New Mexico State Implementation Plan Elements

Re quired Under Section 110(a)(2) for the 2008 Ozone (O 3 ) and 2010 Nitrogen Dioxide (NO 2 ) National Ambient Air Quality Standards (NAAQS) Interstate Transport of Air Pollution Affecting Visibility

Docket ID EPA-R06-OAR-2014 -02 70

Technical Support Document
March 2015

Table of Contents:

I. Introduction

A. Section 110(a)(1) and (2) II. Additional Background

A. What are the National Ambient Air Quality Standards?

B. What is a SIP?
C. Additional Information III. SIP elements required under Section 110(a)(2) for the 2008 Ozone and 2010 Nitrogen
Dioxide NAAQS, the State ’s submittals and EPA ’s analysis
IV. Recommendations

V. References Appendix A: EPA’s Approach to the Review of Infrastructure SIP Submissions Appendix B: EPA’s Evaluation of the June 23, 2014 United States Supreme Court decision on greenhouse gas emissions on New Mexico’s infrastructure SIP reviews.

I. Introduction

In this technical support document (TSD), EPA is providing additional documentation concerning our evaluation of the submittal provided by the New Mexico Environment

De partment (NMED) to meet the requirements of section 110(a)(2) of the Clean Air Act (CAA or Act) for the 2008 national ambient air quality standards (NAAQS or standards) for ozone (O 3 ) and the 2010 NAAQS for nitrogen dioxide (NO 2 ). More detail on these standards, section 110(a)(1) and (2) of the Act, and the submittal we are reviewing to determine if the New Mexico
S IP satisfies the section 110(a)(2) requirements, is pr ovided in subsection A below. Throughout this document, “we,” “us,” and “our” means EPA.

Section II of this TSD provides additional background material on the NAAQS, State Implementation Plans (SIPs), and related issues.
Section III of this TSD provides a description of each element required under section 110(a)(2) of the Act, the State’s response, and additional details of our analysis of the State’s

re sponse that are not included in the Fe deral Register notice for this proposed action. Copies of the State’s submittal are in the docket for this rulemaking.
Section IV of this 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.Page 2 of 22

Appendices A and B provide additional information about recent changes to how EPA
reviews infrastructure SIPs.

Also included in the Federal Register Notice, EPA is proposing to approve a portion of a

J une 12, 2009 SIP submittal for the 2006 fine particulate matter (PM 2.5 ) NAAQS pertaining to interstate transport of air pollution and visibility protection. EPA previously disapproved the

Ne w Mexico Regional Haze SIP and transport and visibility protection portions of the SIP submittals for the 1997 ozone and 1997 PM2.5 NAAQS (August 22, 2011, 76 FR 52388). In
thi s rulemaking EPA also issued a Federal Implementation Plan to address regional haze and visibility protection. In 2013 New Mexico submitted revisions to the Regional Haze SIP. The SIP revisions were approved by EPA and the FIP was withdrawn on October 9, 2014 (79 FR 60985, 79 FR 60978). With a fully approved Regional Haze SIP the New Mexico SIP meets the
C AA requirement is to prohibit emissions which interfere with visibility protection measures for any other State.

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

On April 30, 197 1 , we published the first NAAQS for ozone (3 6 FR 8186). Both the primary (to protect the health) and secondary (to protect public welfare) standards were set at
0

. 08 parts per million (ppm) with total photochemical oxidants as the indicator. These standards

we re reviewed in 1979, 1993, 1997 and 2 008, becoming more stringent every time except in 1993. Following the 2008 evaluation, EPA published a revised, more stringent NAAQS of 0.075

ppm for both the primary and secondary standards (73 FR 16 483

, March 27, 2008). For more information on these standards, please see the EPA web site on the ozone NAAQS 1 and its history. 2

As with O 3 , the first NAAQS for nitrogen dioxide were published on April 30, 1971 (36

F R 8186). Both the primary and secondary standards were set at 53 parts per b illion (ppb). These standards were reviewed in 1985, 199 6 , and 2010. Following the 20 10 evaluation, EPA published a revision to the primary NO 2 NAAQS in order to provide greater protection of public health. Specifically, EPA established a new 1-hour standard at a level of 100 pp b , based on the 3 year average of the 98 th percentile of the yearly distribution of 1-hour daily maximum concentrations, to supplement the existing annual standard (7 5 FR 64 74

, February 9, 2010). For more information on these standards, please see the EPA web site on the ozone NAAQS 3 and its history 4

. Under sections 110(a)(1) and (2) of the Act, states are required to submit SIPs that provide for the implementation, maintenance, and enforcement (the infrastructure) of a new or revised NAAQS within three years following the promulgation of the NAAQS, or within such shorter period as EPA may prescribe. Section 110(a)(2) lists the specific infrastructure elements that must be incorporated into the SIPs, including for example, requirements for air pollution control measures, which are designed to assure attainment and maintenance of the NAAQS.
S ection III of this TSD provides a description of all 14 infrastructure elements that comprise

se ction 110(a)(2) of the Act. The schedule for completion of EPA’s periodic review of both O 3 and NO 2 NAAQS was established in Section 109 (d)(1) of the CAA, which requires that “not later than December 31, 1980, and at 5-year interval thereafter, the EPA shall complete a

1 http://www.epa.gov/ttn/naaqs/standards/ozone/s_o3_index.html

2 http://www.epa.gov/ttn/naaqs/standards/ozone/s_o3_history.html

3 http://epa.gov/ttn/naaqs/standards/nox/s_nox_index.html

4 http://epa.gov/ttn/naaqs/standards/nox/s_nox_history.htmlPage 3 of 22

thorough review of the criteria published under section 108 and the national ambient air quality standards, “... and shall make such revisions in such criteria and standards and promulgate such new standards as may be appropriate in accordance with section 108”.
For both the 2008 O 3 and 2010 NO 2 NAAQSs, states typically have met many of the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous NAAQS. Nevertheless, pursuant to section 110(a)(1), states have to review and revise, as appropriate, their existing SIPs to ensure that they are adequate to address
the 2008 O 3 and 2010 NO 2 NAAQSs. To assist states in meeting this statutory requirement, EPA issued guidance on September 13, 2013, addressing the infrastructure SIP elements required
und er sections 110(a)(1) and (2) for most the NAAQS 5

. On August 27, 201 3 , and March 12, 2014 the Cabinet Secretary of the New Mexico
Environme ntal Department submitted letters certifying that NMED has evaluated the New

Me xico SIP and found that the SIP satisfies all the requirements of section 110(a)(1) and (2) for
the 2008 O 3 and 2010 NO 2 NAAQS. The submittals includes a table with an explanation of how
the c urrent New Mexico SIP meets the requirements of each applicable element of section 110(a)(2) for the 2008 O 3 and 2010 NO 2 NAAQS. This TSD provides additional details of New

Me xico’s certification and EPA’s evaluation that are not included in the official Fe deral Register
notice for this action.

II. Additional Background

A. What are the National Ambient Air Quality Standards?

Section 109 of the Act requires EPA to establish NAAQS for pollutants that “may reasonably be anticipated to endanger public health and welfare,” and to develop a primary and

seco ndary standard for each NAAQS. The primary standard is designed to protect human health with an adequate margin of safety, and the secondary standard is designed to protect public welfare and the environment. EPA has set NAAQS for six common air pollutants, referred to as criteria pollutants. These pollutants are: carbon monoxide, lead, nitrogen dioxide, ozone,

pa rticulate matter, and sulfur dioxide. These standards present state and local governments with the minimum air quality levels they must meet to comply with the Act. Additionally, these standards provide information to residents of the United States about the quality of the air in their

c ommunities.

B. What is a SIP?

A State Implementation Plan, or SIP, is a set of state statutes, air pollution regulations,

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

5 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013Page 4 of 22

C

. Additional Information

As indicated in the Federal Register notice for this action, this proposed rulemaking will not cover four substantive issues that are not integral to acting on a state’s infrastructure SIP submission: (i) existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources, that may be contrary to the CAA and EPA’s policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); (iii) existing provisions for minor source NSR programs that may be inconsistent with the requirements of the CAA and EPA’s regulations that pertain to such programs (“minor source NSR”); and, (iv) existing provisions for PSD programs that may be inconsistent with current requirements of EPA’s “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has indicates that it has other authority to address any such existing SIP defects in other rulemakings, as appropriate. A detailed rationale for why these four substantive issues are not part of the scope of infrastructure SIP rulemakings can be found in EPA’s July 13, 2011, final rule entitled, “Infrastructure SIP Requirements for the 1997 8-hour Ozone and PM 2.5 National Ambient Air Quality Standards” in the section entitled, “What is the scope of this final rulemaking?” (see 76 FR 41075 at 41076-41079).

II I. SIP elements required under Section 110(a)(2) for the 2008 Ozone and 2010 Nitrogen Dioxide NAAQS, the State ’s submittals and EPA ’s analysis

The Federally approved SIP for each state is listed in 40 CFR 52. The first section in
thi s subpart for any state is the “Identification of plan.” The Identification of plan lists the EPAa pproved 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. 6 In the following sections of this document we provide additional information, not
include d in the Federal Register notice for this action, which we considered in performing our
evaluation of New Mexico’s infrastructure SIP submittal for the 2008 O 3 and 2010 NO 2 NAAQS . 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 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 indicates 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-

6 The discussion of section 110(a)(2), subsections (A) through (M) begins on p. 13556 of the General Preamble.Page 5 of 22

Environment Protection, Chapter 2- Air Quality, listed in 40 CFR Part 52 Subpart GG, and source-specific provisions codified at 40 CFR Part 52 Subpart GG . The State also asserted that
the r egulations 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 indicates that New Mexico has an EPA-approved air

pe rmitting program for both major and minor sources, which ensures that all applicable requirements are included in the source’s permit. Current data shows that New Mexico meets the

1 -hour 100 ppb NO 2 standard 7 . Historical data has shown that NM did not exceeded the 0.075 ppm O 3 8 at any location in the 2011 to 2013 reporting timeframe. Furthermore, the State asserts that, pursuant to NMAC 20.2.7, it does not exempt from enforcement any excess emissions that occur during periods of startup, shutdown, maintenance, or malfunction. Emissions in excess of permit or regulatory limits are presumptively violations, subject to affirmative defenses with the burden of proof on the respondent.

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. 9 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 adequate to implement and

e nforce the 2008 O 3 and 2010 NO 2 NAAQS, and limit or reduce emissions of O 3 and NO 2

. These rules include emission limits, control measures, as well as permits and fees. Table 1 below provide s a list of New Mexico regulations and emissions standards that have been approved by EPA into the New Mexico SIP and thus are federally enforceable.

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

Relevant Section of New Mexico ’s SIP EPA Approval/ Federal Register 10

20.2.1 NMAC

– General Provisions August 12, 2012 at 75 FR 48860
20.2.2 NMAC

– Definitions September 26, 1997 at 62 FR 50514

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

2 0 .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

2 0 .2.11 NMAC

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

2 0 .2.12 NMAC

- Cement Kilns September 26, 1997 at 62 FR 50514

2 0 .2.13 NMAC

- Gypsum Processing Plants September 26, 1997 at 62 FR 50514

7 http://www.epa.gov/airquality/nitrogenoxides/pdfs/NO2_final_designvalues_0608_Jan22.pdf

8 http://www.epa.gov/airtrends/values.html as shown on Table4 County Status of the Ozone Detailed information.

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

10 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.Page 6 of 22

Relevant Section of New Mexico ’s SIP EPA Approval/ Federal Register 10

2 0 .2.14 NMAC

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

2 0 .2.15 NMAC

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

2 0 .2.16 NMAC

- Nonferrous Smelters (New and Existing)

- Particulate Matter September 26, 1997 at 62 FR 50514

2 0 .2.17 NMAC

- Nonferrous Smelters (Existing)

- Particulate Matter September 26, 1997 at 62 FR 50514

2 0 .2.18 NMAC

- Oil Burning Equipment

Particulate Matter September 26, 1997 at 62 FR 50514

2 0 .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 Plants

Particulate 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 Equipment

Sulfur Dioxide September 26, 1997 at 62 FR 50514

20 .2.32 NMAC

- Coal Burning Equipment

Nitrogen Dioxide September 26, 1997 at 62 FR 50514

20 .2.33 NMAC

- Gas Burning Equipment

Nitrogen Dioxide September 26, 1997 at 62 FR 50514

20 .2.34 NMAC

- Oil Burning Equipment

Nitrogen Dioxide Sep tember 26, 1997 at 62 FR 50514

20 .2.40 NMAC

- Sulfuric Production Units

Sulfur 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
20.2.60 NMAC

– Open Burning September 26, 1997 at 62 FR 50514

20.2.61 NMAC

– Smoke and Visible
Emissions 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 Requirem ents 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

20.2.79 NMAC

– Permits

– Nonattainment
Areas September 5, 2007 at 72 FR 50879

20.2.8 NMAC

– Stack Heights 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 Various

– see 40 CFR 52.1620Page 7 of 22

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.

The State’s response: In its submittal, the NMED stated that New Mexico maintains and operates a multi-station network to measure ambient levels within the state for comparison to the NAAQS. All monitoring data is measured using EPA approved methods as either Reference or Equiva lent monitors. All monitors are subjected to the quality assurance requirements of 40 CFR Part 58, Appendix A, and are located at sites that have met the minimum siting

re quirements of Part 58, Appendix E. The data is submitted to EPA’s Air Quality System (AQS) system in accordance with the schedule prescribed by 40 CFR Part 58. New Mexico SIP satisfies this particular element of section 110(a)(2)(B). The State submits an Annual Ambient Monitoring Network Plan (AAMNP) to EPA’s Region 6 office for review and approval. The most recent AAMNP was submitted on July 15, 2013, and approved on April 9, 2014. All monitors will be subjected to the quality assurance requirements of 40 CFR Part 58, Appendix A, and located at sites that have met the minimum siting requirements of Part 58, Appendix E. All data will be submitted to EPA’s Air Quality System (AQS) in accordance with the schedule prescribed by 40 CFR Part 58.

EPA analysis: As noted in the Federal Register notice for this proposed action, our analysis included review of New Mexico’s recurrent 5-year ambient monitoring network assessment submitted in June 2010 and New Mexico’s annual ambient monitoring network review submitted in July 2013. Copies of these documents are available in the docket for this rulemaking. A s indicated in these documents, the 2008 O 3 NAAQS, EPA regulations require that ambient O 3 monitors are based on the population of each of their Metropolitan Statistical Areas (MSA) and the most recently measured O 3 levels in each area. For the 2010 NO 2 NAAQS, EPA regulations require that ambient NO 2 monitors are based on near-road monitoring stations in each Corebased Statistical Area (CBSA) with populations greater than or equal to 500,000 at a location of expected highest hourly NO 2 concentrations sited near a major road with high Annual Average Daily Traffic counts, and community-wide monitoring at CBSAs of populations greater than or equal to one million at a location of expected highest NO 2 concentrations representing neighborhood or larger (urban) spatial scale. Based on these criteria, no new NO 2 monitors are required in regions under NMED/ AQB jurisdiction. One new O 3 monitor will be commissioned in an area of high ozone concentration outside of the currently monitored MSAs and Micropolitan areas. As of December 2013, NMED has eight NO 2 and seventeen O 3 monitoring
stations 11 . According to the New Mexico 2014 Annual Network Review three O 3 monitors will
be decommissioned.

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 r egulation of the modification and construction of any stationary sources within the areas

c overed 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 submittal, the State indicates that NMED has established regulations, including NMAC sections 20.2.72, 20.2.74, and 20.2.79, which govern the enforcement of

c ontrol measures, including attainment plans and permitting programs that regulate construction

11 http://www.nmenv.state.nm.us/aqb/documents/2014_AnnualNetworkReview-8-4-14AQBFINAL.pdfPage 8 of 22

and modification of stationary sources. The State asserts that NMED’s PSD program applies to sources that emit greenhouse gases in accordance with EPA’s tailoring rule (see 20.2.74.AZ NMAC).

EPA analysis: Refer to Table 1 above or the table of EPA-approved New Mexico Regulations
and Statutes at 40 CFR 52.1606 for a list of the state rules and laws that we evaluated in our
review of New Mexico’s infrastructure SIP submittal.

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) (i i). S ection 110(a)(2)(D)(i) requires SIPs to include provisions prohibiting any source or other type of

e missions activity in one state from contributing significantly to nonattainment in

, or interfering with 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. Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with

se ctions 115 and 126 of the Act, relating to interstate and international pollution abatement.

The State's response: Based on EPA guidance from the November 19, 2012 EPA Gina McCarthy Memo, "Next Steps for Pending Redesignation Requests and State Implementation Plan Actions Affected b y the Recent Court Decision Vacating the 2011 Cross-State Air Pollution Rule," the requirements of § 110 ( a)(2)(D)(i)(I) are not being addressed in this infrastructure SIP submittal.

EPA analysis: As stated above, the submittal did not address CAA 110(a)(2)(D)(i)(I). Updated information and background for the Cross -State Air Pollution Rule can be found at http://www.epa.gov/crossstaterule . All other pertinent details of our analysis for this
infrastructure element are included in the Fe deral Register notice.

5. Adequate personnel, funding, and authority : S ection 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 programs. It also requires compliance with state board composition and conflicts of
int erest contained in section 128 of the Act and requires assurances that the state retain primacy for implementation of the SIP in cases where the state relies upon local or regional government agencies.

The State’s response: With regards to section 110(a)(2)(E)(i), which pertains to adequate personnel, funding, and authority, the State of New Mexico indicates that New Mexico state statute, NMSA 1978,

se ction 74-2-5 provides the state’s Environmental Improvement Board authority to develop, implement, and enforce the SIP; adopt emissions standards and limitations and any other measures necessary for attainment and maintenance of national standards; and enforce applicable laws, regulations, standards, and compliance schedules, and seek injunctive relief. The State indicates that the resources necessary to carry out the SIP are provided through general funds, permit fees, and the CAA section 103 and 105 grant processes. Permit fees are collected under the authority of 74-2-7 NMAC. The State asserts that no organizations outside NMED will participate in implementing the SIP, and that New Mexico has adequate personnel to implement the SIP with respect to requirements of the 2008 O 3 and 2010 NO 2 NAAQS. The State does not anticipate the need for additional resources to implement the SIP beyond those that have been utilized for thePage 9 of 22

preparation of the plan and plan revisions submitted to EPA and other current programmatic
demands. With regards to section 110(a)(2)(E)(ii), which pertains to section 128 requirements for state boards, New Mexico indicates that NMSA 1978 Section 74-1-4 provides that the
Environme ntal Improvement Board contain at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to, or who appear before the Board, on issues relating to the CAA or New Mexico’s Air Quality Control Act. Board members are required to recuse themselves from rulemakings in which their impartiality may reasonably be questioned. (See 20.1.1.111 NMAC). With regards to section 110(a)(2)(E)(iii), which pertains to assurances concerning reliance on local government agencies, the State indicates that the City of Albuquerque/

B ernalillo County is authorized to carry out all portions of New Mexico’s SIP within the jurisdictional boundaries of Bernalillo County. However, NMED and the State Environmental Improvement Board retain oversight authority in the event the local authority fails to act. (See Section 74-2-4 NMSA).

EPA analysis: All pertinent details of our analysis for this infrastructure element are included in
the Federal Register notice.

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 2008 O 3 and the 2010 NO 2 NAAQS, the State of
New Mexico indicates that its 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 indicates that requirements in 20.2.7.73 NMAC ( N otice 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. New Mexico also
asserts that enforceable emission limitations and other control measures are addressed in the
S tate’s Air Quality Control Act and those provisions of 20.2 NMAC. The State indicates that 20.2.5 NMAC ( Sourc e Surveillance ) establishes the general requirements for maintaining and reporting records on emissions, including recordkeeping, data submissions, and public access to
emission data.

EPA analysis: All pertinent details of our analysis for this infrastructure element are included in
the Federal Register notice.

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 2008 O 3 and 2010 NO 2 NAAQS, the State of New
Mexico indicates that existing statutes provide adequate authority to constrain any sources of O 3 or NO 2 emissions, as necessary, should an emergency situation arise. Under NMSA Section 74-Page 10 of 22

2 -10, the Secretary of NMED is empowered to bring suit to immediately restrain a facility causing emissions that present an imminent and substantial endangerment to public health, welfare, or the environment. Alternatively, the NMED Secretary is authorized to issue orders necessary to protect the public health or welfare, or the environment, and then bring suit against

c ontributing sources within 24 hours. If the Secretary brings an action within that time, the order is effective for another 48 hours or for such longer period as may be authorized by the court

pe nding litigation. New Mexico adopted an Air Pollution Episode Contingency Plan (55 FR 34013, August

2 1 , 1990), that addresses air pollution episodes and the occurrence of an emergency due to the

e ffects of the pollutants on the health of persons. This Contingency Plan cites the State’s legal

a uthority provided to the Secretary of the NMED under NMSA Section 74-2-10 in the event that

a n emergency episode is experienced. The State asserts that the Contingency Plan meets the requirements of 40 CFR Part 51, Subpart H, which concerns the prevention of Air Pollution Emergency Episodes.

EPA analysis: EPA compared the State rules 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 poll utants: Sulfur dioxide, particulate matter, carbon monoxide, nitrogen dioxide, and ozone (40
C FR 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 or Nitrogen Dioxide. Areas that do not meet the criteria for Priority I or II are classified Priority III. Table 2 below
summarizes the classification for ozone and NO 2

.

Table 6: Classification of Regions for Episode Plans for Ozone and Nitrogen Dioxide (40 C FR 51.150)
Parameter Priority I Priority II Priority III

Ozone Ambient concentrations

> 195 μg/m 3 (0.10 ppm)

1

- hour maximum Not defined Areas which do not
meet the criteria for Priority I

Nitrogen
Dioxide Ambient concentrations

> 100 μg/m 3 (0.06 ppm)
Annual arithmetic mean Not defined

. Areas which do not
meet the criteria for Priority I

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,

EP A expects that for purposes of the 2008 8 -hour ozone NAAQS, states need only to confir m that they have existing emergency episode plan provisions consistent with EPA’s existing regulatory requirements. The SHL for the 1 hour average NO 2 NAAQS will remain unchanged as 2 ppm, 24-hour average will remain 0.5 ppm as indicated in 40 CFR 51

I n 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, appropriatePage 11 of 22

changes in the episode plan must be made as expeditiously as practicable.” The New Mexico data does not indicate a change to a higher priority, but suggests that emergency episode plans
for the NO 2 NAAQS are appropriate at this time.

Ne w Mexico’s Emergency Episode Plan (EEP) was approved into the New Mexico SIP on August 21, 1990 (55FR 34013). We found that the New Mexico EEP provides for the poll utants specified under 40 CFR 51.150. Using 2006 through 2010 data, we have determined that areas within New Mexico meet the classification for Priority III for ozone and for nitrogen
Diox ide. We found that New Mexico’s EEP is consistent with the provisions of 40 CFR 51.151 and 152, and Appendix L to Part 51. Based on this analysis, we conclude that these New Mexico SIPs meet the requirements of section 110(a)(2)(G) for the 2008 8-hour ozone and the 2010 NO 2 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: The State responded that the New Mexico SIP is a compilation of regulations, plans, and submittals that act to improve and maintain air quality in accordance with national standards. The authority to develop or revise the SIP is based on the authority to adopt new regulations, revise existing regulations, and conduct business in a manner to meet the NAAQS. New Mexico state statute § 74-7-5 gives the board authority to perform these functions. § 74-7-5 also provides
the boa rd the authority to adopt regulations to abate, control, and prohibit air pollution throug hout New Mexico in accordance with the provisions of State Rules Act [Chapter 14, Article 4, NMSA 1978]. Nothing in New Mexico's statutory or regulatory authority prohibits the State from revising the SIP in the event of a revision to the NAAQS.

EPA analysis: All pertinent details of our analysis for this infrastructure element are included in
the Federal Register notice.

9. Nonattainment area plans or plan revisions under Part D of the CAA : Section 110(a)(2)(I ) contains provisions related to the submission of nonattainment area plans or plan revisions as specified in Part D of the CAA.

The State's response: The State indicates that compliance under the O 3 and NO 2 NAAQS will be evaluated with submitted SIP revisions for any future nonattainment areas. These SIP revisions will comply with the applicable requirements of Part D. The currently approved nonattainment area SIP provisions listed in 40 CFR Part 52, Subpart GG satisfy the Part D requirements.

The State submission stated that because New Mexico presently does not have any
nonattainment areas for ozone or NO 2 , thi s element does not need to be addressed.

EPA analysis: As noted previously, EPA does not expect infrastructure SIP submissions to address subsection 110(a)(2)(I). Nonattainment area plans required under Part D are required to
be submitted on a different schedule from the Section 110 infrastructure elements and will be reviewed and acted upon through a separate process.

10

. Consultation, public notice, and PSD and visibility protection : Section 110(a)(2)(J) is divided into three components: consultation with government officials, public notification requirements, and provisions for PSD and visibility protection. With regards to consultation withPage 12 of 22

government officials, this section requires states to provide a process for consultation with local governments and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements pursuant to section 121 relating to consultation. Section 110(a)(2)(J) further

re quires 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

re quires States to meet applicable requirements of Part C related to Prevention of Significant

D eterioration and visibility protection.

The State's response: The State indicates that all SIP revisions undergo public notice and hearing, which provides for opportunities to comment by the public, including local political
subdivisions. Additional public notification concerning compliance with the NAAQS is accomplished by real-time publishing of air quality data from NMED’s monitoring network to the NMED website. This air quality monitoring data is also submitted to EPA’s Air Quality System (AQS) in a timely manner, where it is also made public. The NMED website provides information on the air quality index (AQI) and on ways in which the public can participate in regulatory and planning efforts related to air quality. With regards to the consultation requirements of the PSD permitting program, New

Me xico has adopted 20.2.74 NMAC, Prevention of Significant Deterioration, following the requirements outlined in 40 CFR 52 under section 161 of the CAA for prevention of significant
de terioration. These PSD permitting provisions were approved by EPA as part of the SIP. With regards to visibility protection, 20.2.74 NMAC includes procedures for protection of visibility in Class I areas. In addition, New Mexico submitted its Regional Haze SIP to EPA in June 2011. This SIP revision is intended to provide further visibility protection and improvements to federal Class I areas.

EPA analysis: All pertinent details of our analysis for this infrastructure element are included in the Federal Register notice.

1 1

. Air quality modeling and submission of data : Section 110(a)(2)(K) requires that SIPs provide for performing air quality modeling to predict effects on air quality resulting from emissions of any NAAQS pollutant, and submission of such data to EPA upon request.

The State’s response: The State indicates that New Mexico has developed Air Dispersion Modeling Guidelines that follow EPA guidelines for air dispersion modeling; these guidelines also include some internal policy language. The Air Quality Bureau within NMED contains a modeling section that is staffed with four qualified modelers, two of which have earned accredited doctorate of philosophy degrees. NMED submits to EPA data related to modeling

upon r equest.

EPA analysis: All pertinent details of our analysis for this infrastructure element are included in
the Federal Register notice.

1 2

. 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 indicates that the fee requirements of 20.2.71 NMAC ( Ope rating

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 SIP (11/25/97, 62Page 13 of 22

FR 50514). The State also indicates that New Mexico’s Title V operating permit program codified in 20.2.70 NMAC was approved by EPA in 1997 (11/26/97, 61 FR 60032 ).

EPA analysis : All pertinent details of our analysis for this infrastructure element are included in
the Federal Register notice.

1 3

. 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

a ffected by the SIP.

The State’s response: In its submittal, the State responds to this infrastructure SIP requirement by stating that New Mexico Statute § 74-2-5.2 "State air pollution control agency; specific duties

a nd powers of the department," requires advising; consulting; contracting with and cooperating 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; and initiation of cooperative action between a local authority and the department, between one local authority and another or among any combination of local authorities and the department for control of air pollution in areas having related air pollution problems that overlap the boundaries of political subdivisions; and entering into agreements and compacts with adjoining states and Indian tribes, where appropriate. The State's public participation requirements and procedures fulfill the

re quirements for consultation with local political subdivisions affected by the SIP.

EPA analysis: All pertinent details of our analysis for this infrastructure element are included in
the Federal Register notice.

IV. EPA’s Recommendation

We reviewed New Mexico’s submittal, SIP, and recent air quality data for both ozone and Nitrogen Dioxide for compliance with the requirements of sections 110(a)(1) and (2) of the
Ac t for the 2008 O 3 and 2010 NO 2 NAAQS

. Based on these evaluations, we recommend that EPA propose to approve the submittal provided by the State of New Mexico to demonstrate that
the New Mexico SIP meets the applicable requirements of sections 110(a)(1) and (2) of the Act
with re spect to the 2008 ozone and 2010 Nitrogen dioxide standards. The submittal adequately

a ddress es the infrastructure elements specified in the CAA section 110(a)(2) that are necessary to implement, maintain, and enforce the 2008 ozone and 2010 NO 2 NAAQS.

We recommend approval of the New Mexico infrastructure SIP for the 2008 ozone and 2010 Nitrogen dioxide NAAQS 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) (i i) 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)Page 14 of 22

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)

V. References

1. Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013Page 15 of 22 Appendix A

EPA’s Approach to the Review of Infrastructure SIP Submissions

EPA is acting upon the SIP submissions from New Mexico that address the infrastructure

re quirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 O 3 and 2010 NO 2 NAAQS

. The requirement for states to make a SIP submissions of these types arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or

suc h shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA’s taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan”

submission must address.

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to

dist inguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions. 12 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required

for inclusion in an infrastructure SIP submission.

The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that

12 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legalauthority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIPapproved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.Page 16 of 22

this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements. 13 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated. 14 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to

infr astructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action. 15 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. Forexample, EPA has sometimes elected to act at different times on various elements and subelements of the same infrastructure SIP submission. 16

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or

re vised NAAQS. The states’ attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for

13 See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule,” 70 FR 25162, at 251 63 – 65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)).

14 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS.

15 See, e.g., “Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,” 78 FR 4339 (January 22, 2013) (EPA’s final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of
EPA’s 2008 PM 2.5 NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM 2.5 NAAQS,” (78 FR 4337) (January 22, 2013) (EPA’s final action on the infrastructure SIP for the 2006 PM 2.5 NAAQS).

16 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee’s December 14, 2007 submittal.Page 17 of 22

different pollutants, for example because the content and scope of a state’s infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS. 17

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to

indi vidual SIP submissions for particular elements. 18 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance). 19 EPA developed this document to provide states with up- to -date guidance for infrastructure SIPs for any new or revised NAAQS.

W ithin this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2)

that are relevant in the context of infrastructure SIP submissions. 20 The guidance also discusses

17 For example, implementation of the 1997 PM 2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS.

18 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for
infrastructure SIP submissions

. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate

. 19 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.

20 EPA’s September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City , 696 F.3d7 (D.C. Cir. 2012) which had interpretedPage 18 of 22

the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state’s SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA’s interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state’s permitting or enforcement

progr am ( e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA’s evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

As another example, EPA’s review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA’s PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including GHGs. By contrast, structural PSD program requirements do not include provisions that are not required under EPA’s regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM 2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an

infrastructure SIP action.

For other section 110(a)(2) elements, however, EPA’s review of a state’s infrastructure SIP submission focuses on assuring that the state’s SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor new source review program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state’s existing minor source program ( i.e., already in the existing SIP) for compliance with the requirements of the

CA A and EPA’s regulations that pertain to such programs.

With respect to certain other issues, EPA does not believe that an action on a state’s infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state’s existing SIP. These issues include: (i) existing provisions related

the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state’s CAA obligations.Page 19 of 22

to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA’s policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director’s variance” or “director’s discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA’s “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions. 21 It is important to note that EPA’s approval of a state’s infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

EPA’s approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state’s existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, EPA’s 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state’s SIP is substantially inadequate to attain or

21 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of
the action on the infrastructure SIP

.Page 20 of 22

maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA. 22 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP

submissions. 23 Significantly, EPA’s determination that an action on a state’s infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA’s subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director’s discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action. 24

22 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events

. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011).

23 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010)

. EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).

24 See, e.g., EPA’s disapproval of a SIP submission from Colorado on the grounds that it would have included a director’s discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A)

. See, e.g., 75 FR
423 42 at 42344 (July 21, 2010) (proposed disapproval of director’s discretion provisions); 76 FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).Page 21 of 22 Appendix B

EPA’s Evaluation of the June 23, 2014 United States Supreme Court Decision on

Greenhouse Gas Emissions on New Mexico’s infrastructure SIP reviews

W ith respect to the infrastructure elements contained in Section 110(a)(2)(C) and (J), EPA interprets the Clean Air Act to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of Section 110(a)(2)(D)(i)(II) may also be satisfied by demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants. New Mexico has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gases (GHGs).

On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions. (See Utility Air Regulatory Group v.

En vironmental Protection Agency, 134 S.Ct. 2427) The Supreme Court said that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that the EPA could continue to require that

P SD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT). In order to act consistently with its understanding of the Court’s decision pending further judicial action to effectuate the decision, the EPA is not continuing to apply EPA regulations that would require that SIPs include permitting requirements that the Supreme Courtfound impermissible. Specifically, EPA is not applying the requirement that a state’s SIPapproved PSD program require that sources obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to revise federal PSD rules in light of the Supreme Court opinion. In addition, EPA anticipates that many states will revise their existing SIP-approved PSD programs in light of the Supreme Court’s decision. The timing and content of subsequent EPA actions with respect to the EPA regulations and state PSD program approvals are expected to be informed by additional legal process before the

United St ates Court of Appeals for the District of Columbia Circuit. At this juncture, EPA is not expecting states to have revised their PSD programs for purposes of infrastructure SIP submissions and is only evaluating such submissions to assure that the state’s program correctly addresses GHGs consistent with the Supreme Court’s decision.

EPA has previously approved New Mexico SIP revisions submitted to align the state’s PSD program rules for GHGs with federal requirements (76 FR 43149). At present, EPA has determined the New Mexico SIP is sufficient to satisfy the infrastructure elements of Sections 110(a)(2)(C), (D)(i)(II), and (J) with respect to GHGs because the PSD permitting program previously approved by EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT. Although the approved New Mexico PSD permitting program may currently contain provisions that are no longer necessary in light of the Supreme Court decision, this does not render the infrastructure SIP submission inadequate toPage 22 of 22

satisfy the infrastructure elements of Sections 110(a)(2)(C), (D)(i)(II), and (J). The SIP contains

the ne cessary PSD requirements at this time, and the application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of sources of GHGs that EPA does not consider necessary at this time in light of the Supreme Court decision. Accordingly, the Supreme Court decision does not affect EPA’s proposed approval of New Mexico’s infrastructure SIP as to the requirements of the infrastructure elements of Sections 110(a)(2)(C), (D)(i)(II), and (J).