EPA on the basis that (i) the State would not issue permits to sources that would re quire review under EPA’s stack he ight regulations because they would have a stack height over 65 meters or would use any other dispersion techniques, as defined at 40 CFR 51.1(hh); and (ii) as quickly as possible, the State would adopt and submit as a plan revision a regulation that is equivalent to the regulations in 40 CFR Part 51 promulgated to implement Section 123 of th e Act, regarding stack heights. On May 14, 1985, the Governor
of New Mexico submitted a letter in which he committed the State not to issue PSD permits to sources that would require review under EPA’s st ack height regulations because they would have stack heights over 65 meters or would use any other dispersion techniques, as defined at 40 CFR 51.1(hh). 24 On April 26, 1988, New Mexico submitted as a SIP revision a new regulation on stack height requirements to satisfy the federa l requirements of 40 CFR Part 51. On November 2, 1988, EPA approved New Mexico’s stack height re gulation into the SIP (53 FR 44191). Thus, condition (i) of our February 27, 1987 conditiona l approval of New Mexico’s PSD program was met when New Mexico complied with the Gover nor’s May 14, 1985 commitment letter in the interim, and condition (ii) was met when we appr oved New Mexico’s stack height regulations in the November 2, 1988 rulemaking. Therefore, upon our approval of New Me xico’s stack height regulations in the November 2, 1988 rulemaking, Ne w Mexico had fully met all the conditions of EPA’s February 27, 1987 conditional approval of th e State’s PSD program. However, due to an administrative oversight, EPA failed to convert the conditional approval of New Mexico’s PSD program into a full approval at that time. We note that the fact that EPA has not formally converted the conditional approval to a full approval has no impact on the State’s authority to implement the PSD program. Therefore, we now propose to convert our February 27, 1987 conditional approval of the State’ s PSD program to a full approval based on our approval of the State’s stack height regula tions in the November 2, 1988 rulemaking (53 FR 44191). In accordance with our proposal to convert our February 27, 1987 conditional approval of New Mexico’s PSD program to a full approval, we intend to make codification technical

23 Any other CFR corrections to the New Mexico SIP that may be required will be addressed in a separate future
action.

24 See 40 CFR 52.1640(c)(37)(B).Page 8 of 34 corrections to 40 CFR 52.1634( a) and 40 CFR 52.1640(c)(39). 25 40 CFR 52.1634(a) currently identifies New Mexico’s PSD program as meeti ng the requirements of part C of the Act for prevention of significant deterior ation of air quality and as being SIP approved, but does not explain that we initially c onditionally approved the State’s PSD program on February 27, 1987,
and that New Mexico has since then met the co nditions of our conditional approval. We are proposing to amend the paragraph at 40 CFR 52.1634(a) to read as follows: “The plan submitted by the Governor of New Mexico on Februa ry 21, 1984 (as adopted by the New Mexico Environmental Improvement Board (NMEIB) on January 13, 1984), August 19, 1988 (as revised and adopted by the NMEIB on July 8, 1988), and July 16, 1990 (as revised and adopted by the NMEID on March 9, 1990), Air Quality Contro l Regulation 707- Permits, Prevention of Significant Deterioration (PSD) and its Supplemental document, is approved as meeting the requirements of part C, Clean Air Act for preven ting significant deterioration of air quality. Additionally, on November 2, 1988, EPA approved Ne w Mexico’s stack height regulation into the SIP (53 FR 44191), thereby satisfying the cond itions of EPA’s conditional approval of the State’s PSD program on February 27, 1987 (52 FR 5964). Therefor e, the conditional approval is converted to a full approval when we take final action on this CFR correction.” 40 CFR 52.1640(c)(39) currently identifies New Mexico’s stack height regulation submitted on April 26, 1988 as having been approved into the SIP, but do es not identify that this denotes that New Mexico has fully satisfied all conditions of our February 27, 1987 conditional approval of New Mexico’s PSD program. We are proposing to am end the paragraph at 40 CFR 52.1640(c)(39) to read as follows: “On April 26, 1988, the Governor of New Mexico submitted a revision to the State Implementation Plan that contained Air Quality Control Re gulation No. 710- Stack Height Requirements, as adopted by the New Mexico Environmental Improvement Board on March 10, 1988. Regulation No. 710 enables the State to en sure that the degree of emission limitation required for the control of any air pollutant under its SIP is not affected by that portion of any stack height that exceeds GEP or by any other dispersion technique. With EPA’s November 2, 1988, approval of the State’s revision to the Stat e Implementation Plan to include Regulation No. 710 (53 FR 44191), the State has satisfied the conditions of our February 27, 1987 conditional approval of the State’s plan for preventing signif icant deterioration of ai r quality (52 FR 5964). When we take final action on this CFR correction, the conditional approval will be converted to a full approval.” We are proposing the above CF R codification technical correc tions to the paragraphs at 40 CFR 52.1634(a) and 40 CFR 52. 1640(c)(39) because we are proposing to convert our February 27, 1987 conditional approval of New Mexico’s PSD program to a full approval.

D. SIP Revision to 20.2.3 NMAC, the State SIP revision submittal, and EPA analysis In conjunction with our proposed finding th at the New Mexico SIP meets the section 110(a)(1) and (2) infrastructure SIP elements liste d above, we are also proposing to fully approve a severable portion of a SIP revision submitte d by NMED to EPA on November 2, 2006. This portion of the submittal contains a revision to 20.2.3 NMAC ( Ambient Air Quality Standards ) and is not a requirement under th e infrastructure SIPs, and ther efore our proposed approval of this revision is severable from our proposed approval of New Mexico’s infrastructure SIP

25 40 CFR 52.1634(a) provides for New Mexico’s SIP approved PSD program. As stated elsewhere in this rulemaking, 40 CFR 52.1640(c) provides for all revisions submitted by New Mexico that were federally approved into the SIP prior to January 1, 1998. 40 CFR 52.1640(c)(39) provides for New Mexico’s SIP approved stack height regulation.Page 9 of 34 submittals. The revision adds a new subpart 9 to 20.2.3 NMAC, including language to ensure that sources being issued a permit under the State’s minor source permitting program, found at 20.2.72 NMAC ( Construction Permits ), are required to continue to address the State’s ambient air quality standards in their application. The revision includ es language in 20.2.3.9 NMAC that removes the state ambient air qua lity standards from being an applicable requirement under the State’s Title V permitting pr ogram, found at 20.2.70 NMAC ( Operating Permits ). Because New Mexico’s Title V program is outside the scope of the New Mexico SIP, this revision does not
constitute a relaxation of the current New Mexico SIP. As described in subsection C of section II, we made a codification erro r in 40 CFR 52.1620(c) by incorre ctly including entries in the
table titled “EPA Approved New Mexico Regulations” for part 70 ( Operating Permits ) and part 71 ( Operating Permit Emission Fees ) of 20.2 NMAC, which are State regulations that have not been approved into the New Mexico SIP. As the New Mexico Title V permitting program, codified at 20.2.70 NMAC, has not been approved into the New Mexico SIP, approval of the November 2, 2006 revision to 20.2.3 NMAC is appropr iate and will not constitute a relaxation of
the current New Mexico SIP. 26 The SIP revision to 20.2.3 NMAC we are proposing to approve is severable from the portions of the November 2, 2006 SIP submittal on which we are taking no action in this rulemaking. By severable, we mean that the portion of th e SIP revisions we are proposing to approve can be implemented independently of the portions on which we are not acting, without affecting the stringency of the su bmitted rules. EPA is not proposing to take action on any other portions of th e November 2, 2006 SIP revisions in this proposed rulemaking;
EPA intends to act on the other revisions in a se parate rulemaking. EPA proposes to approve the portion of the November 2, 2006 revision, as indicat ed above, because it clarifies the permitting requirements under the New Mexico SIP.

III. SIP elements required under Section 110( a)(2) for the 1997 8-hour ozone and fine particulate matter NAAQS, the Stat e submittals and EPA analysis

The Federally approved SIP for each state is listed in 40 CFR 52. The first section in this subpart for any state is the “Identification of plan.” The Id entification of plan lists the EPAapproved provisions of the SIP for each state, as provided under section 110 of the Act, 42 U.S.C. 7410, and 40 CFR 51 to meet the NAAQS. The status of the New Mexico SIP is provided in 40 CFR Part 52, Subpart GG, sections 1620 to 1640. The Identification of plan for New Mexico is in section 1620; th is constitutes the applicable SIP for New Mexico, for purposes
of the Act.
Per the General Preamble to the 1990 Clean Air Act Amendments (April 16, 1992 at 57 FR 13498), section 110(a)(2) sets forth elements th at a SIP must contain in order to be fully approved. 27 Below we examine the elements required in section 110(a)(2) and the documentation provided by the Stat e of New Mexico. Where it is useful, we include tables showing the date that the applicable state rules were approved by EPA into the New Mexico SIP.

1. Enforceable emission limits and other control measures: Section 110(a)(2)(A) requires
SIPs to include enforceable emission limits and other control measures, means or techniques, as

26 As already explained under footnote 22 (page 6) of this TS D, New Mexico’s Title V program is legally not part of the SIP, but was approved by EPA on November 26, 1996 (61 FR 60032) as the State’s Title V permitting program.

27 The discussion of section 110(a)(2), subsections (A) through (M) begins on p. 13556 of the General Preamble.Page 10 of 34 well as schedules and timetables for compliance, as necessary or appropriate to meet the requirements of this chapter.

The State’s response : In its submittal, the State of New Mexico indicated that New Mexico’s
enforceable emission limitations and other cont rol measures are covered in the Air Quality Control Act and those provisions of the New Me xico Administrative Code (NMAC) Title 20- Environment Protection, Chapte r 2- Air Quality, listed in 40 CFR 52.GG, and source specific provisions codified at 40 CFR 52. GG. The State also asserted that the regulations authorized by Chapter 74- Environmental Improvement of Ne w Mexico’s state stat ute (1978 NMSA) are duly adopted by the Environmental Improvement Board, a nd where these provisions relate to section 110 requirements, SIP revisions have been submitted to and approved by EPA. The State also indicated that New Mexico has an EPA-approved air permitting program for both major and minor sources, which ensures that all applicab le requirements are included in the source’s permit. Furthermore, the State asserted that maintenance plans for the 8-hour ozone NAAQS submitted by New Mexico comply with the re quirements of CAA section 110(a)(1).

EPA analysis : Section 110(a)(2)(A) require s that all measures and other elements in the SIP be
enforceable. This subsection also authorizes SI Ps to contain certain nont raditional techniques for reducing pollution – economic incen tives, marketable permits, and auctions of emissions rights. The EPA reads this language to require even these other means of achieving reductions to be
enforceable. 28 The Air Quality Control Act designate s the NMED as the State’s air pollution control agency and the Environmental Improveme nt Act provides the NMED with enforcement authority. We reviewed the Ne w Mexico SIP and found state rule s to implement and enforce the 1997 ozone and PM NAAQS, and limit or reduce emissions of these pollutants and their

precursors. 29 These rules include emission limits, control measures, as well as permits and fees. We are including a list of parts from Title 20, chapter 2 of the NMAC (denoted 20.2 NMAC) as relevant in meeting the requirements of secti on 110(a)(2)(A). These se ctions were approved by EPA into the New Mexico SIP (see Table 1 be low) and thus are federally enforceable.

20.2 NMAC Part 3 Ambient Air Quality Standards
Part 5 Source Surveillance
Part 7 Excess Emissions Part 8 Emissions Leaving New Mexico
Part 10 Woodwaste Burners Part 11 Asphalt Process Equipment
Part 12 Cement Kilns Part 13 Gypsum Processing Plants
Part 14 Particulate Emissions from Coal Burning Equipment Part 15 Pumice, Mica and Perlite Process Equipment Part 16 Nonferrous Smelters (New and Existing)- Particulate Matter
Part 17 Nonferrous Smelters (Existing)- Particulate Matter
Part 18 Oil Bu rning Equipment- Particulate Matter

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

29 NO

x and VOCs are precursors to ozone. PM can be emitted di rectly and secondarily formed; the latter is the result
of NO

x and SO 2 precursors combining with ammonia to form ammonium nitrate and ammonium sulfate.Page 11 of 34 Part 19 Potash, Salt or Sodi um Sulfate Processing Equi pment- Particulate Matter
Part 20 Lime Ma nufacturing Plants- Pa rticulate Matter Part 21 Fugitive Particulat e Matter Emissions from Nonferrous Smelters Part 22 Fugitive Particulate Matt er Emissions from Roads within the Town of Hurley
Part 30 Kraft Mills
Part 31 Coal Burning Equipment- Sulfur Dioxide
Part 32 Coal Burning Equipment- Nitrogen Dioxide

Part 33 Gas Bu rning Equipment- Nitrogen Dioxide
Part 34 Oil Burning Equipment- Nitrogen Dioxide
Part 40 Sulfur ic Acid Production Units- Sulfur Dioxide , Acid Mist and Visible Emissions
Part 41 Nonferrous Smelters- Sulfur
Part 72 Construction Permits
Part 73 Notice of In tent and Emissions Inventory Requirements
Part 74 Permits- Prevention of Significant Deterioration
Part 75 Construction Permit Fees Part 98 General Conformity Part 99 Transportation Conformity

The Environmental Improvement Act, found in Chapter 74, Article 1 of the New Mexico Statutes Annotated 1978 (denot ed NMSA 1978 74-1), created th e NMED and the New Mexico Environmental Improvement Board (EIB). The New Mexico Air Qu ality Control Act codified at NMSA 1978 74-2, delegates authority to the EIB to adopt, promulgate, publish, amend and repeal regulations consistent wi th the Air Quality Control Act to attain and maintain NAAQS and prevent or abate air polluti on (see NMSA 1978 74-2-5(B)(1)). The Air Quality Control Act also designates the NMED as the State’s air pollution control agency and the Environmental Improvement Act provides the NMED with enforcem ent authority. The SIP rule at Title 20 of the New Mexico Administrative Code (denoted as 20 NMAC) describes NMED as the State’s air pollution control agency and its enforcement authority, referencing the 1978 NMSA (44 FR 21019, April 9, 1979; revised 49 FR 44101, November 2, 1984; recodified approved in 62 FR 50518, September 26, 1997).
Part 3 of 20.2 NMAC establishes the statewid e ambient air quality standards, including those for total suspended particulates, nitrog en dioxide, and sulfur dioxide. The general requirements for maintaining and reporting records on emissions are provided in part 5. Part 7 establishes the requirements fo r a source whose operation resu lts in excess emissions and provides for other enforcement provisions. Part 8 establishes requirements for emissions leaving
New Mexico. Part 10 establishes contro ls on the use of woodwaste burners. Parts 11-20 establish particul ate matter emission standards for asphalt process equipment; cement kilns; gypsum processing plants; coal burning equipment; pumice, mica, and perlite process equipment; nonferrous smelters; existi ng nonferrous smelters; oil burning equipment; potash, salt or sodium sulfate processing equipm ent; and lime manufacturing plants. Parts 21 and 22 establish fugitive particulate matter emi ssion standards for nonferrous smelters and for roads within the town of Hurley, New Mexico. Part 30 regulates emissions from kraft mills, including particulate matter and to tal reduced sulfur. Part 31 establishes sulfur dioxide emission standards for coal burning equipment, while Parts 32-34 establish nitrogen dioxide emission standards for coal burning equipment, gas burning equipment, and oil burning equipment. Part 40 establishes requirements and standards for sulfuric acid production units to minimizePage 12 of 34 emissions of sulfur dioxide and acid mist. Pa rt 41 establishes requirements and standards for
nonferrous smelters to minimize sulfur emissions. Part 72 addresses construction permits required for new and modified stationary sources with a potential emission rate greater than 25 tons per year of any regulated air contaminant for
which there is a federal or state ambient air quality standard. Part 73 establishes emission inventory requirements and provides for notice of in tent requirements that apply to any owner or operator intending to construct a new stationary source or modify an existing stationary source with a potential emission rate greater than 10 tons per year of any regulated air contaminant.
Part 75 establishes constr uction permit fees. Part 74 addresses PSD permit procedures. Parts 98 and 99 establish the policy, criteria, and proced ures for demonstrating and assuring general conformity and transportation conformity to the New Mexico SIP. EPA approved New Mexico’s current provisi ons regarding excess emissions occurring during startup, shutdown, and malf unction (SSM) of operations at a facility on September 14, 2009 (74 FR 46910). EPA believes that a number of states have SSM SI P provisions which are contrary to the Act and inconsis tent with existing EPA guidance, 30 and the Agency plans to
conduct a SIP call in the future to address su ch SIP regulations. In the meantime, EPA encourages any State having an SSM SIP provision which is contrary to the Act and inconsistent with EPA guidance to take steps to correct the deficiency as soon as possi ble before a SIP call is implemented. We are also not evaluating existing state rules with regard to director’s discretion or variance provisions in this action, as we plan to take action in the future to address such state regulations. The rules listed above at 20.2 NMAC pa rts 3, 5, 7-8, 10-22, 30-34, 40-41, 72-75, and 98- 99 were approved by EPA for adoption into the Ne w Mexico SIP (see Table 1 below) and thus are enforceable by the State and EPA. We ar e proposing that the New Mexico SIP meets the requirements of section 110(a)(2)(A) with respect to the 1997 8-hour ozone and PM 2.5 NAAQS.

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

Relevant Section of New Mexico’s SIP EPA Approval/Federal Register 31
20.2.3 NMAC - Ambient Air Quality
Standards September 26, 1997 at 62 FR 50514 32

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

20.2.7 NMAC - Excess Emissions September 14, 2009 at 74 FR 46910 20.2.8 NMAC - Emissions Leaving New
Mexico September 26, 1997 at 62 FR 50514

20.2.10 NMAC - Woodwaste Burners Se ptember 26, 1997 at 62 FR 50514 20.2.11 NMAC - Asphalt Process Equipment September 26, 1997 at 62 FR 50514

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

30 “State Implementation Plans (SIPs): Policy Regardin g Excess Emissions During Malfunctions, Startup, and Shutdown,” Memorandum from Steven A. Herman, Assi stant Administrator for Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation, dated August 11, 1999.

31 This is the EPA approval date currently found in New Mexico’s Identification of Plan at 40 CFR 52.1620(c). This date reflects our most recent approval of revisions to the applicable New Mexico air regulations in the New Mexico
SIP.

32 In subsection B of section II of this TSD, we ex plain that EPA is proposing to amend the table titled “EPA Approved New Mexico Regulations,” found at 40 CFR 52.1620(c), by changing the EPA approval date of the 62 FR 50514 rulemaking from the currently listed date of November 25, 1997 to the correct date of September 26, 1997.Page 13 of 34 20.2.14 NMAC - Particulate Emissions from Coal Burning Equipment September 26, 1997 at 62 FR 50514

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

20.2.16 NMAC - Nonferrous Smelters (New and Existing)- Particulate Matter September 26, 1997 at 62 FR 50514

20.2.17 NMAC - Nonferrous Smelters (Existing)- Particulate Matter September 26, 1997 at 62 FR 50514

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

20.2.19 NMAC - Potash, Salt or Sodium Sulfate Processing Equipment- Particulate

Matter September 26, 1997 at 62 FR 50514

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

20.2.21 NMAC - Fugitive Particulate Matter
Emissions from Nonferrous Smelters September 26, 1997 at 62 FR 50514

20.2.22 NMAC - Fugitive Particulate Matter
Emissions from Roads Within the Town of Hurley September 26, 1997 at 62 FR 50514

20.2.30 NMAC - Kraft Mills September 26, 1997 at 62 FR 5051420.2.31 NMAC - Coal Burning EquipmentSulfur Dioxide September 26, 1997 at 62 FR 50514

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

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

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

20.2.40 NMAC - Sulfuric Production UnitsSulfur Dioxide, Acid Mist and Visible
Emissions September 26, 1997 at 62 FR 50514

20.2.41 NMAC - Nonferrous Smelters- Sulfur September 26, 1997 at 62 FR 50514 20.2.72 NMAC - Construction Permits September 26, 1997 at 62 FR 50514

20.2.73 NMAC - Notice of Intent and Emissions Inventory Requirements August 12, 2010 at 75 FR 48860

20.2.74 NMAC - Permits- Prevention of Significant Deterioration September 26, 1997 at 75 FR 72688

20.2.75 NMAC - Construction Permit Fees September 26, 1997 at 62 FR 50514 20.2.98 NMAC - General Conformity September 9, 1998 at 63 FR 48109 20.2.99 NMAC - Transportation Conformity March 20, 2000 at 65 FR 14877

2. Ambient air quality monitori ng and data analysis system : Section 110(a)(2)(B) requires SIPs to include provisions for establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon
request.Page 14 of 34 The State’s response : In its submittals, the NMED did not specifically address how the New Mexico SIP satisfies this particular element of section 110(a)(2)(B).

EPA analysis : EPA historically has promulgated regula tions in 40 CFR 58 (A mbient Air Quality Surveillance), indicating the necessary data states n eed to collect and submit as part of their SIP. The New Mexico statewide air quality survei llance network was approved by EPA on August 6, 1981 (46 FR 40005). The air quality surveillance network undergoes annual review by EPA. On July 7, 2010, NMED submitted its 2010 Annual Air Monitoring Network Plan (AAMNP) that included the plans for the 1997 ozone and PM 2.5 NAAQS. EPA approved New Mexico’s 2010 AAMNP on January 7, 2011. 33 The NMED monitors that are not certified as meeting the federal requirements are identified as “non-regulatory” monitors. 34 The NMED website provides the
ozone and PM 2.5 monitor locations and posts past and current concentrations of PM 2.5 and ozone measured in the State’s network of monitors (see http://air.nmenv.state.nm.us/ ). The State submits air monitoring data to EPA quart erly and certifies the data annually. We are proposing that the New Mexico SIP meets the requirements of section 110(a)(2)(B) with respect to the
1997 8-hour ozone and PM 2.5 NAAQS.

3. Program for enforcement of control measures : Section 110(a)(2)(C) requires states to include a program providing for enforcement of th e measures described in subparagraph (A), and the regulation of the modification and constructio n of any stationary source within the areas covered by the SIP as necessary to assure th at the NAAQS are achieved, including a permit program as required in parts C and D.

The State's response : In its submittals, the NMED did not specifically address how the New Mexico SIP satisfies this particular element of section 110(a)(2)(C).

EPA analysis : We note the following parts within the New Mexico SIP as relevant to meet the requirements of section 110(a)(2)(C):

20.2 NMAC Part 3 Ambient Air Quality Standards
Part 5 Source Surveillance
Part 7 Excess Emissions Part 8 Emissions Leaving New Mexico
Part 10 Woodwaste Burners Part 11 Asphalt Process Equipment
Part 12 Cement Kilns Part 13 Gypsum Processing Plants
Part 14 Particulate Emissions from Coal Burning Equipment

33 A copy of our approval letter is available in the docket for this rulemaking.

34 These include for example, special purpose monitors (SPMs). Special purpose monitoring is conducted on a frequent basis for a variety of reasons: as a tool to supplement state ambient air monitoring networks to obtain information on where to locate permanent monitoring stations, to provide additional data in support of pollutant formation and transport analyses, or to assess air quality in a particular location. These studies vary in duration from being temporary sites needed only during a portion of the year to long-term air pollution studies over a large area.Page 15 of 34 Part 15 Pumice, Mica and Perlite Process Equipment Part 16 Nonferrous Smelters (New and Existing)- Particulate Matter
Part 17 Nonferrous Smelters (Existing)- Particulate Matter
Part 18 Oil Bu rning Equipment- Particulate Matter Part 19 Potash, Salt or Sodi um Sulfate Processing Equi pment- Particulate Matter
Part 20 Lime Ma nufacturing Plants- Pa rticulate Matter Part 21 Fugitive Particulat e Matter Emissions from Nonferrous Smelters Part 22 Fugitive Particulate Matt er Emissions from Roads within the Town of Hurley
Part 30 Kraft Mills
Part 31 Coal Burning Equipment- Sulfur Dioxide
Part 32 Coal Burning Equipment- Nitrogen Dioxide

Part 33 Gas Bu rning Equipment- Nitrogen Dioxide
Part 34 Oil Burning Equipment- Nitrogen Dioxide
Part 40 Sulfur ic Acid Production Units- Sulfur Dioxide , Acid Mist and Visible Emissions
Part 41 Nonferrous Smelters- Sulfur
Part 72 Construction Permits
Part 73 Notice of In tent and Emissions Inventory Requirements
Part 74 Permits- Prevention of Significant Deterioration
Part 75 Construction Permit Fees Part 98 General Conformity Part 99 Transportation Conformity

Enforcement authority is provided by NMSA 1978 74-1 and NM SA 1978 74-2, which address general enforcement power; investigation and remediation agreements; civil and criminal penalties; compliance orders and emergency cease and desist orders; civil actions; a field citation program; and etc. Part 3 of 20.2 NMAC establishe s the statewide ambient air quality standards, including those for total suspe nded particulates, nitrogen diox ide, and sulfur dioxide. The general requirements for maintain ing and reporting records on emi ssions are provided in part 5. The requirements for a source whose operation results in an excess emission and other enforcement provisions are provided in part 7. Part 8 establishes requirements for emissions leaving New Mexico. Part 10 establishes c ontrols on the use of woodwaste burners.
Enforcement of emissions invent ory requirements are provided in part 73. Additional issues addressed in parts 11-22, 30- 34, 40-41, 72, 74-75, and 98-99 include allowable rates, compliance schedules, control plan requirements, actual a nd allowable emissions, monitoring and testing requirements, and control schedules. These chapte rs and their SIP approval dates are provided in Table 3 below. These citations clarify the boundaries beyond which regul ated entities in New Mexico can expect enforcement action. The existing federal regulations require both major and minor NSR programs to address any pollutant for which there is a NAAQS and pr ecursors to the formation of such pollutant when identified for regulation by the Administrato r. The major NSR program is composed of two different programs: prev ention of significant deteriora tion (PSD) and nonattainment new source review (nonattainment NSR). 35 The major NSR provisions of the Act are a combination

35 We often refer to the PSD and nonattainment NSR programs together as the major NSR program because these programs regulate only major sources. The Act uses the te rms “major emitting facility” to refer to sources subject to the PSD program, and “major stationa ry source” to refer to sources subj ect to nonattainment NSR. See CAA sections 165, 169, 172(c)(5), and 302(j).Page 16 of 34 of air quality planning and air pollution cont rol technology program requirements for new and modified stationary sources of air pollution. Nonattainment NSR applies to areas not in attainment of a NAAQS or in the Ozone Tr ansport Region, and is implemented under the requirements of part D of title I of th e CAA , and 40 CFR 51.160 through 51.166. In a nonattainment area, any stationary pollutant sour ce with the potential to emit 100 tons per year (tpy) or more of any regulated NSR pollutant is considered a major stationary source. Sources subject to nonattainment NSR ar e required by the CAA to obtain an air pollution permit before beginning construction. We are not evaluating nonatta inment-related provisions, such as the nonattainment NSR program required by part D in 110(a)(2)(C) and measures for attainment required by section 110(a)(2)(I), as part of the 110(a)(2) infrastructure SIPs because these submittals are required beyond the date (3 ye ars from NAAQS promulga tion) that section 110(a)(2) infrastructure submittals are requir ed. EPA will address the nonattainment NSR requirements of section 110(a)(2)(C ) through a separate rulemaking. The other component of the major NSR program, known as the PSD program, is implemented under the requirements of part C of title I of the CAA , and 40 CFR 51.166. The PSD program regulates the construction of any new major stationary source or major modification at existing stationa ry sources located in areas meeting the NAAQS (“attainment” areas) and areas for which there is insufficient inform ation to classify an area as either attainment or nonattainment (“unclassifiable” areas). In ar eas subject to the PSD requirements, the cutoff pollutant level may be either 100 tpy or 250 t py of any regulated NSR pollutant, depending upon
the source. 36 These sources are required by the Act to obtain an air pollution permit before beginning construction. As explai ned in section II, subsection C of this TSD, New Mexico’s PSD program was conditionally approved into the SIP on February 27, 1987 (52 FR 5964). Today, we propose to convert the conditional appr oval to a full approval on the basis of our November 2, 1988 approval of New Mexico’s Ap ril 26, 1988 submittal to include in the SIP a new regulation on stack height re quirements to satisfy the federa l requirements of 40 CFR Part 51. Subsequent revisions to New Mexico’s PSD program were approved into the SIP on August 21, 1990 (55 FR 34013), May 2, 1991 (56 FR 20137), October 15, 1996 (61 FR 53639), March 10, 2003 (68 FR 11316), December 24, 2003 (68 FR 74483), September 5, 2007 (72 FR 50879), and November 26, 2010 (75 FR 72688). To meet the requirements of 110(a)(2)(C ) for the 1997 8-hour ozone standard, EPA believes the State must have upda ted its PSD rules to treat NO

x as a precursor for ozone (70 FR 71612). Pursuant to 40 CFR 51.165 and 166, the stat e’s rules to implemen t the ozone standard must include: (1) the identification of NOx as a precursor for ozone; (2) definition of the significance level for NO

x as 40 tpy for PSD, with this significance level linked to ozone as the pollutant; and (3) a note or statement that “no de minimis air quality level may be provided for ozone. However, any net emissions incr ease of 100 tpy or more of VOC or NO

x subject to PSD would be required to perform an ambient impact analysis, including the ga thering of ambient air quality data.” On November 26, 2010, EPA appr oved revisions to New Mexico’s PSD SIP for the 1997 8-hour ozone NAAQS to include NOx as an ozone precursor (75 FR 72688). The
definitions in the New Mexico rules for Major Modification and Major Stationary Source meet the federal definition in 40 CF R 51.166(b)(1) to identify a ma jor source of NOx as a major
source for ozone. The emission rate for ozone under the definition for Significant in the New Mexico rules also meets the federal requireme nts in 40 CFR 51.166(b)(23)(i). As shown in Table 2 below, New Mexico’s rules to implemen t the ozone standard satisfy requirements (1)-(2)

36 See section 169(1) of the Act for the types of sources in each of the 100 tpy and 250 tpy categories.Page 17 of 34 above. Requirement (3) above is inse rted verbatim in the table showing Significant Monitoring

Concentrations for ozone at 20.2.74.503 NMAC. This provision allows for an exemption with respect to ozone monitoring for a source with a ne t emissions increase less than 100 tpy of NOx, and also meets the federal requirement on mon itoring exemptions under the footnote for 40 CFR 166(i)(5)(i)(e). These rules have been appr oved into the New Mexico SIP, and are thus federally-enforceable.

Table 2: New Mexico rules necessary to implement the ozone standard, pursuant to 40 CFR 51.165 and 40 CFR 51.166 Requirement State Citation 40 CFR 51.166 (b)(1)(ii) A major source that is major for VOCs or NOx is considered major
for ozone. Addressed in 20.2.74.7 NMAC, 37 Definitions
for Major Modification and Major Stationary

Source 40 CFR 51.166 (23)(i) Signi ficant: in reference
to a net emissions increase or potential to emit, a rate that equals or exceeds 40 tpy of NOx. Addressed in 20.2.74.7, Definition for Significant

40 CFR 51.166 (49)(i) NOx identified as a
precursor to ozone. Addressed in 20.2.74.7 NMAC, Definition for Regulated NSR Pollutant 20.2.74.6 NMAC links PSD to regulated NSR pollutant

To meet the requirements of 110(a)(2)(C ) for the 1997 8-hour ozone standard, EPA
believes the State must have th e adequate authority and resour ces to address greenhouse gases (GHGs) in the PSD permitting program. New Mexi co has the authority to issue permits under the SIP-approved PSD program to sources of GHG emissions (75 FR 82536, page 82536, December 30, 2010). 38 The Tailoring Rule established thre sholds that phase in the applicability of PSD requirements to GHG sources, starting w ith the largest GHG emitters, and were designed to relieve the overwhelming admi nistrative burdens and costs a ssociated with the dramatic increase in permitting burden that would have resulted from applying PSD requirements to GHG
emission increases at or above only the mass-based statutory thre sholds of 100/250 tpy generally applicable to all PSD-regulat ed pollutants starting on January 2, 2011. However, EPA recognized that even after it finalized the Tailoring Rule, many SIPs with approved PSD programs would, until they were revised, continue to apply PSD at the stat utory thresholds, even

37 20.2.74.7 NMAC addresses the State’s PSD program.

38 On June 24, 2010, the State submitted a letter to EPA stating that current New Mexico rules require regulating GHGs at the existing 100/250 tpy threshold, rather than at the higher thresholds set in the Tailoring Rule because the State does not have the authority to apply the meaning of the term “subject to regulation” established in the Tailoring Rule. New Mexico also submitted a letter on Se ptember 14, 2010, in response to the proposed GHG SIP Call again confirming that EPA correc tly classified New Mexico as a St ate with authority to apply PSD requirements to GHGs. The September 14, 2010, letter also identifies that NMED is pursuing rulemaking activity to define the terms “greenhouse gas” and “subject to regulation.” These two letters are in the docket for this rulemaking. As explained elsewhere in this rulemaking, on November 10, 2010, New Mexico adopted revisions to the State’s PSD rules to implement the GHG thresholds es tablished in EPA’s GHG Tailoring rule and submitted the corresponding SIP revision to EPA on December 1, 2010. On April 14, 2011, EPA proposed approval of New
Mexico’s GHG rules submitted on Decem ber 1, 2010 (76 FR 20907). EPA in tends to take final action on the December 1, 2010 submittal in a separate rulemaking no la ter than EPA’s final action on New Mexico’s 1997 ozone
and PM 2.5 Infrastructure SIP submittals.Page 18 of 34 though the states would not have sufficient resources to implem ent the PSD program at those levels. EPA consequently implemented its “PSD SIP Narrowing Rule” and narrowed its approval of those provisions of previously appr oved SIPs of 24 states, including New Mexico, that apply PSD to GHG emission increases from sources emitting GHGs below the Tailoring Rule thresholds (75 FR 82536, December 30, 2010). Through the PSD SIP Narrowing Rule, EPA withdrew its previous appr ovals of those programs to the extent the SIPs apply PSD to
increases in GHG emissions from GHG-emitting sources below the Tailoring Rule thresholds. The portions of the PSD programs regulating GHGs from GHG-emitting sources with emission
increases at or above the Tailo ring Rule thresholds remained approved. The effect of EPA narrowing its approval in this manner is that th e provisions of previous ly approved SIPs that apply PSD to GHG emissions increases from sources emitting GHGs below the Tailoring Rule thresholds have the status of having been submitted by the state but not yet acted upon by EPA (75 FR 82536, December 30, 2010). On November 10, 2010, New Mexico adopted re visions to the State’s PSD rules to implement the GHG thresholds established in EPA’s GHG Tailoring rule and submitted the corresponding SIP revision to EPA on December 1, 2010. EPA intends to take final action on the December 1, 2010 submittal in a separate rulemaking no later than EPA’s final action on
New Mexico’s 1997 ozone and PM 2.5 infrastructure SIP submittals. We are proposing to find
that the current New Mexico PSD SIP meets the requirements of s ection 110(a)(2)(C) with respect to the 1997 8- hour ozone and PM 2.5 NAAQS, as long as we ar e able to fully approve
New Mexico’s GHG submittal on or before our final action on New Mexico’s 1997 ozone and

PM 2.5 infrastructure SIP submittals. Additionally, New Mexico submitted a cl arification letter to EPA on April 19, 2011, clarifying that the portion of the GHG PSD prog ram in the State’s submittal under infrastructure SIP review is only the portion that remained approved after EP A’s promulgation of the PSD SIP Narrowing Rule, which is the po rtion that regulates GHG-emitti ng sources with GHG emissions at or above the Tailoring Rule thresholds. Therefore, if we are unable to fully approve New Mexico’s GHG submittal, in the alternative, we are proposing to find that the current New Mexico PSD SIP meets section 110(a)(2)(C) wi th respect to the 1997 8-hour ozone and PM 2.5 NAAQS on the basis of the State’s Ap ril 19, 2011 clarifi cation letter. To meet the requirements of section 110(a)(2)(C) for the 1997 PM 2.5 standard, EPA believes that States should appropriately im plement the interim policy for PSD review as interpreted by legal rulings. 39 States may follow this approach until May 16, 2011, the date by which we required states to provide revisions to their PSD regulations to implement the PM 2.5 standard as provided under 73 FR 28321. 40 During the transition to SIP-approved PSD requirements for PM 2.5 , New Mexico confirmed to EPA by le tter that: (1) it does not use PM 10 as a surrogate for PM 2.5 in its permitting programs; (2) it requires that applicants include PM 2.5 modeling and emissions in their PSD and minor source permit applications; and (3) the record for the NMED’s permitting decision includes an explanation of how PM 2.5 emissions have been

39 In 1997, EPA issued an interim policy allowing PM 10 emissions to be used as a surrogate for PM 2.5 emissions in the PSD program. In 2008, EPA ended this policy for stat es implementing the federal PSD program. These States and major sources therein are now re quired to specifically evaluate PM 2.5 emissions and the applicable PSD requirements. States implementing a SIP-approved PSD program have until May 16, 2011 to submit PSD SIP
revisions that address PM 2.5 . See 73 FR 28321.

40 73 FR 28321 was published May 16, 2008.Page 19 of 34 appropriately analyzed and estimated. 41 (See also 75 FR 52692, page 52700; 75 FR 72688, page 72694). Furthermore, the State has recently prop osed to revise their rules to address PM 2.5 in their PSD program, and expects to adopt these revisions in May 2011. The State is planning to submit these revised PSD rules to EPA as a SIP revision by May 16, 2011. EPA will act on this submission in a separate rulemaking. The minor NSR program is for major and minor stationary sources that undertake
construction or modification activit ies that do not qualify as major, and it applies regardless of the designation of the area in which a source is lo cated. The purpose of minor NSR permits is to prevent the construction of sources that would in terfere with attainment or maintenance of a NAAQS or violate the control st rategy in nonattainment areas. Also, minor NSR permits often contain permit conditions to limit the source’s emissions to avoid PSD or NNSR. Section 110(a)(2)(C) creates “a general duty on States to include a program in their SIP that regulates the
modification and construction of any stationary source as necessa ry to assure that the NAAQS are achieved” (70 FR 71612, 71677). EPA provides states with a “broad degree of discretion” in implementing their minor NSR programs ( 71 FR 48696, 48700). The “considerably less detailed” regulations for minor NSR are provided in 40 CFR 51.160 through 51.164. New Mexico’s minor source permitting requirements are found at 20.2.72 NMAC and were initially approved into the New Mexico SIP on May 14, 1973 (38 FR 12702). 42 The SIP continues to require preconstruction permits for mi nor sources and minor modifications. In this action, EPA is not proposing to approve or disapprove any state rules with regard to the NSR Reform requirements promulgated by EPA on December 31, 2002, and reconsidered with minor changes on November 7, 2003. 43
We are proposing that the New Mexico SIP meets the requirements of section 110(a)(2)(C) with respect to the 1997 8-hour ozone and PM 2.5 NAAQS.

Table 3: New Mexico rules relevant to meeting section 110(a)(2)(C):

Relevant Section of New Mexico’s SIP EP A Approval/Federal Register Citation 20.2.3 NMAC - Ambient Air Quality
Standards September 26, 1997 at 62 FR 50514

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

20.2.7 NMAC - Excess Emissions September 14, 2009 at 74 FR 46910 20.2.8 NMAC - Emissions Leaving New
Mexico September 26, 1997 at 62 FR 50514

20.2.10 NMAC - Woodwaste Burners Se ptember 26, 1997 at 62 FR 50514 20.2.11 NMAC - Asphalt Process Equipment September 26, 1997 at 62 FR 50514

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

41 July 23, 2010, letter from Mary Uhl, Bureau Chief, Ai r Quality Bureau, New Mexico Environment Department, to Thomas Diggs, Associate Director for Air Programs, EPA Region 6. This letter is in the docket for this rulemaking.

42 Revisions to New Mexico’s minor source program were most recently approved into the SIP on September 26, 1997 ( 62 FR 50514).

43 EPA promulgated NSR Reform require ments on December 31, 2002, and reconsidered with minor changes on November 7, 2003 (collectively, these two Federal actions are called the “2002 NSR Reform Rules”). States are required to either adopt these provis ions or provide a demonstration that the state’s existing program can be considered “equivalent. ” On December 29, 2005, New Mexico submit ted a SIP revision up dating the State’s PSD and nonattainment NSR regulations to make them consistent with the 2002 NSR Reform Rules. EPA approved this SIP revision on September 5, 2007 (72 FR 50879).Page 20 of 34 20.2.14 NMAC - Particulate Emissions from Coal Burning Equipment September 26, 1997 at 62 FR 50514

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

20.2.16 NMAC - Nonferrous Smelters (New and Existing)- Particulate Matter September 26, 1997 at 62 FR 50514

20.2.17 NMAC - Nonferrous Smelters (Existing)- Particulate Matter September 26, 1997 at 62 FR 50514

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

20.2.19 NMAC - Potash, Salt or Sodium Sulfate Processing Equipment- Particulate

Matter September 26, 1997 at 62 FR 50514

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

20.2.21 NMAC - Fugitive Particulate Matter
Emissions from Nonferrous Smelters September 26, 1997 at 62 FR 50514

20.2.22 NMAC - Fugitive Particulate Matter
Emissions from Roads Within the Town of Hurley September 26, 1997 at 62 FR 50514

20.2.30 NMAC - Kraft Mills September 26, 1997 at 62 FR 5051420.2.31 NMAC - Coal Burning EquipmentSulfur Dioxide September 26, 1997 at 62 FR 50514

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

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

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

20.2.40 NMAC - Sulfuric Production UnitsSulfur Dioxide, Acid Mist and Visible
Emissions September 26, 1997 at 62 FR 50514

20.2.41 NMAC - Nonferrous Smelters- Sulfur September 26, 1997 at 62 FR 50514 20.2.72 NMAC - Construction Permits September 26, 1997 at 62 FR 50514

20.2.73 NMAC - Notice of Intent and Emissions Inventory Requirements August 12, 2010 at 75 FR 48860

20.2.74 NMAC - Permits- Prevention of Significant Deterioration September 26, 1997 at 75 FR 72688

20.2.75 NMAC - Construction Permit Fees September 26, 1997 at 62 FR 50514 20.2.98 NMAC - General Conformity September 9, 1998 at 63 FR 48109 20.2.99 NMAC - Transportation Conformity March 20, 2000 at 65 FR 14877

4. Interstate transport, and interstate and international pollution abatement : Section 110(a)(2)(D) is divided into two components, 110(a)(2)(D)(i) and 110(a )(2)(D)(ii). Section 110(a)(2)(D)(i) requires SIPs to include provisi ons prohibiting any sour ce or other type of emissions activity in one state from contributing significantly to nonattainment, interfering withPage 21 of 34 maintenance of the NAAQS in another state, or from interfering with measures required to prevent significant deterioration of air quality or to protect visibi lity in another state. For the
1997 ozone and PM 2.5 NAAQS, the requirements of section 110(a)(2)(D)(i) are being addressed separately and are not included in the infrastructure SIPs. 44 Section 110(a)(2)(D)(ii) requires SIPs to include provisions insuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.

The State's response : In its submittal, the State of New Mexico indicated that in September 2007, New Mexico adopted and submitted to EPA a SIP revision pertaining only to section 110(a)(2)(D)(i). The State indicates that it is no t currently subject to re quirements under sections
115 and 126.

EPA analysis : Regarding the requirements of secti on 110(a)(2)(D)(ii), secti on 115(a) of the Act
mandates that whenever the Administrator has reason to believe that any air pollutant or pollutants emitted in the U.S. cause or contri bute to air pollution which may reasonably be anticipated to endanger public heal th or welfare in a foreign count ry or whenever the Secretary of State requests the Administrator to do so w ith respect to such pollution, the Administrator shall give formal notification thereof to the G overnor of the State in which such emissions originate. Pursuant to secti on 115, the Administrator has neither received nor issued a formal
notification that emissions from New Mexico are endangering public health or welfare in a foreign country. Section 126(a) of the Act requires that each applicable implementation plan shall require each major proposed new or modified source to notify neighboring states of potential impacts
from the source. 45 The New Mexico SIP addresses section 126(a)(1)(A) of the Act under their PSD rules at 20.2.74.400 NMAC, by providing that th e NMED must send notice of the proposed action on PSD permits to, among others, “any state ... whose lands may be affected by emissions

44 As discussed elsewhere in this TSD, EPA published a finding on April 25, 2005 (70 FR 21147) that all States had failed to submit SIPs addressing intersta te transport for the 8-hour ozone and PM 2.5 NAAQS, as required by section 110(a)(2)(D)(i). Furthermor e, there is a consent decree in place for se ven states in the western United States, including New Mexico, to meet the requ irements of section 110(a)(2)(D)(i) with regard to the 1997 8-hour ozone
and PM 2.5 NAAQS. Under the consent decree, for each of these se ven states, EPA is required to fully approve SIPs and/or promulgate FIPs that satisfy the four “prongs” of section 110(a)(2)(D)(i) by specified dates. For the 1997
ozone and PM 2.5 NAAQS, the requirements of the section 110(a)(2)(D)(i) are being addressed separately and are not
included in the infrastructure SIPs.

45 Under section 126(a)(1), SIPs must require notification to nearby, affected states of “major proposed new (or modified) sources” in either of two in stances: (1) when the sour ce is subject to PSD (section 126(a)(1)(A)); or (2) when the source “may significantly contribute to levels of air pollution in excess” of the NAAQS in air quality control regions in other states (section 126(a)(1)(B)). An y new major stationary source or major modification in an attainment or unclassifiable area is subj ect to PSD. Therefore, in attainment or unclassifiable areas, any source that potentially falls under section 126(a)(1)(B) must also fall u nder (A). Thus, to the extent that section 126(a)(1)(B) provides any requirements separate from those in section 126(a)(1)(A), it does so only for major proposed new or modified sources in nonattainment areas, that is, for sour ces subject to nonattainment NSR. The requirements of section 126(a)(1)(B) should therefore be addressed in states with nonattainment areas through those states’ nonattainment NSR programs. As explained elsewhere in this proposed rulemaking, nonattainment NSR programs are not a subject of this action, so EPA will not address th e requirements of section 126(a)(1)(B) in the infrastructure
SIPs.Page 22 of 34 from the source or modification.” 46 The State also has no pendi ng obligations under section 126
of the Act. We are proposing that the New Mexico SI P meets the PSD and NSR requirements of section 110(a)(2)(D)(ii) of the Act with respect to the 1997 8-hour ozone and PM 2.5 NAAQS.

Table 4: New Mexico rules relevant to meeting section 110(a)(2)(D)(ii), as determined by
EPA:
Relevant Section of New Mexico’s SIP EP A Approval/Federal Register Citation

20.2.74.400 NMAC - Permits- Prevention of Significant Deterioration November 26, 2010 at 75 FR 72688

5. Adequate personnel, funding, and authority : Section 110(a)(2)(E ) requires states to provide for adequate personnel, funding, and legal authority under state law to carry out its SIP
and related issues.

The State’s response : In its submittal for the 1997 PM 2.5 NAAQS, the State of New Mexico indicated that New Mexico state statute, NMSA 1978, section 74-7-5 requires the state’s Environmental Improvement Board to comply with the requirements of the federal Clean Air Act and its associated standards, regulatio ns and state implementing directives.

EPA analysis : Each SIP must show that the state has legal authority to ca rry out the plan (40 CFR 51.230). The Air Quality Control Act delegate s authority to the EIB to adopt, promulgate, publish, amend and repeal regulations consistent w ith the Air Quality Control Act to attain and maintain national ambient air quality standards and prevent or abate air pollution (see NMSA 1978 74-2-5(B)(1)). The Environmental Impr ovement Act codified at NMSA 1978 74-1, provides the NMED with the power, “to enforce the rules, regulations and orders promulgated by the board ...” (see NMSA 1978 74-1-6(F)). The Ai r Quality Control Act also gives the NMED the duty to “develop and present to the environm ental improvement board or the local board a plan for the regulation, control, prevention or abatement of air pollution ...” and gives the EIB the authority to adopt such a plan (see NM SA 1978 74-2-5.1(H) and NM SA 1978 74-2-5(B)(2)) . The New Mexico statutes were approved in to the New Mexico SIP on May 31, 1972 (37 FR 10881) and subsequent revisions were last approved into the SIP on November 2, 1984 (49 FR 44101). Therefore, the State has demonstrated it has adequate authority under its rules and regulations to carry out its SIP obligations with respect to the 1997 8-hour ozone and PM 2.5 NAAQS. To address adequate funding, the Air Quality Control Act names the NMED as the state air pollution control agency for all purposes under federal legisl ation relating to air pollution and provides the NMED with the power, “to accept, recei ve and administer gran ts or other funds or gifts from public and private agencies, including the federal government, or from any person ....” (see NMSA 1978 74-2-5.1(F)). In addition, th e NMED annually receives Federal funds,

46 As explained in section II, subsection C of this TSD, New Mexico’s PSD program was conditionally approved into the SIP on February 27, 1987 (52 FR 5964). Today, we propose to convert the conditional approval to a full approval on the basis of our November 2, 1988 approval of New Mexico’s April 26, 1988 submittal to include in the SIP a new regulation on stack height requirements to satisfy the federal requirements of 40 CFR Part 51. Subsequent revisions to New Mexico’s PSD program were approved into the SIP on August 21, 1990 (55 FR 34013), May 2, 1991 (56 FR 20137), October 15, 1996 (61 FR 53639), March 10, 200 3 (68 FR 11316), December 24, 2003 (68 FR 74483), September 5, 2007 (72 FR 50879), and November 26, 2010 (75 FR 72688).Page 23 of 34 authorized pursuant to secti ons 103 and 105 of the Act. The section 103 funds support specific, non-recurring projects w ithin the air program, thus the amount of funding can vary widely from year to year. The section 105 funds support th e foundation of the State’s air quality program, including the air monito ring network and annual air quality program activities. The section 105 funding levels are relatively cons istent, varying not more than about 18% from year to year. 47
The 105 funds require a 40% match from the State, while the 103 funds do not require a match. In fiscal year 2010 (FY10), New Mexico received $1,499,889 in 105 funds 48 and successfully completed all of their ai r program obligations. Finally, this section of the Act, in part, requires that a state provide for necessary assurances that they have adequate personnel to implement the SIP. New Mexico under State statute is required to employ su fficient personnel to carry out this SIP. The Department of the Environment Act provides that the secretar y of the NMED “shall... employ and fix the compensation of those persons necessary to di scharge his duties...” See NMSA 1978 9-7A6(B). This provision assures th at New Mexico is statutorily required to retain adequate personnel to implement this SIP. Regarding adequate authority to issue permits under the SIP approved PSD program to sources of GHGs, EPA in its final PSD SI P Narrowing Rule, promulgated December 30, 2010 (75 FR 82536), withdrew its previous approval of New Mexico’s PSD program to the extent it applies PSD to GHG-emitting sources below the thre sholds in the final PSD Tailoring Rule. The PSD Tailoring Rule, which EPA promulgate d June 3, 2010 (75 FR 31514), implemented thresholds establishing applicability of th e PSD permitting program to GHG-emitting sources only if they emit GHGs in amounts above th e 75,000/100,000 tpy of carbon dioxide equivalent (denoted CO2e). Thus sources in affected states, including New Mexico, will not be subject to federal or state requirements to obtain permits at the lower 100/250 tpy level. The Tailoring Rule thresholds were designed to relieve th e overwhelming administrative burdens and costs associated with the dramatic increase in permitting burden that would have resulted from applying PSD at the statutor y levels (100/250 tpy) on January 2, 2011. On November 10, 2010, New Mexico adopted revisions to the State’s PSD rules to implement the GHG thresholds established in EPA’s GHG Tailoring rule and submitted the corresponding SIP revision to EPA on December 1, 2010. On April 14, 2011, EPA proposed approval of New Mexico’s GHG rules submitted on December 1, 2010 (76 FR 20907). EPA intends to take final action on the December 1, 2010 submittal in a separate rulema king no later than EPA’s final action on New
Mexico’s 1997 ozone and PM 2.5 infrastructure SIP submittals. Additionally, the NMED submitted a clarification letter to EPA on Apr il 19, 2011, clarifying that the portion of the PSD program in the State’s submittal under review for these infrastructure SIP requirements is the portion that remained approved afte r EPA’s promulgation of the Narrowing Rule. This letter is in the docket for this rulemaking. We are therefore proposing that the New Mexi co SIP meets the requirements of section 110(a)(2)(E) with respect to the 1997 8-hour ozone and PM 2.5 NAAQS, including the requirements of the GHG component of the PSD program.

47 For FY08, FY09, and FY10, New Mexi co received $1,508,362; $1,243,792; and $1,499,88 9 in 105 funds for each fiscal year, respectively.

48 The State’s FY10 budget for air quality programs was a pproximately $2,499,832. $2,499,832 x (.4) = $999,933, which would be the State’s match or share of program funds. $2,499,832 - $999,933 = $1,499,899.Page 24 of 34 6. Stationary source emissions monitoring and reporting : Section 110(a)(2 )(F) requires, as may be prescribed by the Administrator, (i) th e installation, maintenance and replacement of equipment, and the implementation of other necessary steps, by owners or ope rators of stationary
sources to monitor emissions from such source s, (ii) periodic reports on the nature and amounts
of emissions and emissions-related data from such sources, and (iii) correlation of such reports by the State agency with any emission limitations or standards established pursuant to this Act, which reports shall be available at reasonable times for public inspection.

The State's response : In its submittal for the 1997 PM 2.5 NAAQS, the State of New Mexico
indicated that the New Mexico regulatory requirements have been codified in 20.2.72 NMAC ( Construction Permits ), 20.2.70 NMAC ( Operating Permits ), and 20.2.79 NMAC ( PermitsNonattainment Areas ). The State indicated that requirements in 20.2.7.73 NMAC ( Notice of Intent and Emission Inventory Requirements ) provide for the reporting of emissions inventories in a format established by the NMED on a schedul e set forth in the regula tion. Furthermore, the State indicated that maintenance plans for the 8-hour ozone NAAQS submitted by New Mexico abide by the requirements of the CAA section 11 0(a)(1). New Mexico also asserted that
enforceable emission limitations and other cont rol measures are covered in the State’s Air Quality Control Act and those provisions of 20.2 NMAC. The State indi cates that 20.2.5 NMAC ( Source Surveillance ) establishes the general requirements for maintaining and reporting records on emissions, including recordkeeping, data subm issions, and public access to emission data.

EPA analysis : New Mexico’s regulations at 20.2 NMAC parts 5, 7-8, 10-20, 30-34, 40-41, and 72-74 require monitoring for compliance, re cordkeeping and reporting, and provide for enforcement with respect to all the NAAQS and their precursors. These source monitoring program requirements generate data for ozone and PM 2.5 and their precursor s. See Table 5
below. Under the New Mexico SIP rules, the NMED is required to analyze the emissions data from point, area, mobile, and biogenic (natural) sources. The NMED uses this data to track progress towards maintaining the NAAQS, develop control and maintenance strategies, identify sources and general emission levels, and dete rmine compliance with New Mexico and EPA requirements. The State’s emissions da ta are available on the NMED website ( http://www.nmenv.state.nm.us ). These rules have been approved by EPA into the SIP. A list of these rules and Federal Register citations is provided below. The National Emissions Inventory (NEI) is EPA’s central repository for air emissions data. EPA published the Air Emissions Repor ting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emi ssions data from 17 to 12 months, giving states one calendar year to submit emissions data. Al l states are required to submit a comprehensive emissions inventory (EI) every three years and report emissions for certain larger sources annually through EPA’s online Emissions Inventory Sy stem (EIS). States report emissions data for the six criteria pollutants and the precursors that form them – NOx, SO 2 , ammonia, lead, carbon monoxide, PM, and VOCs. Many states al so voluntarily report emissions of hazardous air pollutants. EPA compiles the emissions data , supplementing it where n ecessary, and releases it to the general public through the website www.epa.gov/ttn/chief/eiinformation.html

. There are two additional requirements that New Mexico must meet regarding emissions inventories: the EI requireme nt for nonattainment areas, and the requirement to submit annualPage 25 of 34 EI data to EPA’s NEI database. Because nona ttainment NSR is outside the scope of this rulemaking, we are not addressing New Mexico’s EI for nonattainment areas in this proposed action. Regarding the requirement to submit annual EI data to EPA, the NMED is current with their submittals to the NEI database; the 2008 da ta was submitted to EPA in 2010. The State’s
emissions data are also avai lable on EPA’s AirData website, which provides access to air pollution data for the entire United States and can produce reports and maps of air pollution data based on criteria specified by the user (see www.epa.gov/air/data/index.html ). We are proposing that the New Mexico SIP meets the requirements of section 110(a)(2)(F) with respect to the 1997 8-hour ozone and PM 2.5 NAAQS. We note the following parts within the State SI P as relevant to meet the requirements of section 110(a)(2)(F):

20.2 NMAC
Part 5 Source Surveillance
Part 7 Excess Emissions Part 8 Emissions Leaving New Mexico
Part 10 Woodwaste Burners Part 11 Asphalt Process Equipment
Part 12 Cement Kilns Part 13 Gypsum Processing Plants
Part 14 Particulate Emissions from Coal Burning Equipment Part 15 Pumice, Mica and Perlite Process Equipment Part 16 Nonferrous Smelters (New and Existing)- Particulate Matter
Part 17 Nonferrous Smelters (Existing)- Particulate Matter
Part 18 Oil Bu rning Equipment- Particulate Matter Part 19 Potash, Salt or Sodi um Sulfate Processing Equi pment- Particulate Matter
Part 20 Lime Ma nufacturing Plants- Pa rticulate Matter
Part 30 Kraft Mills
Part 31 Coal Burning Equipment- Sulfur Dioxide
Part 32 Coal Burning Equipment- Nitrogen Dioxide

Part 33 Gas Bu rning Equipment- Nitrogen Dioxide
Part 34 Oil Burning Equipment- Nitrogen Dioxide
Part 40 Sulfur ic Acid Production Units- Sulfur Dioxide , Acid Mist and Visible Emissions
Part 41 Nonferrous Smelters- Sulfur
Part 72 Construction Permits
Part 73 Notice of In tent and Emissions Inventory Requirements
Part 74 Permits- Prevention of Significant Deterioration

Table 5: New Mexico rules relevant to meeting section 110(a)(2)(F):

Relevant Section of New Mexico’s SI P EPA Approval/Federal Register

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

20.2.7 NMAC - Excess Emissions September 14, 2009 at 74 FR 46910 20.2.8 NMAC - Emissions Leaving New
Mexico September 26, 1997 at 62 FR 50514

20.2.10 NMAC - Woodwaste Burners Se ptember 26, 1997 at 62 FR 50514 20.2.11 NMAC - Asphalt Process Equipment September 26, 1997 at 62 FR 50514Page 26 of 34 20.2.12 NMAC - Cement Kilns September 26, 1997 at 62 FR 50514 20.2.13 NMAC - Gypsum Processing Plants September 26, 1997 at 62 FR 50514

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

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

20.2.16 NMAC - Nonferrous Smelters (New and Existing)- Particulate Matter September 26, 1997 at 62 FR 50514

20.2.17 NMAC - Nonferrous Smelters (Existing)- Particulate Matter September 26, 1997 at 62 FR 50514

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

20.2.19 NMAC - Potash, Salt or Sodium Sulfate Processing Equipment- Particulate

Matter September 26, 1997 at 62 FR 50514

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

20.2.30 NMAC - Kraft Mills September 26, 1997 at 62 FR 5051420.2.31 NMAC - Coal Burning EquipmentSulfur Dioxide September 26, 1997 at 62 FR 50514

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

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

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

20.2.40 NMAC - Sulfuric Production UnitsSulfur Dioxide, Acid Mist and Visible
Emissions September 26, 1997 at 62 FR 50514

20.2.41 NMAC - Nonferrous Smelters- Sulfur September 26, 1997 at 62 FR 50514 20.2.72 NMAC - Construction Permits September 26, 1997 at 62 FR 50514

20.2.73 NMAC - Notice of Intent and Emissions Inventory Requirements August 12, 2010 at 75 FR 48860

20.2.74 NMAC - Permits- Prevention of Significant Deterioration November 26, 2010 at 75 FR 72688

7. Emergency power : Section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial enda ngerment to public healt h, including adequate contingency plans to implement the emerge ncy episode provisions in their SIPs.

The State's response : In its submittal for the 1997 PM 2.5 NAAQS, the State of New Mexico indicated that New Mexico has adopted an Ai r Pollution Episode Contingency Plan (56 FR 38074, August 12, 1991), 49 that covers air pollution epis odes and the occurrence of an

49 The State erred in providing the date and Federal Register citation for EPA’s approval of New Mexico’s Air Pollution Episode Contingency Plan. The date and Federal Register citation the State provided in their submittal isPage 27 of 34 emergency due to the effects of the pollutants on the health of persons. New Mexico also indicated that they plan to revise their Air Pollution Episode Conti ngency Plan to include significant harm levels for PM 2.5 once EPA finalizes a rule establishing these.

EPA analysis : The NMED has authority to formulat e contingency plans for environmental emergencies, pursuant to the Air Quality Control Act and has authority to issue cease and desist orders as provided in NMSA 1978 74-2-10, wh ich provides enforcement authority.. We compared the State’s Air Pollution Epis ode Contingency Plan to 40 CFR 51 Subpart H – Prevention of Air Pollution Emergency Epis odes and Appendix L to Part 51 - Example Regulations for Prevention of Air Pollution Emergency Episodes. Subpart H provides a classification system for episode plans. Each re gion in a state is classified separately with respect to each of the following pollutants: sulfur dioxide, PM, carbon monoxide, nitrogen dioxide, and ozone (40 CFR 51.150). An area classified as a Priority I region for ozone has ambient concentrations greater than 195 micrograms per cubic meter (denoted μg/m 3 ) or 0.10 ppm for a 1-hour maximum. The regulations do not establish Prio rity II regions for ozone. Areas that do not meet the criteria for Priority I for ozone are classified Priority III. For PM, a Priority I region has ambient con centrations greater than 95 μg/m 3 annual geometric mean or 325 μg/m 3 for a 24-hour maximum. A Priority II region is any area which is not a Priority I region and has ambient concentrations between 60–95 μg/m3 annual geometric mean or 150–325 μg/m 3
for a 24-hour maximum. A Priority IA Region is any area which is Priority I primarily because of emissions from a single point sour ce. Areas that do not meet the cr iteria for Priority I or II are classified Priority III. Table 6 below summarizes the classification for ozone and PM. Note that a classification scheme for 8-hour ozone is not addressed under Subpart H and while the table does not identify whether PM refers to PM 10 or PM 2.5 , the date of promulgation for Subpart H would support PM 10 (November 7, 1986, 51 FR 40668), as amended on July 20, 1993 (see 58 FR 38822).

Table 6: Classification of Regions for Ep isode Plans for Ozone and Particulate Matter (40 CFR 51.150) Parameter Priority I Priority II Priority III

Ozone Ambient concentrations > 195 μg/m 3 (0.10 ppm)
1-hour maximum Not defined Areas which do not
meet the criteria for Priority I

Particulate

matter Ambient concentrations > 95 μg/m 3 annual geometric mean; 325 μg/m 3

24-hour maximum Ambient
concentrations between 60-95 μg/m 3
annual geometric mean; 150-325 μg/m 3

24-hour maximum. Areas which do not
meet the criteria for Priority I or II

The significant harm level (SHL) for the 8- hour ozone NAAQS will remain unchanged as 0.6 parts per million (ppm) ozone, 2-hour average, as indicated in 40 CFR 51.151. EPA believes that the existing ozone-related provisions of 40 CFR Subpart H remain appropriate. Therefore,

for EPA’s approval of Albuquerque-Bernalillo County’s Air Pollution Episode Contingency Plan, and applies only within the boundaries of Bernalillo County (including the City of Albuquerque). EPA approved New Mexico’s Air Pollution Episode Contingency Plan on August 21, 1990 (55 FR 34013).Page 28 of 34 EPA expects that for purposes of the 1997 8- hour ozone NAAQS, states need only to confirm that they have existing emergency episode pl an provisions consistent with EPA’s existing regulatory requirements. 50
The New Mexico Air Pollution Episode C ontingency Plan addresses the pollutants specified under 40 CFR 51.150. Using 2006-2010 cer tified ambient air quality monitoring data, 51 we determined that areas within New Mexico meet the classificati on for Priority 1 for 1- hour ozone and Priority III for part iculate matter. We found that the provisions in New Mexico’s Air Pollution Episode Contingency Plan are consistent with those of 40 CFR 51.151 and 152, and Appendix L to Part 51. The State's Air Po llution Episode Contingency Plan was approved into the New Mexico SIP (see 55 FR 34013, Augus t 21, 1990). As discussed in section II, subsection A, today we are also proposing to make a CF R codification technical correction to
amend the table titled “EPA Approved Nonregulatory Prov isions And Quasi-Regulatory
Measures In The New Mexico SIP” under 40 CFR 52.1620(e), to include an entry for the New Mexico Air Pollution Episode Contingency Pl an approved by EPA into the SIP on August 21, 1990 (55 FR 34013, 40 CFR 52.1639(a)). EPA is pr oposing to make this CFR codification
technical correction because it clarifies that EPA previously approved the State’s air pollution episode provisions into the New Mexico SIP. While the State has appropriate gene ral emergency powers to address PM 2.5 related episodes, SHLs for PM 2.5 are not provided under Subpart H, nor have SHLs for the 1997 PM 2.5 standards been proposed by EPA. The New Me xico SIP has not been revised to address contingency plans for PM 2.5 . To evaluate whether the Ne w Mexico SIP provides adequate contingency plans for the 1997 PM 2.5 NAAQS, EPA used guidance issued in 2009 for the 2006

PM 2.5 NAAQS. 52, 53 The 2009 Guidance for PM 2.5 recommends that a st ate with at least one
monitored 24-hour PM 2.5 value exceeding 140.4 μg/m 3 since 2006 establish an emergency episode plan and contingency measures to be im plemented should such level be exceeded again. Additionally, the 2009 Guidance for PM 2.5 recommends that if no area of a state has exceeded this 140.4 μg/m 3 level since 2006 and the state has appr opriate general emergency powers to
address PM 2.5 related episodes, then no specific emergenc y episode plans are necessary at this time given the existing monitored leve ls. The 2006-2010 data for New Mexico 54 do not exceed 140.4 μg/m 3 and have consistently remain ed below the level of 140.4 μg/m 3 . In fact, these data
indicate that New Mexico’s PM 2.5 levels have stayed below 55 μg/m 3 . In addition, Subpart H at 51.153 provides for reevaluation of episode plans and requires that, “Sta tes should periodically reevaluate priority classifications of all Regions or portion of Re gions within their borders. The
reevaluation must consider the three most recen t years of air quality da ta. If the evaluation indicates a change to a higher pr iority classification, appropriate changes in the episode plan must be made as expeditiously as practicable.” New Mexico’s data does not indicate a change to

50 October 2, 2007 Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone
and PM 2.5 NAAQS, Memorandum from William T. Harnett, Director, Air Quality Policy Division, OAQPS.

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

52 “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standard s (NAAQS)”, September 29, 2009 memorandum from William T. Harnett, Director, Air Quality Policy Division to Regional Air Division Directors.

53 On October 17, 2006, EPA revised the 24-hour PM 2.5 NAAQS from 65 μ g/m 3 to 35 μ g/m 3 (see 71 FR 61144).

54 The ozone and PM data are available through AQS. The 2006-2009 AQS data for PM 2.5 are provided in the docket for this rulemaking. The 2006-2009 data is certified da ta; the 2010 data is preliminary data, as 2010 data is not required to be certified until May 1, 2011.Page 29 of 34 a higher priority, but suggests that emergency episode plans for the PM 2.5 NAAQS are not
needed at this time. We are proposing that the New Mexico SIP meets the requirements of section 110(a)(2)(G) with respect to the 1997 8-hour ozone and PM 2.5 NAAQS.

8. Future SIP revisions : Section 110(a)(2 )(H) requires states to have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining NAAQS, or in response to an EPA finding th at the SIP is substantially inadequate.

The State’s response : In its submittals, the NMED did not specifically address how the New
Mexico SIP satisfies this particular requirement of section 110(a)(2)(H).

EPA analysis : The Air Quality Control Act and the Environmental Improvement Act authorize the NMED as the primary agency in the state concerned with environm ental protection and enforcement of regulations, including but not limited to air quality (NMSA 1978 74-1 and NMSA 1978 74-2). The Air Quality Control Act gives the NMED the authority to “develop and present to the environmental improvement board a plan for the control, regulation, prevention or abatement of air pollution...,” a nd authorizes the EIB to adopt such a plan (see NMSA 1978 74- 2-5.1(H) and NMSA 1978 74-2-5(B)(2)). The Air Quality Control Act also authorizes the New Mexico Environmental Improvement Board to “adopt, promulgate, publish, amend and repeal regulations consistent with the Air Quality C ontrol Act to attain and maintain the national ambient air quality standards a nd prevent and abate air polluti on .... ,” and the Environmental Improvement Act authorizes the NMED to en force such rules, regulations and orders promulgated by the EIB (see NMSA 1978 74-2- 5(B)(1) and NMSA 1978 74-1-6(F)). Furthermore, the Air Quality Control Act require s the NMED to, “... advise, consult, contract with and cooperate with local authorities, other states, th e federal government and other interested persons or groups in regard to matters of common intere st in the field of air quality control...” (see NMSA 1978 74-2-5.2(B)). Thus, New Mexico has the authority to revise its SIP, as may be necessary to account for revisi ons of the NAAQS, adopt more effective methods of attaining the NAAQS, and respond to EPA SIP calls. We are proposing that the New Mexico SIP meets the requirements of section 110(a)(2)(H) with respect to the 1997 8-hour ozone and PM 2.5 NAAQS.

9. Consultation, public notice, and PSD and visibility protection : 55 Section 110(a)(2)(J) requires states to provide a pr ocess for consultation with local governments and Federal Land Managers carrying out NAAQS implementation requi rements pursuant to section 121 relating to consultation. Section 110(a)(2 )(J) further requires states to notify the public if NAAQS are exceeded in an area and to enhance public awaren ess of measures that can be taken to prevent exceedances. Section 110(a)(2)(J) also requires Stat es to meet applicable requirements of Part C related to prevention of significant dete rioration and visibi lity protection.

The State's response : Regarding PSD and visibility protec tion, New Mexico indicated that the State has adopted 20.2.74 NMAC ( Permits- Prevention of Significant Deterioration ) following

55 Section 110(a)(2)(J) is divided into three components: Consultation with government officials; public notification; and PSD and visibility protection.Page 30 of 34 the requirements outlined in 40 CFR 52 under se ction 161 of the CAA (42 U.S.C.A. section 7471). The State indicated that these provisions were approved by EPA as part of the SIP.

EPA analysis : Regarding consultation with government officials and public notification, the Air Quality Control Act, codified at NMSA 1978 74- 2, provides that “no re gulations or emission control requirement shall be adopted until after a public hearing by the environmental improvement board or the local board” and provi des that, “at the hearing, the environmental improvement board or the local boa rd shall allow all interested pe rsons reasonable opportunity to submit data, views, or arguments orally or in writing and to examine witnesses testifying at the hearing” (see NMSA 1978 74-2-6(B) and (D)). In addition, the Air Quality Control Act provides that the NMED shall have the pow er and duty to “advise, consult, contract with and cooperate with local authorities, other stat es, the federal government and ot her interested persons or groups in regard to matters of common interest in the field of air qualit y control...” (see 1978 74-2- 5.2(B)). The State’s PSD rules at 20.2.74.400 NMAC mandate that the NMED shall provide for public participation and notification regarding perm itting applications to any other state or local air pollution control agen cies, local government officials of the city or county where the source will be located, and FLMs whose lands may be affected by emissions from the source or modification. The State’s PSD rules at 20.2.74.403 NMAC require the NMED to consult with FLMs regarding permit applications for sources impacting Class I Federal areas. 56 Furthermore,
the State of New Mexico has committed in the SIP to consult continually with the FLMs on the review and implementation of the visibility program, and the State recognizes the expertise of the FLM in monitoring and new source review applicabili ty analyses for visibility and has agreed to notify the FML of any advance notification or ear ly consultation with a major new or modifying source prior to the submissi on of the permit application. 57 The State’s Transportation Conformity rules at 20.2.99.116 and 20.2.99.124 NMAC require that interagency consultation and opportunity for public involv ement be provided before ma king transportation conformity determinations and before adop ting applicable SIP revisions on transportation-related SIPs. 58
These rules are in the Federally-approved SIP. We are proposing that the New Mexico SIP meets the requirements of this por tion of section 110(a)(2)(J) with respect to the 1997 8-hour ozone and

PM 2.5 NAAQS. Section 110(a)(2)(J) further requ ires states to notify the pub lic if NAAQS are exceeded in an area and to enhance public awareness of measur es that can be taken to prevent exceedances. Provisions regarding public notif ication of instances or areas in which any primary NAAQS was exceeded were approved into the New Mexico SIP on August 24, 1983 (48 FR 38466). In addition, the NMED air monitoring website provid es live air quality data for each of the monitoring stations in New Mexico. 59 The website also provides information on the health effects of ozone, particulate matter, and other cr iteria pollutants. We are proposing that the New Mexico SIP meets the requirements of this porti on of section 110(a)(2)(J) with respect to the
1997 8-hour ozone and PM 2.5 NAAQS. Regarding PSD and visibility protection, se ction 110(a)(2)(J) requires States to meet applicable requirements of Part C related to PSD and visibility pr otection. As detailed in the subsection addressing the requi rements of section 110(a)(2)( C) above, New Mexico’s PSD

56 See 75 FR 72688, published November 26, 2010 and 72 FR 50879, published September 5, 2007.

57 See 71 FR 4490, published January 27, 2006.

58 See 65 FR 14877.

59 Please see http://air.nmenv.state.nm.us/

.Page 31 of 34 program was conditionally approved into th e SIP on February 27, 1987 (52 FR 5964). New
Mexico has since then met the conditions of our conditional approval, so we are proposing to convert our conditional approval into a full approval. The State’s PSD program is in the SIP (52 FR 5964, 53 FR 44191, 55 FR 43013, 56 FR 20137, 61 FR 53639, 68 FR 11316, 68 FR 74483, 72 FR 50879, and 75 FR 72688). EPA approved New Mexico’s Visibility Protection Plan and approved a Long-Term Strategy for Visibility Pr otection into the New Mexico SIP on January 27, 2006 (71 FR 4490). With regard to the applicab le requirements for visibility protection, EPA recognizes that states are subj ect to visibility and regiona l haze program requirements under
sections 169A and 169B of the Act. In the event of the establis hment of a new NAAQS, however, these visibility and regional haze progr am requirements do not change. Thus, we find
that there is no new visibili ty obligation triggered under se ction 110(a)(2)(J) when a new NAAQS becomes effective. We are proposing th at the New Mexico SIP meets the requirements of this portion of section 110(a)(2)(J) with respect to the 1997 8-hour ozone and PM 2.5 NAAQS.

10. Air quality modeling a nd submission of data : Section 110(a)(2)(K ) requires that SIPs provide for performing air quality modeling for predicting effect s on air quality of emissions from any NAAQS pollutant and submissi on of such data to EPA upon request.

The State’s response : The State indicated that New Me xico has developed Air Dispersion Modeling Guidelines that follow EPA guidelines for air dispersion modeling and that also include some internal policy language.

EPA analysis : The NMED has the power and duty, under the Air Quality Control Act to “develop facts and make investigations and st udies,” thereby providing for the functions of environmental air quality assessment (NMSA 1978 74-2-5). Modeling and emissions reductions measures have been submitted by the State and approved into the SIP. For example, we reference the air modeling and control measures submitted within the Attainment Demonstration for the San Juan County Early Action Compact Ar ea, approved by EPA and adopted into the SIP on August 17, 2005 (70 FR 48285). 60 This section of the Act also requires that a SIP provide for
the submission of data related to such air quality modeling to the EPA upon request. The Air Quality Control Act authorizes NMED to coopera te with the federal gove rnment in regard to matters of common interest in the field of air qu ality control, thereby allowing it to make this submission to the EPA (see NMSA 1978 74-2-5.2(B)). We are proposing that the New Mexico SIP meets the requirements of section 110(a)(2)(K) with respect to the 1997 8-hour ozone and PM 2.5 NAAQS.

11. Permitting fees : Section 110(a)(2)(L) requ ires SIPs to require each major stationary source to pay permitting fees to cover the cost of re viewing, approving, implementing and enforcing a permit.

The State's response : The State indicated that th e fee requirements of 20.2.71 NMAC ( Operating Permit Emission Fees ) and 20.2.75 NMAC ( Construction Permit Fees ) were approved by EPA as meeting the CAA requirement s and were incorporated into New Mexico’s

60 The docket for this San Juan County rulemaking action is available through www.regulations.gov . The docket ID
is EPA-R06-OAR-2005-NM-0002.Page 32 of 34 SIP (11/25/97, 62 FR 50514). Th e State also indicates that New Mexico’s Title V operating permit program in 20.2.70 NMAC was appr oved by EPA in 1997 (11/25/97, 62 FR 50514). 61

EPA analysis : The Air Quality Control Act provides the EIB with the legal authority for establishing an emission fee schedule and a c onstruction permit fee sc hedule to recover the reasonable costs of acting on permit applicatio ns, implementing, and enforcing permits (NMSA 1978 74-2-7). New Mexico’s Permit Fee System was approved by EPA into the SIP on July 17, 1991 (56 FR 32511). New Mexico’s Permit Fee System implements a fee system for all preconstruction air permits issued by NMED. Ne w Mexico’s regulations for construction permit fees are found at 20.2.75 NMAC. Operating pe rmits, also known as Title V operating permit programs (see footnote 22, on p. 6 above) and associated fees legally are not part of the SIP, but were approved by EPA on November 26, 1996 (61 FR 60032) as part of the New Mexico Title V Program. We are proposing that the New Mexico SIP meets the requirements of section 110(a)(2)(L) with respect to the 1997 8-hour ozone and PM 2.5 NAAQS.

12. Consultation/participation by affected local entities : Section 110(a)(2)(M) requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.

The State’s response : In its submittals, the NMED did not specifically address how the New Mexico SIP satisfies this particular requirement of sec tion 110(a)(2)(M).

EPA analysis : As described under the section ad dressing the requirements of element 110(a)(2)(J) above, regarding consultation with g overnment officials and public notification, the Air Quality Control Act provides that, “no regulations or emissi on control requirement shall be adopted until after a public hearing by the envi ronmental improvement boa rd or the local board” and provides that, “at the heari ng, the environmental improvement board or the local board shall allow all interested persons reas onable opportunity to submit data, views, or arguments orally or in writing and to examine witnesses testifyi ng at the hearing” (see NMSA 1978 74-2-6(B) and (D)). In addition, the Air Qualit y Control Act provides that the NMED shall have the power and duty to “advise, consult, contract with and cooperate with local authorities, other states, the federal government and other interested person s or groups in regard to matters of common
interest in the field of air quality control...” (see NMSA 1978 74-2-5.2(B)). New Mexico’s PSD regulations at 20.2.74.400 NMAC mandate that the NMED shall provide for public participation and notification regarding permitting applications to any other state or local air pollution control agencies, local government officials of the city or county where the source will be located, and FLMs whose lands may be affected by emissi ons from the source or modification. New

61 The date and Federal Register citation provided by New Mexico is for the rulemaking in which we made a CFR codification error in 40 CFR 52.1620(c) by in correctly including entries in the table titled “EPA Approved New Mexico Regulations” for part 70 ( Operating Permits ) and part 71 ( Operating Permit Emission Fees ) of 20.2 NMAC. As explained in section II, subsection B of this TSD, part 70 and part 71 of 20.2 NMAC constitute New Mexico’s Title V permitting program and the associated permitting fees, respectively. New Me xico’s Title V permitting program is outside the scope of the New Mexico SIP, and parts 70 and 71 of 20.2 NMAC are State regulations that have not been approved into the New Mexico SIP. As explained in section II, subsection B, today EPA is also proposing to make CFR technical corrections by amending 40 CFR 52.1620(c) and 40 CFR 52.1640(c)(66)(i)(B), to make clear that New Mexico’s Title V permitting program has not been approved by EPA into the New Mexico SIP.Page 33 of 34 Mexico’s Transportation Conformity re gulations at 20.2.99.116 and 20.2.99.124 NMAC require that interagency consultation a nd opportunity for public involveme nt be provided before making transportation conformity determinations and before adopting applic able SIP revisions on transportation-related SIPs. 62 These rules are in the fe derally-approved SIP. We are proposing that the New Mexico SIP meets the requirements of section 110(a)(2)(M) with respect to the 1997 8-hour ozone and PM 2.5 NAAQS.

IV. EPA’s Recommendation

We reviewed New Mexico’s submittals, SI P, and air quality data for ozone and PM 2.5 for compliance with the requirements of sections 110(a)(1) and (2) of the Act for the 1997 8-hour
ozone and PM 2.5 standards. We recommend that EP A propose to approve the submittals provided by the State of New Mexico to dem onstrate that the New Mexico SIP meets the requirements of sections 110(a)(1 ) and (2) of the Act with resp ect to the 1997 8-hour ozone and

PM 2.5 standards. These submittals address the infrastructure elements specified in the CAA section 110(a)(2), necessary to implement, maintain, and enforce the 1997 8-hour ozone and 1997 fine particulate matter (PM 2.5 ) NAAQS.

We recommend approval of the New Mexico SIP for the following elements : Emission limits and other control measures: Section 110(a)(2)(A) Ambient air quality monitoring/dat a system: Section 110(a)(2)(B) Program for enforcement of contro l measures: Section 110(a)(2)(C) Interstate transport: Section 110(a) (2)(D)(ii) Adequate resources: Section 110(a)(2)(E) Stationary source monitoring system: Section 110(a)(2)(F) Emergency power: Section 110(a)(2)(G) Future SIP revisions: Section 110(a)(2)(H) Consultation with government of ficials: Section 110(a)(2)(J)
Public notification: Section 110(a)(2)(J) PSD and visibility protectio n: Section 110(a)(2)(J) Air quality and modeling/da ta: Section 110(a)(2)(K) Permitting fees: Section 110(a)(2)(L) Consultation/particip ation by affected local enti ties: Secti on 110(a)(2)(M)

We recommend making CFR codification tec hnical corrections to amend the following:

1. The table titled “EPA Approved Nonregulatory Provisions And Quasi-Regulatory
Measures In The New Mexico SIP

, ” found under 40 CFR 52.1620(e), by including an entry for New Mexico’s already SIP approve d Air Pollution Episode Contingency Plan.

2. The table titled “ EPA Approved New Mexico Regulations, ” found under 40 CFR 52.1620(c), by (i) deleting en tries for part 70 ( Operating Permits ) and part 71 ( Operating

Permit Emission Fees ) of 20.2 NMAC and (ii) correc ting the currently listed EPA approval date for the recodification of New Me xico’s air quality regul ations in the SIP.

3. 40 CFR 52.1640(c)(66)(i)(B), by amending the para graph such that it correctly identifies the State regulations submitted by the State and approved by EPA into the New Mexico

SIP.

62 See 65 FR 14877.Page 34 of 34 4. 40 CFR 52.1634(a) and 40 CFR 52. 1640(c)(39), by amending each paragraph such that it identifies that New Mexico has fully me t all conditions of our February 27, 1987 conditional approval of New Mexico’s PSD pr ogram such that our conditional approval is converted to a full approval.

We are proposing to convert our conditional approval of New Mexico’s PSD program to a full approval: We are proposing to convert our Februa ry 27, 1987, conditional approval of New Mexico’s PSD program (52 FR 5964), to a full approval based on the November 2, 1988, approval of New Mexico’s stack height regula tions (53 FR 44191), at which point New Mexico fully met the condition in the conditional approval.

We recommend approval of the following rev ision to 20.2.3 NMAC, submitted by NMED on November 2, 2006:
The revision to 20.2.3 NMAC removes the stat e ambient air quality standards from being an applicable requirement under the State’s Title V permitting program, found at 20.2.70 NMAC ( Operating Permits ). The revision also adds language to ensure that sources being issued a permit under the State’s minor source pe rmitting program, found at 20.2.72 NMAC ( Operating

Permits ), are required to continue to address the State’s ambient ai r quality standards in their application

V. References

1. Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour
Ozone and PM 2.5 NAAQS, Memorandum from William T. Ha rnett, Director, Air Quality Policy Division, OAQPS, to Air Division Directors; dated October 2, 2007.

2. Guidance on SIP Elements Required Under Section 110(a)(1) and (2 ) for the 2006 24-Hour Fine Particle (PM 2.5 ) NAAQS, Memorandum from William T. Harnett, Director, Air Quality Policy Division, OAQPS, to Regional Air Divi sion Directors, da ted September 29, 2009.