New Mexico State Implementation Plan Elements 

Required Under Section 110(a)(2) for the 

1997 8-hour Ozone and Fine Particulate Matter (PM2.5) 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 proposed and not required under section 110(a)(2) 

A. CFR Codification Technical Correction to 40 CFR 52.1620(e) 

B. CFR Codification Technical Corrections to 40 CFR 52.1620(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 CFR Codification Technical Corrections to 40 CFR 52.1634(a) and 

 40 CFR 52.1640(c)(39) 

D. SIP Revision to 20.2.3 NMAC, the State SIP 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, the State submittals and EPA analysis 

IV. EPA’s Recommendation 

V. References 

I. Introduction

In this technical support document (TSD), EPA is evaluating the submittals provided by 

the New Mexico Environment Department (NMED) to meet the requirements of section 

110(a)(2) of the Clean Air Act (CAA or Act) for 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 addressing 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 correct an administrative 

oversight by converting our February 27, 1987 conditional approval of New Mexico’s PSD 

program to a full approval. Please note the fact that we had not formally converted the February 

27, 1987 conditional approval to a full approval, yet this had no impact on New Mexico’s 

authority to implement the PSD program. Lastly, we are proposing to make a number of US 

Code of Federal Regulations (CFR)1

 codification technical corrections. 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 explanation of the CFR codification technical 

corrections we are proposing to make; the rationale for our proposal to convert our February 27, 

1987 conditional approval of New Mexico’s PSD program to a full approval; and our analysis of 

a submittal from the State to amend title 20, chapter 2, part 3 of the New Mexico Administrative 

Code (denoted 20.2.3 NMAC). A copy of the State’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 response, and our analysis of the State’s response. Copies of the 

State’s submittals are in the docket for this rulemaking. 

Section IV of the TSD includes our recommendation for action on each of the elements 

reviewed herein. 

 Section V of the TSD contains a list of the guidance documents cited herein. Copies of 

the guidance documents referenced are in the docket for this rulemaking. 

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

On July 18, 1997, the EPA promulgated a new 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-hour 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 PM2.5). The annual PM2.5 standard was set at 15 micrograms per cubic 

meter (μg/m3) and the 24-hour standard was set at 65 μg/m3. 

Under section 110(a)(1) and (2) of the Act, all states are required to submit plans to 

provide for the implementation, maintenance and 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 “infrastructure” elements that must be 

included in these state implementation plan (SIP) 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 PM2.5 NAAQS to EPA no later than 

June 2000.3

 However, intervening litigation over the 1997 8-hour ozone and PM2.5 NAAQS 

created uncertainty about how to proceed and many states did not provide the required 

“infrastructure” SIP submission for these newly promulgated NAAQS. 

On March 4, 2004, Earthjustice submitted a notice of intent to sue related to EPA’s 

failure to issue findings of failure to submit related to the infrastructure requirements for the 

1997 8-hour ozone and PM2.5 NAAQS. EPA entered into a consent decree with Earthjustice 

which required EPA, among other things, to complete a Federal Register notice announcing 

EPA’s determinations pursuant to section 110(k)(1)(B) of the Act as to whether each state had 

 

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 protection of public health and welfare, respectively (75 FR 2938). The final 

reconsidered ozone NAAQS have yet to be promulgated. This rulemaking does not address the 2008 ozone 

standard. 
Page 3 of 34

made complete submissions to meet the requirements of section 110(a)(2) for the 1997 8-hour 

ozone NAAQS by December 15, 2007. Subsequently, EPA received an extension of the date to 

complete this Federal Register notice until March 17, 2008, based upon agreement to make the 

findings with respect to submissions made by January 7, 2008. In accordance with the consent 

decree, EPA made completeness findings for each state based upon what the Agency received 

from each state as of January 7, 2008. With regard to the 1997 PM2.5 NAAQS, EPA entered into 

a consent decree with Earthjustice which required EPA, among other things, to complete a 

Federal Register notice announcing EPA’s determinations pursuant to section 110(k)(1)(B) of 

the Act as to whether each state had made complete submissions to meet the requirements of 

section 110(a)(2) for the 1997 PM2.5 NAAQS by October 5, 2008. 

 On March 27, 2008, EPA published findings concerning 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 concerning whether states had made the 

necessary 110(a)(2) submissions for the 1997 PM2.5 NAAQS (73 FR 62902). In this action, EPA 

determined that New Mexico had made the necessary submission that provides for the basic 

program elements specified in section 110(a)(2) of the Act necessary to implement the 1997 

PM2.5 NAAQS. 

On October 2, 2007, we issued “Guidance on SIP Elements Required Under Sections 

110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality 

Standards,” Memorandum from William T. Harnett, Director, Air Quality Policy Division, 

Office of Air Quality Planning and Standards (OAQPS).5 The guidance addresses the SIP 

elements found in 110(a)(2) with the exception 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 requirements of part D, Title I of the Act, and 

is also being addressed separately.8 The guidance states that to the extent that existing SIPs for 

ozone and PM already meet these requirements, States 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 submitted the necessary PSD SIP revision. We 

approved New Mexico’s NOx as an ozone precursor submittal on November 26, 2010 at 75 FR 72688. 

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 PM2.5 NAAQS, as required by section 110(a)(2)(D)(i). Furthermore, 

there is a consent decree in place for seven states in the western United States, including New Mexico, to meet the 

requirements of section 110(a)(2)(D)(i) with regard to the 1997 8-hour ozone and PM2.5 NAAQS (74 FR 64076, 

December 7, 2009). Under the consent decree, for each of these seven states, EPA is required to fully approve SIPs 

and/or promulgate FIPs that satisfy the four “prongs” of section 110(a)(2)(D)(i) by specified dates. For the 1997 

ozone and PM2.5 NAAQS, the requirements of section 110(a)(2)(D)(i) are being addressed separately and are not 

included in the infrastructure SIPs. 

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 necessary local nonattainment area controls are not due within 3 years after 

promulgation of a new or revised NAAQS, but rather are due at the time the nonattainment area plan requirements 

are due pursuant to section 172. These requirements are: (i) Submissions required by section 110(a)(2)(C) to the 

extent that subsection refers to a permit program as required in part D Title I of the CAA and (ii) submissions 
Page 4 of 34

On December 10, 2007, the Governor of New Mexico submitted a letter to EPA stating 

that New Mexico, through the NMED, had evaluated 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 letter to EPA, stating that the NMED had 

evaluated the existing New Mexico SIP for implementation of the 1997 PM2.5 NAAQS and 

found that the SIP does not satisfy all the requirements in sections 110(a)(1) and (2) of the CAA 

for the 1997 PM2.5 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 

PM2.5 NAAQS and also a table outlining what sections of the New Mexico SIP need to be 

revised to comply with the section 110(a)(2) requirements for the PM2.5 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 actions pertaining to the regulation of GHGs 

that, although for the most part distinct from one another, establish the overall framework for 

today’s proposed action on the New Mexico SIP. Four of these actions include, as they are 

commonly called, the “Endangerment Finding” and “Cause or Contribute Finding,” which EPA 

issued in a single final action,11 the “Johnson Memo Reconsideration,”12 the “Light-Duty Vehicle 

Rule,”13 and the “Tailoring Rule.”14 Taken together and in conjunction 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 sources to PSD requirements; and limited the 

applicability of PSD requirements to GHG sources on a phased-in basis. EPA took this last 

action in the Tailoring Rule, which, more specifically, established appropriate GHG emission 

thresholds for determining the applicability of PSD requirements to GHG-emitting sources. In 

 required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D Title I of the 

CAA. Therefore, this action does not cover these specific SIP elements. 9

 In New Mexico’s March 3, 2008 infrastructure SIP submittal, the State indicated that, at that time, the New Mexico 

SIP did not satisfy all the infrastructure requirements of section 110(a)(2) for the 1997 PM2.5 NAAQS. As explained 

in section III of this rulemaking and in the TSD, we are proposing to find that New Mexico’s current SIP now meets 

all the infrastructure requirements of section 110(a)(2) for the 1997 PM2.5 NAAQS. 10 The April 19, 2011 letter clarified the State’s December 10, 2007 infrastructure SIP submittal for the 1997 8-hour 

ozone standard; the State’s March 3, 2008 infrastructure SIP submittal for the 1997 PM2.5 standard; and the State’s 

June 12, 2009 infrastructure SIP submittal for the 2006 PM2.5 standard. The State’s April 19, 2011 letter is 

severable, as it clarifies three separate infrastructure SIP submittals. At this time, we are only proposing to take 

action on the State’s December 10, 2007, and March 3, 2008 submittals for the 1997 8-hour ozone and 1997 PM2.5 

standards. We will take action on the June 12, 2009 submittal for the 2006 PM2.5 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 Greenhouse 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 thresholds established under the 

Tailoring Rule. On November 10, 2010, New Mexico adopted revisions to the State’s PSD rules 

to implement the GHG thresholds established in EPA’s GHG Tailoring Rule and submitted the 

corresponding SIP revision to EPA on December 1, 2010. On April 14, 2011, EPA proposed 

approval of New Mexico’s GHG rules submitted on December 1, 2010 (76 FR 20907). EPA 

intends to take final action on the December 1, 2010 submittal in a separate rulemaking no later 

than EPA’s final action on New Mexico’s 1997 ozone and PM2.5 Infrastructure SIP submittals. 

Additionally, the NMED submitted a clarification letter to EPA on April 19, 2011, clarifying that 

the portions of the PSD program related to greenhouse gas permitting that remained approved 

after the promulgation of EPA’s PSD SIP Narrowing Rule satisfy sections 110(a)(2)(C) and (J) 

of the Act. As we discuss further in this 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 proposed 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 codification technical error made in the table titled 

“EPA Approved Nonregulatory Provisions And Quasi-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 method in existence at the time. When we 

changed our SIP codification method for New Mexico on July 13, 1998 (63 FR 37493), we 

added the table currently found under 40 CFR 52.1620(e), and included entries in this table for 

all EPA approved nonregulatory provisions in the New Mexico SIP, including those approved 

prior to 1998. We note that we made an error in not including the already SIP approved New 

Mexico Air Pollution Episode Contingency Plan when we added this table under 40 CFR 

52.1620(e). We are proposing to make a CFR codification technical correction to amend the 

table titled “EPA Approved Nonregulatory Provisions And Quasi-Regulatory Measures In The 

New Mexico SIP” to include an entry for the New Mexico Air Pollution Episode Contingency 

Plan approved by EPA into the SIP on August 21, 1990 (55 FR 34013, 40 CFR 52.1639(a)).17 

 

15 “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas 

Emitting-Sources in State 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 outside 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 episode provisions into the New Mexico SIP. 

B. CFR Codification Technical Corrections to 40 CFR 52.1620(c) and 40 CFR 

52.1640(c)(66)(i)(B) 

 EPA is also proposing to correct two CFR codification technical errors made in the table 

titled “EPA Approved New Mexico Regulations,” found at 40 CFR 52.1620(c).18 On October 

20, 1995, New Mexico adopted a recodification 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 the SIP on September 26, 1997 (62 FR 50514). We 

would like to clarify that when we approved the recodification of, and revisions to, the New 

Mexico SIP in the September 26, 1997 rulemaking, we made a codification error in 40 CFR 

52.1620(c) by incorrectly including entries in the table titled “EPA Approved New Mexico 

Regulations” for part 70 (Operating Permits) and part 71 (Operating Permit Emission Fees) of 

20.2 NMAC, which constitute New Mexico’s Title V permitting program and the associated 

permitting fees, respectively.20 The preamble of the September 26, 1997 rulemaking contains a 

table listing the rules submitted by New Mexico as a recodification, which EPA had reviewed 

and approved as a recodification to the New Mexico SIP (62 FR 50514, see pages 50516-17). 

This table in the preamble did not contain part 70 or part 71 of 20.2 NMAC, yet the CFR table 

found at 40 CFR 52.1620(c) and the New Mexico Identification of Plan at 40 CFR 

52.1640(c)(66)(i)(B)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 never taken any rulemaking action to approve parts 70 

and 71 into the New Mexico SIP. Therefore, New Mexico’s Title V permitting program has 

always been, and continues to be outside the scope of the New Mexico SIP.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 should be changed to September 26, 1997. EPA is 

proposing to amend the table titled “EPA Approved New Mexico Regulations,” found at 40 CFR 

52.1620(c), by deleting the entries for parts 70 and 71 of 20.2 NMAC and by changing the EPA 

approval date of the 62 FR 50514 rulemaking from the currently listed date of November 25, 

1997 to the correct date of September 26, 1997. We are also proposing to amend 40 CFR 

52.1640(c)(66)(i)(B) such that it reads as follows: “New Mexico Administrative Code, Title 20, 

 

18 New Mexico’s air quality regulations approved by EPA into the SIP, along with the State’s approval/effective 

date of the regulations, EPA’s approval date of the regulations into the SIP, and the Federal Register notice citation 

for approval into the SIP are provided under 40 CFR 52.1620(c). 

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 permit, also called a Title V operating permit, as this 

requirement comes from Title V of the Act. Most Title V permits are issued by approved State and local permitting 

authorities. These permits are often called part 70 permits because the regulations that establish minimum standards 

for State permit programs are found at 40 CFR part 70. 

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 part 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 Improvement Board on October 20, 1995, and filed 

with the State Records and Archives Center on October 30, 1995.” EPA is proposing to make 

the CFR codification technical corrections to 40 CFR 52.1640(c)(66)(i)(B) and to the table titled 

“EPA Approved New Mexico Regulations,” found under 40 CFR 52.1620(c), as indicated above, 

because it is necessary to clarify which New Mexico air quality regulations are currently 

approved into the New Mexico SIP and the EPA approval date of these regulations into the 

SIP.23

C. Conversion of our conditional approval of New Mexico’s PSD program to full 

approval and CFR Codification Technical Corrections to 40 CFR 52.1634(a) and 

40 CFR 52.1640(c)(39) 

 In reviewing the history of New Mexico’s PSD program for the purposes of the 

infrastructure SIP, we found that the State’s PSD program was conditionally approved into the 

SIP on February 27, 1987 (52 FR 5964). In the February 27, 1987 rulemaking, New Mexico’s 

PSD program was conditionally approved by EPA on the basis that (i) the State would not issue 

permits to sources that would require review under EPA’s stack height regulations because they 

would have a stack height over 65 meters or would use any other dispersion techniques, as 

defined at 40 CFR 51.1(hh); and (ii) as quickly as possible, the State would adopt and submit as 

a plan revision a regulation that is equivalent to the regulations in 40 CFR Part 51 promulgated 

to implement Section 123 of the Act, regarding stack heights. On May 14, 1985, the Governor 

of New Mexico submitted a letter in which he committed the State not to issue PSD permits to 

sources that would require review under EPA’s stack height regulations because they would have 

stack heights over 65 meters or would use any other dispersion techniques, as defined at 40 CFR 

51.1(hh).24 On April 26, 1988, New Mexico submitted as a SIP revision a new regulation on 

stack height requirements to satisfy the federal requirements of 40 CFR Part 51. On November 

2, 1988, EPA approved New Mexico’s stack height regulation into the SIP (53 FR 44191). Thus, 

condition (i) of our February 27, 1987 conditional approval of New Mexico’s PSD program was 

met when New Mexico complied with the Governor’s May 14, 1985 commitment letter in the 

interim, and condition (ii) was met when we approved New Mexico’s stack height regulations in 

the November 2, 1988 rulemaking. Therefore, upon our approval of New Mexico’s stack height 

regulations in the November 2, 1988 rulemaking, New Mexico had fully met all the conditions of 

EPA’s February 27, 1987 conditional approval of the State’s PSD program. However, due to an 

administrative oversight, EPA failed to convert the conditional approval of New Mexico’s PSD 

program into a full approval at that time. We note that the fact that EPA has not formally 

converted the conditional approval to a full approval has no impact on the State’s authority to 

implement the PSD program. Therefore, we now propose to convert our February 27, 1987 

conditional approval of the State’s PSD program to a full approval based on our approval of the 

State’s stack height regulations in the November 2, 1988 rulemaking (53 FR 44191). 

 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 meeting the requirements of part C of the Act for 

prevention of significant deterioration of air quality and as being SIP approved, but does not 

explain that we initially conditionally approved the State’s PSD program on February 27, 1987, 

and that New Mexico has since then met the conditions of our conditional approval. We are 

proposing to amend the paragraph at 40 CFR 52.1634(a) to read as follows: “The plan submitted 

by the Governor of New Mexico on February 21, 1984 (as adopted by the New Mexico 

Environmental Improvement Board (NMEIB) on January 13, 1984), August 19, 1988 (as revised 

and adopted by the NMEIB on July 8, 1988), and July 16, 1990 (as revised and adopted by the 

NMEID on March 9, 1990), Air Quality Control Regulation 707- Permits, Prevention of 

Significant Deterioration (PSD) and its Supplemental document, is approved as meeting the 

requirements of part C, Clean Air Act for preventing significant deterioration of air quality. 

Additionally, on November 2, 1988, EPA approved New Mexico’s stack height regulation into 

the SIP (53 FR 44191), thereby satisfying the conditions of EPA’s conditional approval of the 

State’s PSD program on February 27, 1987 (52 FR 5964). Therefore, the conditional approval is 

converted to a full approval when we take final action on this CFR correction.” 40 CFR 

52.1640(c)(39) currently identifies New Mexico’s stack height regulation submitted on April 26, 

1988 as having been approved into the SIP, but does not identify that this denotes that New 

Mexico has fully satisfied all conditions of our February 27, 1987 conditional approval of New 

Mexico’s PSD program. We are proposing to amend the paragraph at 40 CFR 52.1640(c)(39) to 

read as follows: “On April 26, 1988, the Governor of New Mexico submitted a revision to the 

State Implementation Plan that contained Air Quality Control Regulation No. 710- Stack Height 

Requirements, as adopted by the New Mexico Environmental Improvement Board on March 10, 

1988. Regulation No. 710 enables the State to ensure that the degree of emission limitation 

required for the control of any air pollutant under its SIP is not affected by that portion of any 

stack height that exceeds GEP or by any other dispersion technique. With EPA’s November 2, 

1988, approval of the State’s revision to the State Implementation Plan to include Regulation No. 

710 (53 FR 44191), the State has satisfied the conditions of our February 27, 1987 conditional 

approval of the State’s plan for preventing significant deterioration of air quality (52 FR 5964). 

When we take final action on this CFR correction, the conditional approval will be converted to 

a full approval.” 

 We are proposing the above CFR codification technical corrections to the paragraphs at 

40 CFR 52.1634(a) and 40 CFR 52.1640(c)(39) because we are proposing to convert our 

February 27, 1987 conditional approval of New Mexico’s PSD program to a full approval. 

D. SIP Revision to 20.2.3 NMAC, the State SIP revision submittal, and EPA analysis 

In conjunction with our proposed finding that the New Mexico SIP meets the section 

110(a)(1) and (2) infrastructure SIP elements listed above, we are also proposing to fully approve 

a severable portion of a SIP revision submitted by NMED to EPA on November 2, 2006. This 

portion of the submittal contains a revision to 20.2.3 NMAC (Ambient Air Quality Standards) 

and is not a requirement under the infrastructure SIPs, and therefore our proposed approval of 

this revision is severable from our proposed approval of New Mexico’s infrastructure SIP 

 

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 includes language in 20.2.3.9 NMAC that 

removes the state ambient air quality standards from being an applicable requirement under the 

State’s Title V permitting program, found at 20.2.70 NMAC (Operating Permits). Because New 

Mexico’s Title V program is outside the scope of the New Mexico SIP, this revision does not 

constitute a relaxation of the current New Mexico SIP. As described in subsection C of section 

II, we made a codification error in 40 CFR 52.1620(c) by incorrectly including entries in the 

table titled “EPA Approved New Mexico Regulations” for part 70 (Operating Permits) and part 

71 (Operating Permit Emission Fees) of 20.2 NMAC, which are State regulations that have not 

been approved into the New Mexico SIP. As the New Mexico Title V permitting program, 

codified at 20.2.70 NMAC, has not been approved into the New Mexico SIP, approval of the 

November 2, 2006 revision to 20.2.3 NMAC is appropriate and will not constitute a relaxation of 

the current New Mexico SIP.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 the SIP revisions we are 

proposing to approve can be implemented independently of the portions on which we are not 

acting, without affecting the stringency of the submitted rules. EPA is not proposing to take 

action on any other portions of the November 2, 2006 SIP revisions in this proposed rulemaking; 

EPA intends to act on the other revisions in a separate rulemaking. EPA proposes to approve the 

portion of the November 2, 2006 revision, as indicated above, because it clarifies the permitting 

requirements under the New Mexico SIP. 

III. SIP elements required under Section 110(a)(2) for the 1997 8-hour ozone and fine 

particulate matter NAAQS, the State 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 Identification 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; this 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 that 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 State 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 TSD, 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 control measures are covered in the Air Quality 

Control Act and those provisions of the New Mexico Administrative Code (NMAC) Title 20- 

Environment Protection, Chapter 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 New Mexico’s state statute (1978 NMSA) are duly 

adopted by the Environmental Improvement Board, and where these provisions relate to section 

110 requirements, SIP revisions have 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 applicable 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 requirements of CAA section 110(a)(1). 

EPA analysis: Section 110(a)(2)(A) requires that all measures and other elements in the SIP be 

enforceable. This subsection also authorizes SIPs to contain certain nontraditional techniques for 

reducing pollution – economic incentives, marketable permits, and auctions of emissions rights. 

The EPA reads this language to require even these other means of achieving reductions to be 

enforceable.28 The Air Quality Control Act designates the NMED as the State’s air pollution 

control agency and the Environmental Improvement Act provides the NMED with enforcement 

authority. We reviewed the New Mexico SIP and found state rules 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 section 110(a)(2)(A). These sections were approved by 

EPA into the New Mexico SIP (see Table 1 below) 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 Burning Equipment- Particulate Matter 

 

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

29 NOx and VOCs are precursors to ozone. PM can be emitted directly and secondarily formed; the latter is the result 

of NOx and SO2 precursors combining with ammonia to form ammonium nitrate and ammonium sulfate. 
Page 11 of 34

Part 19 Potash, Salt or Sodium Sulfate Processing Equipment- Particulate Matter 

Part 20 Lime Manufacturing Plants- Particulate Matter 

Part 21 Fugitive Particulate Matter Emissions from Nonferrous Smelters 

Part 22 Fugitive Particulate Matter 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 Burning Equipment- Nitrogen Dioxide 

Part 34 Oil Burning Equipment- Nitrogen Dioxide 

Part 40 Sulfuric Acid Production Units- Sulfur Dioxide, Acid Mist and Visible Emissions 

Part 41 Nonferrous Smelters- Sulfur 

Part 72 Construction Permits 

Part 73 Notice of Intent 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 (denoted NMSA 1978 74-1), created the NMED and the New Mexico 

Environmental Improvement Board (EIB). The New Mexico Air Quality Control Act codified at 

NMSA 1978 74-2, delegates authority to the EIB to adopt, promulgate, publish, amend and 

repeal regulations consistent with the Air Quality Control Act to attain and maintain NAAQS 

and prevent or abate air pollution (see NMSA 1978 74-2-5(B)(1)). The Air Quality Control Act 

also designates the NMED as the State’s air pollution control agency and the Environmental 

Improvement Act provides the NMED with enforcement authority. The SIP rule at Title 20 of 

the New Mexico Administrative Code (denoted as 20 NMAC) describes NMED as the State’s air 

pollution control agency and its enforcement authority, referencing the 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 statewide ambient air quality standards, including 

those for total suspended particulates, nitrogen dioxide, and sulfur dioxide. The general 

requirements for maintaining and reporting records on emissions are provided in part 5. Part 7 

establishes the requirements for a source whose operation results in excess emissions and 

provides for other enforcement provisions. Part 8 establishes requirements for emissions leaving 

New Mexico. Part 10 establishes controls on the use of woodwaste burners. 

 Parts 11-20 establish particulate matter emission standards for asphalt process equipment; 

cement kilns; gypsum processing plants; coal burning equipment; pumice, mica, and perlite 

process equipment; nonferrous smelters; existing nonferrous smelters; oil burning equipment; 

potash, salt or sodium sulfate processing equipment; and lime manufacturing plants. Parts 21 

and 22 establish fugitive particulate matter emission 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 total 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 minimize 
Page 12 of 34

emissions of sulfur dioxide and acid mist. Part 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 intent 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 construction permit fees. Part 74 addresses PSD permit procedures. Parts 98 

and 99 establish the policy, criteria, and procedures for demonstrating and assuring general 

conformity and transportation conformity to the New Mexico SIP. 

 EPA approved New Mexico’s current provisions regarding excess emissions occurring 

during startup, shutdown, and malfunction (SSM) of operations at a facility on September 14, 

2009 (74 FR 46910). EPA believes that a number of states have SSM SIP provisions which are 

contrary to the Act and inconsistent with existing EPA guidance,30 and the Agency plans to 

conduct a SIP call in the future to address such 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 possible 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 parts 3, 5, 7-8, 10-22, 30-34, 40-41, 72-75, and 98-

99 were approved by EPA for adoption into the New Mexico SIP (see Table 1 below) and thus 

are enforceable by the State and EPA. We are proposing that the New Mexico SIP meets the 

requirements of section 110(a)(2)(A) with respect to the 1997 8-hour ozone and PM2.5 NAAQS. 

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

Relevant Section of New Mexico’s SIP EPA Approval/Federal Register31

20.2.3 NMAC - Ambient Air Quality 

Standards 

September 26, 1997 at 62 FR 5051432

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 September 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 Regarding Excess Emissions During Malfunctions, Startup, and 

Shutdown,” Memorandum from Steven A. Herman, Assistant Administrator for Enforcement and Compliance 

Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation, dated August 11, 1999. 

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 explain 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 50514 

20.2.31 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 monitoring and data analysis system: Section 110(a)(2)(B) requires 

SIPs to include provisions for establishment and operation of ambient air quality monitors, 

collecting and analyzing ambient air quality data, and making these data available to EPA upon 

request. 
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 regulations in 40 CFR 58 (Ambient Air Quality 

Surveillance), indicating the necessary data states need to collect and submit as part of their SIP. 

The New Mexico statewide air quality surveillance 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 PM2.5 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 PM2.5 monitor locations and posts past and current concentrations of PM2.5 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 quarterly 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 PM2.5 NAAQS. 

3. Program for enforcement of control measures: Section 110(a)(2)(C) requires states to 

include a program providing for enforcement of the measures described in subparagraph (A), and 

the regulation of the modification and construction of any stationary source within the areas 

covered by the SIP as necessary to assure that 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 Burning Equipment- Particulate Matter 

Part 19 Potash, Salt or Sodium Sulfate Processing Equipment- Particulate Matter 

Part 20 Lime Manufacturing Plants- Particulate Matter 

Part 21 Fugitive Particulate Matter Emissions from Nonferrous Smelters 

Part 22 Fugitive Particulate Matter 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 Burning Equipment- Nitrogen Dioxide 

Part 34 Oil Burning Equipment- Nitrogen Dioxide 

Part 40 Sulfuric Acid Production Units- Sulfur Dioxide, Acid Mist and Visible Emissions 

Part 41 Nonferrous Smelters- Sulfur 

Part 72 Construction Permits 

Part 73 Notice of Intent 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 NMSA 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 establishes the statewide ambient air quality standards, 

including those for total suspended particulates, nitrogen dioxide, and sulfur dioxide. The 

general requirements for maintaining and reporting records on emissions 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 controls on the use of woodwaste burners. 

Enforcement of emissions inventory 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 and allowable emissions, monitoring and testing 

requirements, and control schedules. These chapters and their SIP approval dates are provided in 

Table 3 below. These citations clarify the boundaries beyond which regulated 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 precursors to the formation of such pollutant 

when identified for regulation by the Administrator. The major NSR program is composed of 

two different programs: prevention of significant deterioration (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 terms “major emitting facility” to refer to sources subject to 

the PSD program, and “major stationary source” to refer to sources subject 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 control 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 Transport Region, and is implemented under the 

requirements of part D of title I of the CAA , and 40 CFR 51.160 through 51.166. In a 

nonattainment area, any stationary pollutant source 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 are required by the CAA to obtain an air pollution permit before 

beginning construction. We are not evaluating nonattainment-related provisions, such as the 

nonattainment NSR program required by part D in 110(a)(2)(C) and measures for attainment 

required by section 110(a)(2)(I), as part of the 110(a)(2) infrastructure SIPs because these 

submittals are required beyond the date (3 years from NAAQS promulgation) that section 

110(a)(2) infrastructure submittals are required. 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 stationary sources located in areas meeting the NAAQS (“attainment” 

areas) and areas for which there is insufficient information to classify an area as either attainment 

or nonattainment (“unclassifiable” areas). In areas subject to the PSD requirements, the cutoff 

pollutant level may be either 100 tpy or 250 tpy 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 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, 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 updated its PSD rules to treat NOx as a precursor for ozone (70 FR 

71612). Pursuant to 40 CFR 51.165 and 166, the state’s rules to implement the ozone standard 

must include: (1) the identification of NOx as a precursor for ozone; (2) definition of the 

significance level for NOx 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 increase of 100 tpy or more of VOC or NOx subject to PSD 

would be required to perform an ambient impact analysis, including the gathering of ambient air 

quality data.” On November 26, 2010, EPA approved revisions to New Mexico’s PSD SIP for 

the 1997 8-hour ozone NAAQS to include NOx as an ozone precursor (75 FR 72688). The 

definitions in the New Mexico rules for Major Modification and Major Stationary Source meet 

the federal definition in 40 CFR 51.166(b)(1) to identify a major 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 requirements in 40 CFR 51.166(b)(23)(i). As shown in 

Table 2 below, New Mexico’s rules to implement 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 inserted 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 net emissions increase less than 100 tpy of NOx, 

and also meets the federal requirement on monitoring exemptions under the footnote for 40 CFR 

166(i)(5)(i)(e). These rules have been approved 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) Significant: 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 the adequate authority and resources to address greenhouse gases 

(GHGs) in the PSD permitting program. New Mexico has the authority to issue permits under 

the SIP-approved PSD program to sources of GHG emissions (75 FR 82536, page 82536, 

December 30, 2010).38 The Tailoring Rule established thresholds that phase in the applicability 

of PSD requirements to GHG sources, starting with the largest GHG emitters, and were designed 

to relieve the overwhelming administrative burdens and costs associated with the dramatic 

increase in permitting burden that would have resulted from applying PSD requirements to GHG 

emission increases at or above only the mass-based statutory thresholds of 100/250 tpy generally 

applicable to all PSD-regulated pollutants starting on January 2, 2011. However, EPA 

recognized that even after it finalized the Tailoring Rule, many SIPs with approved PSD 

programs would, until they were revised, continue to apply PSD at the statutory thresholds, even 

 

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 September 14, 2010, in response to the proposed GHG SIP 

Call again confirming that EPA correctly classified New Mexico as a State with authority to apply PSD 

requirements to GHGs. The September 14, 2010, letter also identifies that NMED is pursuing rulemaking activity to 

define the terms “greenhouse gas” and “subject to regulation.” These two letters are in the docket for this 

rulemaking. As explained elsewhere in this rulemaking, on November 10, 2010, New Mexico adopted revisions to 

the State’s PSD rules to implement the GHG thresholds established in EPA’s GHG Tailoring rule and submitted the 

corresponding SIP revision to EPA on December 1, 2010. On April 14, 2011, EPA proposed approval of New 

Mexico’s GHG rules submitted on December 1, 2010 (76 FR 20907). EPA intends to take final action on the 

December 1, 2010 submittal in a separate rulemaking no later than EPA’s final action on New Mexico’s 1997 ozone 

and PM2.5 Infrastructure SIP submittals. 
Page 18 of 34

though the states would not have sufficient resources to implement the PSD program at those 

levels. EPA consequently implemented its “PSD SIP Narrowing Rule” and narrowed its 

approval of those provisions of previously approved SIPs of 24 states, including New Mexico, 

that apply PSD to GHG emission increases from sources emitting GHGs below the Tailoring 

Rule thresholds (75 FR 82536, December 30, 2010). Through the PSD SIP Narrowing Rule, 

EPA withdrew its previous approvals of those programs to the extent the SIPs apply PSD to 

increases in GHG emissions from GHG-emitting sources below the Tailoring Rule thresholds. 

The portions of the PSD programs regulating GHGs from GHG-emitting sources with emission 

increases at or above the Tailoring Rule thresholds remained approved. The effect of EPA 

narrowing its approval in this manner is that the provisions of previously approved SIPs that 

apply PSD to GHG emissions increases from sources emitting GHGs below the Tailoring Rule 

thresholds have the status of having been submitted by the state but not yet acted upon by EPA 

(75 FR 82536, December 30, 2010). 

On November 10, 2010, New Mexico adopted revisions to the State’s PSD rules to 

implement the GHG thresholds established in EPA’s GHG Tailoring rule and submitted the 

corresponding SIP revision to EPA on December 1, 2010. EPA intends to take final action on 

the December 1, 2010 submittal in a separate rulemaking no later than EPA’s final action on 

New Mexico’s 1997 ozone and PM2.5 infrastructure SIP submittals. We are proposing to find 

that the current New Mexico PSD SIP meets the requirements of section 110(a)(2)(C) with 

respect to the 1997 8-hour ozone and PM2.5 NAAQS, as long as we are able to fully approve 

New Mexico’s GHG submittal on or before our final action on New Mexico’s 1997 ozone and 

PM2.5 infrastructure SIP submittals. 

 Additionally, New Mexico submitted a clarification letter to EPA on April 19, 2011, 

clarifying that the portion of the GHG PSD program in the State’s submittal under infrastructure 

SIP review is only the portion that remained approved after EPA’s promulgation of the PSD SIP 

Narrowing Rule, which is the portion that regulates GHG-emitting sources with GHG emissions 

at or above the Tailoring Rule thresholds. Therefore, if we are unable to fully approve New 

Mexico’s GHG submittal, in the alternative, we are proposing to find that the current New 

Mexico PSD SIP meets section 110(a)(2)(C) with respect to the 1997 8-hour ozone and PM2.5

NAAQS on the basis of the State’s April 19, 2011 clarification letter. 

To meet the requirements of section 110(a)(2)(C) for the 1997 PM2.5 standard, EPA 

believes that States should appropriately implement 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 PM2.5

standard as provided under 73 FR 28321.40 During the transition to SIP-approved PSD 

requirements for PM2.5, New Mexico confirmed to EPA by letter that: (1) it does not use PM10

as a surrogate for PM2.5 in its permitting programs; (2) it requires that applicants include PM2.5 

modeling and emissions in their PSD and minor source permit applications; and (3) the record 

for the NMED’s permitting decision includes an explanation of how PM2.5 emissions have been 

 

39 In 1997, EPA issued an interim policy allowing PM10 emissions to be used as a surrogate for PM2.5 emissions in 

the PSD program. In 2008, EPA ended this policy for states implementing the federal PSD program. These States 

and major sources therein are now required to specifically evaluate PM2.5 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 PM2.5. 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 proposed to revise their rules to address PM2.5 in 

their PSD program, and expects to adopt these revisions in May 2011. The State is planning to 

submit these revised PSD rules to EPA as a SIP revision by May 16, 2011. EPA will act on this 

submission in a separate rulemaking. 

The minor NSR program is for major and minor stationary sources that undertake 

construction or modification activities that do not qualify as major, and it applies regardless of 

the designation of the area in which a source is located. The purpose of minor NSR permits is to 

prevent the construction of sources that would interfere with attainment or maintenance of a 

NAAQS or violate the control strategy 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 necessary to assure that the NAAQS 

are achieved” (70 FR 71612, 71677). EPA provides states with a “broad degree of discretion” in 

implementing their minor NSR programs (71 FR 48696, 48700). The “considerably less 

detailed” regulations for minor NSR are provided in 40 CFR 51.160 through 51.164. 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 minor 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 PM2.5 NAAQS. 

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

Relevant Section of New Mexico’s SIP EPA 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 September 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, Air Quality Bureau, New Mexico Environment Department, to 

Thomas Diggs, Associate Director for Air Programs, EPA Region 6. This letter is in the docket for this rulemaking. 

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 requirements 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 provisions or provide a demonstration that the state’s existing program can be 

considered “equivalent.” On December 29, 2005, New Mexico submitted a SIP revision updating 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 50514 

20.2.31 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 provisions prohibiting any source or other type of 

emissions activity in one state from contributing significantly to nonattainment, interfering with 
Page 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 visibility in another state. For the 

1997 ozone and PM2.5 NAAQS, the requirements of section 110(a)(2)(D)(i) are being addressed 

separately and are not included in the infrastructure SIPs.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 not currently subject to requirements under sections 

115 and 126. 

EPA analysis: Regarding the requirements of section 110(a)(2)(D)(ii), section 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 contribute to air pollution which may reasonably be 

anticipated to endanger public health or welfare in a foreign country or whenever the Secretary 

of State requests the Administrator to do so with respect to such pollution, the Administrator 

shall give formal notification thereof to the Governor of the State in which such emissions 

originate. Pursuant to section 115, the Administrator has neither received nor issued a formal 

notification that emissions from New Mexico are endangering public health or welfare in a 

foreign country. 

 Section 126(a) of the Act requires 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 the 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 interstate transport for the 8-hour ozone and PM2.5 NAAQS, as required by section 

110(a)(2)(D)(i). Furthermore, there is a consent decree in place for seven states in the western United States, 

including New Mexico, to meet the requirements of section 110(a)(2)(D)(i) with regard to the 1997 8-hour ozone 

and PM2.5 NAAQS. Under the consent decree, for each of these seven states, EPA is required to fully approve SIPs 

and/or promulgate FIPs that satisfy the four “prongs” of section 110(a)(2)(D)(i) by specified dates. For the 1997 

ozone and PM2.5 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 instances: (1) when the source is subject to PSD (section 126(a)(1)(A)); or (2) 

when the source “may significantly contribute to levels of air pollution in excess” of the NAAQS in air quality 

control regions in other states (section 126(a)(1)(B)). Any new major stationary source or major modification in an 

attainment or unclassifiable area is subject to PSD. Therefore, in attainment or unclassifiable areas, any source that 

potentially falls under section 126(a)(1)(B) must also fall under (A). Thus, to the extent that section 126(a)(1)(B) 

provides any requirements separate from those in section 126(a)(1)(A), it does so only for major proposed new or 

modified sources in nonattainment areas, that is, for sources subject to nonattainment NSR. The requirements of 

section 126(a)(1)(B) should therefore be addressed in states with nonattainment areas through those states’ 

nonattainment NSR programs. As explained elsewhere in this proposed rulemaking, nonattainment NSR programs 

are not a subject of this action, so EPA will not address the requirements of section 126(a)(1)(B) in the infrastructure 

SIPs. 
Page 22 of 34

from the source or modification.”46 The State also has no pending obligations under section 126 

of the Act. 

We are proposing that the New Mexico SIP 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 PM2.5 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 EPA 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 PM2.5 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, regulations and state implementing directives. 

EPA analysis: Each SIP must show that the state has legal authority to carry out the plan (40 

CFR 51.230). The Air Quality Control Act delegates authority to the EIB to adopt, promulgate, 

publish, amend and repeal regulations consistent with the Air Quality Control Act to attain and 

maintain national ambient air quality standards and prevent or abate air pollution (see NMSA 

1978 74-2-5(B)(1)). The Environmental Improvement Act 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 Air Quality Control Act also gives the NMED 

the duty to “develop and present to the environmental improvement board or the local board a 

plan for the regulation, control, prevention or abatement of air pollution ...” and gives the EIB 

the authority to adopt such a plan (see NMSA 1978 74-2-5.1(H) and NMSA 1978 74-2-5(B)(2)) . 

The New Mexico statutes were approved into 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 PM2.5

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 legislation relating to air pollution and 

provides the NMED with the power, “to accept, receive and administer grants or other funds or 

gifts from public and private agencies, including the federal government, or from any person ....” 

(see NMSA 1978 74-2-5.1(F)). In addition, the 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, 2003 (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 sections 103 and 105 of the Act. The section 103 funds support specific, 

non-recurring projects within the air program, thus the amount of funding can vary widely from 

year to year. The section 105 funds support the foundation of the State’s air quality program, 

including the air monitoring network and annual air quality program activities. The section 105 

funding levels are relatively consistent, 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 funds48 and successfully 

completed all of their air 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 sufficient personnel to carry out this SIP. The Department of the 

Environment Act provides that the secretary of the NMED “shall... employ and fix the 

compensation of those persons necessary to discharge his duties...” See NMSA 1978 9-7A6(B). This provision assures that 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 SIP 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 thresholds in the final PSD Tailoring Rule. The 

PSD Tailoring Rule, which EPA promulgated June 3, 2010 (75 FR 31514), implemented 

thresholds establishing applicability of the PSD permitting program to GHG-emitting sources 

only if they emit GHGs in amounts above the 75,000/100,000 tpy of carbon dioxide equivalent 

(denoted CO2e). Thus sources in affected states, including New Mexico, will not be subject to 

federal or state requirements to obtain permits at the lower 100/250 tpy level. The Tailoring 

Rule thresholds were designed to relieve the overwhelming administrative burdens and costs 

associated with the dramatic increase in permitting burden that would have resulted from 

applying PSD at the statutory levels (100/250 tpy) 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 rulemaking no later than EPA’s final action on New 

Mexico’s 1997 ozone and PM2.5 infrastructure SIP submittals. Additionally, the NMED 

submitted a clarification letter to EPA on April 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 after EPA’s promulgation of the Narrowing Rule. This letter is 

in the docket for this rulemaking. 

 We are therefore proposing that the New Mexico SIP meets the requirements of section 

110(a)(2)(E) with respect to the 1997 8-hour ozone and PM2.5 NAAQS, including the 

requirements of the GHG component of the PSD program. 

 

47 For FY08, FY09, and FY10, New Mexico received $1,508,362; $1,243,792; and $1,499,889 in 105 funds for each 

fiscal year, respectively. 

48 The State’s FY10 budget for air quality programs was approximately $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) the installation, maintenance and replacement of 

equipment, and the implementation of other necessary steps, by owners or operators of stationary 

sources to monitor emissions from such sources, (ii) periodic reports on the nature and 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 PM2.5 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 schedule set forth in the regulation. 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 110(a)(1). New Mexico also asserted that 

enforceable emission limitations and other control measures are covered in the State’s Air 

Quality Control Act and those provisions of 20.2 NMAC. The State indicates that 20.2.5 NMAC 

(Source Surveillance) establishes the general requirements for maintaining and reporting records 

on emissions, including recordkeeping, data submissions, 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, recordkeeping 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 PM2.5 and their precursors. 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 determine compliance with New Mexico and EPA 

requirements. The State’s emissions data 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 Reporting Rule (AERR) on December 5, 2008, which 

modified the requirements for collecting and reporting air emissions data (73 FR 76539). The 

AERR shortened the time states had to report emissions data from 17 to 12 months, giving states 

one calendar year to submit emissions data. All states are required to submit a comprehensive 

emissions inventory (EI) every three years and report emissions for certain larger sources 

annually through EPA’s online Emissions Inventory System (EIS). States report emissions data 

for the six criteria pollutants and the precursors that form them – NOx, SO2, ammonia, lead, 

carbon monoxide, PM, and VOCs. Many states also voluntarily report emissions of hazardous 

air pollutants. EPA compiles the emissions data, supplementing it where necessary, 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 requirement for nonattainment areas, and the requirement to submit annual 
Page 25 of 34

EI data to EPA’s NEI database. Because nonattainment NSR is outside the scope of this 

rulemaking, we are not addressing New Mexico’s EI for nonattainment areas in this proposed 

action. Regarding the requirement to submit annual EI data to EPA, the NMED is current with 

their submittals to the NEI database; the 2008 data was submitted to EPA in 2010. The State’s 

emissions data are also available on EPA’s AirData 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 PM2.5 NAAQS. 

 We note the following parts within the State SIP 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 Burning Equipment- Particulate Matter 

Part 19 Potash, Salt or Sodium Sulfate Processing Equipment- Particulate Matter 

Part 20 Lime Manufacturing Plants- Particulate Matter 

Part 30 Kraft Mills 

Part 31 Coal Burning Equipment- Sulfur Dioxide 

Part 32 Coal Burning Equipment- Nitrogen Dioxide 

Part 33 Gas Burning Equipment- Nitrogen Dioxide 

Part 34 Oil Burning Equipment- Nitrogen Dioxide 

Part 40 Sulfuric Acid Production Units- Sulfur Dioxide, Acid Mist and Visible Emissions 

Part 41 Nonferrous Smelters- Sulfur 

Part 72 Construction Permits 

Part 73 Notice of Intent 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 SIP 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 September 26, 1997 at 62 FR 50514 

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

20.2.31 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 endangerment to public health, including adequate 

contingency plans to implement the emergency episode provisions in their SIPs. 

The State's response: In its submittal for the 1997 PM2.5 NAAQS, the State of New Mexico 

indicated that New Mexico has adopted an Air Pollution Episode Contingency Plan (56 FR 

38074, August 12, 1991),49 that covers air pollution episodes 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 is 
Page 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 Contingency Plan to include 

significant harm levels for PM2.5 once EPA finalizes a rule establishing these. 

EPA analysis: The NMED has authority to formulate 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, which provides enforcement authority.. 

 We compared the State’s Air Pollution Episode Contingency Plan to 40 CFR 51 Subpart 

H – Prevention of Air Pollution Emergency Episodes and Appendix L to Part 51 - Example 

Regulations for Prevention of Air Pollution Emergency Episodes. Subpart H provides a 

classification system for episode plans. Each region in a state is 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/m3

) or 0.10 

ppm for a 1-hour maximum. The regulations do not establish Priority 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 concentrations greater than 95 μg/m3

 annual geometric mean or 325 

μg/m3

 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/m3

for a 24-hour maximum. A Priority IA Region is any area which is Priority I primarily because 

of emissions from a single point source. Areas that do not meet the criteria 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 PM10 or PM2.5, the date of promulgation for Subpart H 

would support PM10 (November 7, 1986, 51 FR 40668), as amended on July 20, 1993 (see 58 FR 

38822). 

Table 6: Classification of Regions for Episode Plans for Ozone and Particulate Matter 

(40 CFR 51.150) 

Parameter Priority I Priority II Priority III 

Ozone Ambient concentrations 

> 195 μg/m3

 (0.10 ppm) 

1-hour maximum 

Not defined Areas which do not 

meet the criteria for 

Priority I 

Particulate 

matter 

Ambient concentrations 

> 95 μg/m3 annual 

geometric mean; 325 μg/m3

24-hour maximum 

Ambient 

concentrations 

between 60-95 μg/m3

annual geometric 

mean; 150-325 μg/m3

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 plan provisions consistent with EPA’s existing 

regulatory requirements.50

 The New Mexico Air Pollution Episode Contingency Plan addresses the pollutants 

specified under 40 CFR 51.150. Using 2006-2010 certified ambient air quality monitoring 

data,51 we determined that areas within New Mexico meet the classification for Priority 1 for 1-

hour ozone and Priority III for particulate 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 Pollution Episode Contingency Plan was approved 

into the New Mexico SIP (see 55 FR 34013, August 21, 1990). As discussed in section II, 

subsection A, today we are also proposing to make a CFR codification technical correction to 

amend the table titled “EPA Approved Nonregulatory Provisions And Quasi-Regulatory 

Measures In The New Mexico SIP” under 40 CFR 52.1620(e), to include an entry for the New 

Mexico Air Pollution Episode Contingency Plan approved by EPA into the SIP on August 21, 

1990 (55 FR 34013, 40 CFR 52.1639(a)). EPA is proposing to make this CFR codification 

technical correction because it clarifies that EPA previously approved the State’s air pollution 

episode provisions into the New Mexico SIP. 

While the State has appropriate general emergency powers to address PM2.5 related 

episodes, SHLs for PM2.5 are not provided under Subpart H, nor have SHLs for the 1997 PM2.5

standards been proposed by EPA. The New Mexico SIP has not been revised to address 

contingency plans for PM2.5. To evaluate whether the New Mexico SIP provides adequate 

contingency plans for the 1997 PM2.5 NAAQS, EPA used guidance issued in 2009 for the 2006 

PM2.5 NAAQS.52, 53 The 2009 Guidance for PM2.5 recommends that a state with at least one 

monitored 24-hour PM2.5 value exceeding 140.4 μg/m3 since 2006 establish an emergency 

episode plan and contingency measures to be implemented should such level be exceeded again. 

Additionally, the 2009 Guidance for PM2.5 recommends that if no area of a state has exceeded 

this 140.4 μg/m3 level since 2006 and the state has appropriate general emergency powers to 

address PM2.5 related episodes, then no specific emergency episode plans are necessary at this 

time given the existing monitored levels. The 2006-2010 data for New Mexico54 do not exceed 

140.4 μg/m3

 and have consistently remained below the level of 140.4 μg/m3. In fact, these data 

indicate that New Mexico’s PM2.5 levels have stayed below 55 μg/m3

. In addition, Subpart H at 

51.153 provides for reevaluation of episode plans and requires that, “States should periodically 

reevaluate priority classifications of all Regions or portion of Regions within their borders. The 

reevaluation must consider the three most recent years of air quality data. If the evaluation 

indicates a change to a higher priority classification, appropriate changes in the episode plan 

must be made as expeditiously as practicable.” 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 PM2.5 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 (PM2.5) 

National Ambient Air Quality Standards (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 PM2.5 NAAQS from 65 μg/m3

 to 35 μg/m3 (see 71 FR 61144). 54 The ozone and PM data are available through AQS. The 2006-2009 AQS data for PM2.5 are provided in the 

docket for this rulemaking. The 2006-2009 data is certified data; 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 PM2.5 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 PM2.5 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 that 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 environmental 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...,” and 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 Control Act to attain and maintain the national 

ambient air quality standards and prevent and abate air pollution .... ,” and the Environmental 

Improvement Act authorizes the NMED to enforce 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 requires the NMED to, “... advise, consult, contract 

with and cooperate with local authorities, other states, the federal government and other 

interested persons or groups in regard to matters of common interest in the field of air quality 

control...” (see NMSA 1978 74-2-5.2(B)). Thus, New Mexico has the authority to revise its 

SIP, as may be necessary to account for revisions 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 PM2.5 NAAQS. 

9. Consultation, public notice, and PSD and visibility protection:

55 Section 110(a)(2)(J) 

requires states to provide a process for consultation with local governments and Federal Land 

Managers carrying out NAAQS implementation requirements 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 awareness of measures that can be taken to prevent 

exceedances. Section 110(a)(2)(J) also requires States to meet applicable requirements of Part C 

related to prevention of significant deterioration and visibility protection. 

The State's response: Regarding PSD and visibility protection, 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 section 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 regulations or emission 

control requirement shall be adopted until after a public hearing by the environmental 

improvement board or the local board” and provides that, “at the hearing, the environmental 

improvement board or the local board shall allow all interested persons reasonable opportunity to 

submit data, views, or arguments orally or in writing and to examine witnesses testifying at the 

hearing” (see NMSA 1978 74-2-6(B) and (D)). In addition, the Air Quality Control Act provides 

that the NMED shall have the power and duty to “advise, consult, contract with and cooperate 

with local authorities, other states, the federal government and other interested persons or groups 

in regard to matters of common interest in the field of air quality control...” (see 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 permitting applications to any other state or local 

air pollution control agencies, local government officials of the city or county where the source 

will be located, and FLMs whose lands may be affected by emissions from the source or 

modification. 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 applicability analyses for visibility and has agreed to 

notify the FML of any advance notification or early consultation with a major new or modifying 

source prior to the submission 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 involvement be provided before making transportation conformity 

determinations and before adopting 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 portion of section 110(a)(2)(J) with respect to the 1997 8-hour ozone and 

PM2.5 NAAQS. 

 Section 110(a)(2)(J) further requires states to notify the public if NAAQS are exceeded in 

an area and to enhance public awareness of measures that can be taken to prevent exceedances. 

Provisions regarding public notification 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 provides 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 criteria pollutants. We are proposing that the New 

Mexico SIP meets the requirements of this portion of section 110(a)(2)(J) with respect to the 

1997 8-hour ozone and PM2.5 NAAQS. 

Regarding PSD and visibility protection, section 110(a)(2)(J) requires States to meet 

applicable requirements of Part C related to PSD and visibility protection. As detailed in the 

subsection addressing the requirements 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 the SIP on February 27, 1987 (52 FR 5964). New 

Mexico has since then met the conditions of our conditional approval, so we are proposing to 

convert our conditional approval into a full approval. The State’s PSD program is in the SIP (52 

FR 5964, 53 FR 44191, 55 FR 43013, 56 FR 20137, 61 FR 53639, 68 FR 11316, 68 FR 74483, 

72 FR 50879, and 75 FR 72688). EPA approved New Mexico’s Visibility Protection Plan and 

approved a Long-Term Strategy for Visibility Protection into the New Mexico SIP on January 

27, 2006 (71 FR 4490). With regard to the applicable requirements for visibility protection, EPA 

recognizes that states are subject to visibility and regional haze program requirements under 

sections 169A and 169B of the Act. In the event of the establishment of a new NAAQS, 

however, these visibility and regional haze program requirements do not change. Thus, we find 

that there is no new visibility obligation triggered under section 110(a)(2)(J) when a new 

NAAQS becomes effective. We are proposing that the New Mexico SIP meets the requirements 

of this portion of section 110(a)(2)(J) with respect to the 1997 8-hour ozone and PM2.5 NAAQS. 

10. Air quality modeling and submission of data: Section 110(a)(2)(K) requires that SIPs 

provide for performing air quality modeling for predicting effects on air quality of emissions 

from any NAAQS pollutant and submission of such data to EPA upon request. 

The State’s response: The State indicated that New Mexico 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 studies,” 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 Area, 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 cooperate with the federal government in regard to 

matters of common interest in the field of air quality control, thereby allowing it to make this 

submission to 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 PM2.5 NAAQS. 

11. Permitting fees: Section 110(a)(2)(L) requires SIPs to require each major stationary source 

to pay permitting fees to cover the cost of reviewing, approving, implementing and enforcing a 

permit. 

The State's response: The State indicated that the fee requirements of 20.2.71 NMAC 

(Operating Permit Emission Fees) and 20.2.75 NMAC (Construction Permit Fees) were 

approved by EPA as meeting the CAA requirements and were incorporated into New Mexico’s 

 

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). The State also indicates that New Mexico’s Title V operating 

permit program in 20.2.70 NMAC was approved 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 construction permit fee schedule to recover the 

reasonable costs of acting on permit applications, 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. New Mexico’s regulations for construction permit 

fees are found at 20.2.75 NMAC. Operating permits, 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 PM2.5 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 section 110(a)(2)(M). 

EPA analysis: As described under the section addressing the requirements of element 

110(a)(2)(J) above, regarding consultation with government officials and public notification, the 

Air Quality Control Act provides that, “no regulations or emission control requirement shall be 

adopted until after a public hearing by the environmental improvement board or the local board” 

and provides that, “at the hearing, the environmental improvement board or the local board shall 

allow all interested persons reasonable opportunity to submit data, views, or arguments orally or 

in writing and to examine witnesses testifying at the hearing” (see NMSA 1978 74-2-6(B) and 

(D)). In addition, the Air Quality Control Act provides that the NMED shall have the power and 

duty to “advise, consult, contract with and cooperate with local authorities, other states, the 

federal government and other interested persons or groups in regard to matters of common 

interest in the field of air quality control...” (see NMSA 1978 74-2-5.2(B)). New Mexico’s PSD 

regulations at 20.2.74.400 NMAC mandate that the NMED shall provide for public participation 

and notification regarding permitting applications to any other state or local air pollution control 

agencies, local government officials of the city or county where the source will be located, and 

FLMs whose lands may be affected by emissions from the source or modification. New 

 

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 incorrectly including entries in the table titled “EPA Approved New 

Mexico Regulations” for part 70 (Operating Permits) and part 71 (Operating Permit Emission Fees) of 20.2 NMAC. 

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 Mexico’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 regulations at 20.2.99.116 and 20.2.99.124 NMAC require 

that interagency consultation and opportunity for public involvement be provided before making 

transportation conformity determinations and before adopting applicable SIP revisions on 

transportation-related SIPs.62 These rules are in the federally-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 PM2.5 NAAQS. 

IV. EPA’s Recommendation

We reviewed New Mexico’s submittals, SIP, and air quality data for ozone and PM2.5 for 

compliance with the requirements of sections 110(a)(1) and (2) of the Act for the 1997 8-hour 

ozone and PM2.5 standards. We recommend that EPA propose to approve the submittals 

provided by the State of New Mexico to demonstrate that the New Mexico SIP meets the 

requirements of sections 110(a)(1) and (2) of the Act with respect to the 1997 8-hour ozone and 

PM2.5 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 (PM2.5) 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/data system: Section 110(a)(2)(B) 

Program for enforcement of control measures: Section 110(a)(2)(C) 

Interstate transport: Section 110(a)(2)(D)(ii) 

Adequate resources: Section 110(a)(2)(E) 

Stationary source monitoring system: Section 110(a)(2)(F) 

Emergency power: Section 110(a)(2)(G) 

Future SIP revisions: Section 110(a)(2)(H) 

Consultation with government officials: Section 110(a)(2)(J) 

Public notification: Section 110(a)(2)(J) 

PSD and visibility protection: Section 110(a)(2)(J) 

Air quality and modeling/data: Section 110(a)(2)(K) 

Permitting fees: Section 110(a)(2)(L) 

Consultation/participation by affected local entities: Section 110(a)(2)(M) 

We recommend making CFR codification technical 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 approved Air Pollution Episode Contingency Plan. 

2. The table titled “EPA Approved New Mexico Regulations,” found under 40 CFR 

52.1620(c), by (i) deleting entries for part 70 (Operating Permits) and part 71 (Operating 

Permit Emission Fees) of 20.2 NMAC and (ii) correcting the currently listed EPA 

approval date for the recodification of New Mexico’s air quality regulations in the SIP. 

3. 40 CFR 52.1640(c)(66)(i)(B), by amending the paragraph such that it correctly identifies 

the State regulations submitted by the State and approved by EPA into the New Mexico 

SIP. 

 

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 met all conditions of our February 27, 1987 

conditional approval of New Mexico’s PSD program such that our conditional approval 

is converted to a full approval. 

We are proposing to convert our conditional approval of New Mexico’s PSD program to a 

full approval: 

 We are proposing to convert our February 27, 1987, conditional approval of New 

Mexico’s PSD program (52 FR 5964), to a full approval based on the November 2, 1988, 

approval of New Mexico’s stack height regulations (53 FR 44191), at which point New Mexico 

fully met the condition in the conditional approval. 

We recommend approval of the following revision to 20.2.3 NMAC, submitted by NMED 

on November 2, 2006: 

 The revision to 20.2.3 NMAC removes the state ambient air quality standards from being 

an applicable requirement under the State’s Title V permitting program, found at 20.2.70 NMAC 

(Operating Permits). The revision also adds language to ensure that sources being issued a 

permit under the State’s minor source permitting program, found at 20.2.72 NMAC (Operating 

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

application

V. References

1. Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 NAAQS, Memorandum from William T. Harnett, 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 (PM2.5) NAAQS, Memorandum from William T. Harnett, Director, Air Quality 

Policy Division, OAQPS, to Regional Air Division Directors, dated September 29, 2009.