New Mexico State Implementation Plan Elements 

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

2008 Ozone (O3) and 2010 Nitrogen Dioxide (NO2) National Ambient Air Quality 

Standards (NAAQS) 

Interstate Transport of Air Pollution Affecting Visibility 

Docket ID EPA-R06-OAR-2014-0270 

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 

Department (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 (O3) 

and the 2010 NAAQS for nitrogen dioxide (NO2). 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 

SIP satisfies the section 110(a)(2) requirements, is provided 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 

response that are not included in the Federal 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 

June 12, 2009 SIP submittal for the 2006 fine particulate matter (PM2.5) NAAQS pertaining to 

interstate transport of air pollution and visibility protection. EPA previously disapproved the 

New 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 

this 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 

CAA 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, 1971, we published the first NAAQS for ozone (36 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 

were reviewed in 1979, 1993, 1997 and 2008, 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 16483, March 27, 2008). For more 

information on these standards, please see the EPA web site on the ozone NAAQS1

and its 

history.2

As with O3, the first NAAQS for nitrogen dioxide were published on April 30, 1971 (36 

FR 8186). Both the primary and secondary standards were set at 53 parts per billion (ppb). 

These standards were reviewed in 1985, 1996, and 2010. Following the 2010 evaluation, EPA 

published a revision to the primary NO2 NAAQS in order to provide greater protection of public 

health. Specifically, EPA established a new 1-hour standard at a level of 100 ppb, based on the 3 

year average of the 98th percentile of the yearly distribution of 1-hour daily maximum 

concentrations, to supplement the existing annual standard (75 FR 6474, February 9, 2010). For 

more information on these standards, please see the EPA web site on the ozone NAAQS3and its 

history4

. 

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. 

Section III of this TSD provides a description of all 14 infrastructure elements that comprise 

section 110(a)(2) of the Act. The schedule for completion of EPA’s periodic review of both O3

and NO2 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 

4http://epa.gov/ttn/naaqs/standards/nox/s_nox_history.html 
Page 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 O3 and 2010 NO2 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 O3 and 2010 NO2 NAAQSs. To assist states in meeting this statutory requirement, EPA 

issued guidance on September 13, 2013, addressing the infrastructure SIP elements required 

under sections 110(a)(1) and (2) for most the NAAQS5.

On August 27, 2013, and March 12, 2014 the Cabinet Secretary of the New Mexico 

Environmental Department submitted letters certifying that NMED has evaluated the New 

Mexico SIP and found that the SIP satisfies all the requirements of section 110(a)(1) and (2) for 

the 2008 O3 and 2010 NO2 NAAQS. The submittals includes a table with an explanation of how 

the current New Mexico SIP meets the requirements of each applicable element of section 

110(a)(2) for the 2008 O3 and 2010 NO2 NAAQS. This TSD provides additional details of New 

Mexico’s certification and EPA’s evaluation that are not included in the official Federal 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 

secondary 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, 

particulate 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 

communities. 

 

 B. What is a SIP? 

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

control 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, 2013 
Page 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 PM2.5

National Ambient Air Quality Standards” in the section entitled, “What is the scope of this final 

rulemaking?” (see 76 FR 41075 at 41076-41079).

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 

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.6

 In the following sections of this document we provide additional information, not 

included 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 O3 and 2010 NO2

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 SubpartGG. 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 indicates 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. Current data shows that New Mexico meets the 

1-hour 100 ppb NO2 standard7

. Historical data has shown that NM did not exceeded the 0.075 

ppm O3

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 

enforce the 2008 O3 and 2010 NO2 NAAQS, and limit or reduce emissions of O3 and NO2. These 

rules include emission limits, control measures, as well as permits and fees. Table 1 below 

provides 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 Register10

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

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

 

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 Register10

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

20.2.60 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 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

20.2.79 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 52.1620
Page 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 

Equivalent 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 

requirements 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. As 

indicated in these documents, the 2008 O3 NAAQS, EPA regulations require that ambient O3

monitors are based on the population of each of their Metropolitan Statistical Areas (MSA) and 

the most recently measured O3 levels in each area. For the 2010 NO2 NAAQS, EPA regulations 

require that ambient NO2 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 NO2 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 NO2 concentrations representing 

neighborhood or larger (urban) spatial scale. Based on these criteria, no new NO2 monitors are 

required in regions under NMED/ AQB jurisdiction. One new O3 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 NO2 and seventeen O3 monitoring 

stations11. According to the New Mexico 2014 Annual Network Review three O3 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 regulation of the modification and construction of any stationary sources 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 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 

control measures, including attainment plans and permitting programs that regulate construction 

 

11http://www.nmenv.state.nm.us/aqb/documents/2014_AnnualNetworkReview-8-4-14AQBFINAL.pdf 
Page 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)(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 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 

sections 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 by 

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 Federal Register notice. 

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 programs. It also requires compliance with state board composition and conflicts of 

interest 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, 

section 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 O3 and 2010 NO2 NAAQS. The State does not anticipate the need for 

additional resources to implement the SIP beyond those that have been utilized for the 
Page 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 

Environmental 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/ 

Bernalillo 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 O3 and the 2010 NO2 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 (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. New Mexico also 

asserts that enforceable emission limitations and other control measures are addressed 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: 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 O3 and 2010 NO2 NAAQS, the State of New 

Mexico indicates that existing statutes provide adequate authority to constrain any sources of O3

or NO2 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 

contributing 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 

pending litigation. 

 New Mexico adopted an Air Pollution Episode Contingency Plan (55 FR 34013, August 

21, 1990), that addresses air pollution episodes and the occurrence of an emergency due to the 

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

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

an 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 

pollutants: Sulfur dioxide, particulate matter, 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 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 NO2.

Table 6: Classification of Regions for Episode Plans for Ozone and Nitrogen Dioxide 

(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

Nitrogen 

Dioxide

Ambient concentrations

> 100 μg/m3(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, 

EPA expects that for purposes of the 2008 8-hour ozone NAAQS, states need only to confirm 

that they have existing emergency episode plan provisions consistent with EPA’s existing 

regulatory requirements. 

The SHL for the 1 hour average NO2 NAAQS will remain unchanged as 2 ppm, 24-hour 

average will remain 0.5 ppm as indicated in 40 CFR 51 

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 
Page 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 NO2 NAAQS are appropriate at this time. 

New 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 

pollutants 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 

Dioxide. 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 NO2 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 board the authority to adopt regulations to abate, control, and prohibit air pollution 

throughout 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 O3 and NO2 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 NO2, this 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 with 
Page 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 

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: 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 

Mexico 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 

deterioration. 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. 

 

11. 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 request. 

EPA analysis: All pertinent details of our analysis for this infrastructure element are included in 

the Federal Register notice. 

12. 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 (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 SIP (11/25/97, 62 
Page 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. 

13. 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 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 

and 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 

requirements 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 

Act for the 2008 O3 and 2010 NO2 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 respect to the 2008 ozone and 2010 Nitrogen dioxide standards. The submittal adequately 

addresses the infrastructure elements specified in the CAA section 110(a)(2) that are necessary to 

implement, maintain, and enforce the 2008 ozone and 2010 NO2 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)(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) 
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, 2013 
Page 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 

requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 O3 and 2010 NO2 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 

such 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 

distinguish 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 legal 

authority 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 

infrastructure 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. For 

example, 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 

revised 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 25163 – 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 PM2.5 NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; 

Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,” (78 FR 4337) (January 22, 2013) 

(EPA’s final action on the infrastructure SIP for the 2006 PM2.5 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 

individual 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. 

Within 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 PM2.5 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 interpreted 
Page 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 

program (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 PM2.5 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 

CAA 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 

42342 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 

With 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. 

Environmental 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 

PSD 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 Court 

found 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 States 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 to 
Page 22 of 22

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

the necessary 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).