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[Federal Register Volume 77, Number 72 (Friday, April 13, 2012)]
[Proposed Rules]
[Pages 22249-22266]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8927]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2009-0648; FRL-9658-2]

Approval and Promulgation of Implementation Plans; New Mexico; 
Albuquerque/Bernalillo County: Infrastructure and Interstate Transport 
Requirements for the 1997 and 2008 Ozone and the 1997 and 2006 PM2.5 
NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve submittals from the Governor of 
New Mexico to the State Implementation Plan (SIP) for the City of 
Albuquerque/Bernalillo County area, pursuant to the Clean Air Act (CAA 
or the Act) that address the infrastructure elements specified in the 
CAA section 110(a)(2), necessary to implement, maintain, and enforce 
the 1997 and 2008 8-hour ozone and the 1997 and 2006 fine particulate 
matter (PM2.5) national ambient air quality standards (NAAQS 
or standards). We are proposing to find that the current Albuquerque/
Bernalillo County SIP meets the following infrastructure elements for 
the 1997 and 2008 8-hour ozone NAAQS and the 1997 and 2006 
PM2.5 NAAQS: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), 
(H), (J), (K), (L), and (M). We are also proposing to find that the 
current Albuquerque/Bernalillo County SIP meets one of the four 
provisions of CAA section 110(a)(2)(D)(i), which addresses the 
requirement that emissions from sources in the area do not interfere 
with measures required in the SIP of any other state under part C of 
the CAA to prevent significant deterioration (PSD) of air quality, with 
regard to the 1997 and 2008 ozone and 1997 and 2006 PM2.5 
NAAQS. EPA is also proposing to approve SIP revisions that modify the 
PSD SIP to include nitrogen oxides (NOX) as an ozone 
precursor. For purposes of the 1997 and 2006 PM2.5 NAAQS, 
EPA is proposing to approve revisions to the Albuquerque/Bernalillo 
County PSD SIP that identify the PM2.5 precursors and 
establish significant emission rates for said precursors, consistent 
with the federal requirements. We are also proposing to approve other 
revisions to the Albuquerque/Bernalillo County PSD SIP to maintain 
consistency with the federal PSD permitting requirements. In addition 
to these revisions, EPA is proposing to approve other revisions to the 
Albuquerque/Bernalillo County SIP

[[Page 22250]]

necessary to implement Ambient Air Quality Standards (AAQS). These 
actions are taken under section 110 and part C of the Act.

DATES: Comments must be received on or before May 14, 2012.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2009-0648, by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6comment.htm. Please click on ``6PD (Multimedia)'' and select 
``Air'' before submitting comments.
     Email: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please 
also send a copy by email to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not 
on legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2009-0648. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Planning Section 
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an 
appointment. If possible, please make the appointment at least two 
working days in advance of your visit. There will be a fee of 15 cents 
per page for making photocopies of documents. On the day of the visit, 
please check in at the EPA Region 6 reception area at 1445 Ross Avenue, 
Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection during 
official business hours, by appointment, at the City of Albuquerque, 
Environmental Health Department--Air Quality Division, One Civic Plaza, 
Room 3047, Albuquerque, New Mexico 87103, telephone 505-768-1972, email 
address aqd@cabq.gov.

FOR FURTHER INFORMATION CONTACT: Mr. John Walser, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7128; fax number 
214-665-6762; email address walser.john@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means EPA.

Table of Contents

I. Background
    A. What are the National Ambient Air Quality Standards?
    B. What is a SIP?
    C. What is the background for this rulemaking?
    1. Section 110(a)(1) and (2) Infrastructure SIP Elements
    2. Section 110(a)(2)(D)(i) Interstate Transport SIP Elements
    3. Revisions to the Albuquerque/Bernalillo County PSD SIP
    a. Revisions To Address the 1997 and 2008 8-Hour Ozone NAAQS
    b. Revisions To Address the 1997 and 2006 PM2.5 NAAQS
    c. Revisions To Address the Greenhouse Gas (GHG) Permitting 
Requirements
    d. Revisions To Maintain Consistency With the Federal PSD 
Requirements
    4. Additional Revisions to the Albuquerque/Bernalillo County SIP
    D. What elements are required under section 110(a)(2)?
II. What action is EPA proposing?
    A. Section 110(a)(1) and (2)
    B. PSD Requirements
    C. Additional SIP Revisions
III. How do the revisions to the Albuquerque/Bernalillo County PSD 
SIP meet EPA requirements?
    A. Revisions To Address the 1997 and 2008 8-Hour Ozone NAAQS
    B. Revisions To Address the 2008 PM2.5 NSR Rule
    C. Revisions To Address GHG Permitting Requirements
    D. Revisions To Maintain Consistency With the Federal PSD 
Requirements
IV. How has Albuquerque/Bernalillo County addressed the elements of 
section 110(a)(2)?
V. Additional Revisions to the Albuquerque/Bernalillo County SIP
VI. Proposed Action
VII. Statutory and Executive Order Reviews

I. Background

    The Albuquerque/Bernalillo County Air Quality Control Board (AQCB) 
is the federally delegated air quality authority for the City of 
Albuquerque and Bernalillo County, New Mexico. Section 74-2-4 of the 
New Mexico Air Quality Control Act (AQCA) authorizes Albuquerque/
Bernalillo County to locally administer and enforce the State Air 
Quality Control Act by providing for a local air quality control 
program. Thus, state law views Albuquerque/Bernalillo County and the 
State of New Mexico as distinct air quality control entities. 
Therefore, each entity is required to submit its own SIP in order to 
satisfy the requirements of section 110(a)(1) and (2) of the CAA and 
the AQCA, and to require local air pollution sources to comply with air 
quality standards. The AQCB is responsible for the portion of the New 
Mexico SIP that applies in Bernalillo County (excluding Tribal Land), 
which encompasses the

[[Page 22251]]

City of Albuquerque. As required by 40 CFR Part 51, the Governor of New 
Mexico has submitted SIP revisions, on behalf of the Albuquerque/
Bernalillo County, under the AQCA (section 74-2-4), to satisfy the 
requirements of section 110(a)(2) and 110(a)(2)(D)(i) of the CAA for 
the Albuquerque/Bernalillo County area.\1\ Because of Albuquerque/
Bernalillo County's separate authority and SIP, it is necessary to 
separately address the requirements of 110(a)(2) for this portion of 
the State in order to ensure that the requirements are satisfied for 
the entire State of New Mexico.
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    \1\ This proposed rulemaking does not apply to Tribal Lands 
encompassed within the Albuquerque/Bernalillo County area.
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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: carbon monoxide, lead, nitrogen dioxide, ozone, particulate 
matter (PM), and sulfur dioxide. These standards present state and 
local governments with the minimum air quality levels they must meet to 
comply with the Act. Also, these standards provide information to 
residents of the United States about the air quality in their 
communities.

B. What is a SIP?

    The SIP is a set of air pollution regulations, control strategies, 
other means or techniques, and technical analyses developed by the 
state (or in this case, local) air pollution control agency, 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. Another important aspect of the SIP is to 
ensure that emissions from within the state do not have certain 
prohibited impacts on the ambient air in other states through 
interstate transport of pollutants. This SIP requirement is specified 
in section 110(a)(2)(D) of the CAA. Pursuant to that section, each 
state's SIP must contain provisions adequate to prevent, among other 
things, emissions that interfere with measures required to be included 
in the SIP of any other state to prevent significant deterioration of 
air quality in any other state. Each EPA-approved SIP protects air 
quality primarily by addressing air pollution at its point of origin.

C. What is the background for this rulemaking?

    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 emission inventories, new 
source review (NSR), air pollution control measures, and monitoring 
that are designed to assure attainment and maintenance of the NAAQS. 
Table 1 in Section D of this rulemaking provides a list of all 14 
infrastructure elements.\2\ EPA refers to the requirements of section 
110(a)(2)(A)-(C), (D)(ii), (E)-(H), and (J)-(M) as the 
``infrastructure'' SIPs. Additionally, EPA refers to the requirements 
of section 110(a)(2)(D)(i) as the ``interstate transport'' SIPs. EPA 
provided separate guidance to states on each type of SIP, 
infrastructure and interstate transport, and these actions are on 
separate tracks and timelines.
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    \2\ Two elements identified in section 110(a)(2) are not 
governed by the 3-year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within 3 years after promulgation of a new or 
revised NAAQS, but rather are due at the time the nonattainment area 
plan requirements are due pursuant to section 172 of the CAA. These 
elements are: (1) Submissions required by section 110(a)(2)(C) to 
the extent that subsection refers to a permit program as required in 
part D Title I of the CAA and (2) submissions required by section 
110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D Title I of the CAA. Therefore, this action 
does not cover these specific SIP elements.
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1. Section 110(a)(1) and (2) Infrastructure SIP Elements
    On July 18, 1997, we published new and revised NAAQS for ozone (62 
FR 38856) and PM (62 FR 38652). For ozone, we set an 8-hour standard of 
0.08 parts per million (ppm) to replace the 1-hour standard of 0.12 
ppm. For PM we set a new annual and a new 24-hour NAAQS for particles 
with an aerodynamic diameter less than or equal to a nominal 2.5 
micrometers (denoted PM2.5). The annual PM2.5 
standard was set at 15 micrograms per cubic meter ([mu]g/m\3\). The 24-
hour PM2.5 standard was set at 65 [mu]g/m\3\. On October 17, 
2006, we published revised standards for PM (71 FR 61144). For 
PM2.5, the annual standard of 15 [mu]g/m\3\ was retained, 
and the 24-hour standard was revised to 35 [mu]g/m\3\. For 
PM10 the annual standard was revoked, and the 24-hour 
standard (150 [mu]g/m\3\) was retained. On March 27, 2008, we published 
revised standards for ozone (73 FR 16436) of 0.75 ppm to replace the 
1997 8-hour standard of 0.08 ppm. For more information on these 
standards, please see the 1997, 2006, and 2008 Federal Register notices 
(62 FR 38856, 62 FR 38652, 71 FR 61144, and 73 FR 16436).
    Thus, states were required to submit such SIPs for the 1997 8-hour 
ozone and PM2.5 NAAQS to EPA no later than June 2000.\3\ 
However, intervening litigation over the 1997 8-hour ozone and 
PM2.5 NAAQS created uncertainty about how to proceed, and 
many states did not provide the required ``infrastructure'' SIP 
submission for these newly promulgated NAAQS.
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    \3\ EPA issued a revised 8-hour ozone standard on March 27, 2008 
(73 FR 16436). On September 16, 2009, the EPA Administrator 
announced that EPA would take rulemaking action to reconsider the 
2008 primary and secondary ozone NAAQS. On January 19, 2010, EPA 
proposed to set different primary and secondary ozone standards than 
those set in 2008 to provide requisite protection of public health 
and welfare, respectively (75 FR 2938). The final reconsidered ozone 
NAAQS have yet to be promulgated.
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    On March 4, 2004, Earthjustice submitted a notice of intent to sue 
related to EPA's failure to issue findings of failure to submit related 
to the infrastructure requirements for the 1997 8-hour ozone and 
PM2.5 NAAQS. EPA entered into a consent decree with 
Earthjustice which required EPA, among other things, to complete a 
Federal Register notice announcing EPA's determinations pursuant to 
section 110(k)(1)(B) of the Act as to whether each state had made 
complete submissions to meet the requirements of section 110(a)(2) for 
the 1997 8-hour ozone NAAQS by December 15, 2007. Subsequently, EPA 
received an extension of the date to complete this Federal Register 
notice until March 17, 2008, based upon agreement to make the findings 
with respect to submissions made by January 7, 2008. In accordance with 
the consent decree, EPA made completeness findings for each state based 
upon what the Agency had received from each state as of January 7,

[[Page 22252]]

2008. With regard to the 1997 PM2.5 NAAQS, EPA entered into 
a consent decree with Earthjustice, which required EPA, among other 
things, to complete a Federal Register notice announcing EPA's 
determinations pursuant to section 110(k)(1)(B) of the Act as to 
whether each state had made complete submissions to meet the 
requirements of section 110(a)(2) for the 1997 PM2.5 NAAQS 
by October 5, 2008.
    On March 27, 2008 and October 22, 2008, we published findings 
concerning whether states had made the 110(a)(2) submissions for the 
1997 ozone (73 FR 16205) and PM2.5 standards (73 FR 62902). 
In the March 27, 2008 action, we found that New Mexico (including 
Albuquerque/Bernalillo County) addressed all but one of the 
requirements of section 110(a)(2) of the Act necessary to implement the 
1997 ozone NAAQS. As required by section 110(a)(2)(C) and (J), New 
Mexico failed to submit a SIP addressing changes to the part C 
Prevention of Significant Deterioration (PSD) permit program required 
by the November 29, 2005 (70 FR 71612, page 71699) final rule that made 
NOX a precursor for ozone in the part C regulations at 40 
CFR 51.166 and in 40 CFR 52.21. Subsequent to this finding, the 
Albuquerque/Bernalillo County PSD program was revised to implement the 
8-hour ozone NAAQS by adopting regulations to implement NOX 
as a precursor for ozone on December 22, 2005 and April 13, 2006. These 
revisions were submitted as SIP revisions by the Governor of New Mexico 
on May 24, 2006. EPA SIP-approved the December 22, 2005 PSD revisions 
on April 26, 2007 (72 FR 20728). In the October 22, 2008 action, we 
found that New Mexico (including Albuquerque/Bernalillo County) made 
complete submissions intended to provide for the basic program elements 
specified in section 110(a)(2) of the Act necessary to implement the 
1997 PM2.5 NAAQS.
    On October 2, 2007 we issued ``Guidance on SIP Elements Required 
Under Section 110(a)(1) and (2) for the 1997 8-hour Ozone and 
PM2.5 National Ambient Air Quality Standards,'' Memorandum 
from William T. Harnett, Director, Air Quality Policy Division (AQPD), 
Office of Air Quality Planning and Standards (OAQPS).\4\ On September 
25, 2009, we issued ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) 
National Ambient Air Quality Standards (NAAQS),'' Memorandum also from 
William T. Harnett, Director, AQPD, OAQPS. Each of these guidance memos 
addresses the SIP elements found in 110(a)(2). In each of these 
guidance memos, the guidance states that, to the extent that existing 
SIPs already meet the requirements, states need only certify that fact 
to us.
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    \4\ This and any other guidance documents referenced in this 
action are in the docket for this rulemaking.
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    On December 11, 2007, EPA received a SIP submittal from 
Albuquerque/Bernalillo County, certifying that its portion of the New 
Mexico SIP includes all the requirements in section 110(a)(1) and (2) 
of the Act for implementation of the 1997 8-hour ozone NAAQS.
    On April 7, 2008 the Governor of New Mexico submitted a 
certification letter addressing Albuquerque/Bernalillo County's 
requirements under section 110(a)(1) and (2) of the Act for 
implementation of the 1997 PM2.5 NAAQS. The letter certified 
what sections of the New Mexico SIP (including Albuquerque/Bernalillo 
County) were met, as well as what sections needed to be revised to 
comply with the 110(a)(1) and (2) requirements.\5\ The letter 
identified proposed revisions to the Albuquerque/Bernalillo County SIP 
and a timeline for finalizing the revisions.
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    \5\ Specifically, the letter stated that New Mexico needed to 
revise its rules as follows: To include PM2.5 in its 
definition of major sources; to include PM2.5 in the 
definition of NAAQS and precursors of a criteria pollutant; to 
include significant harm levels for PM2.5; and to include 
NOX as a precursor for ozone.
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    On May 24, 2006 and August 16, 2010, the Governor of New Mexico 
submitted revisions to the Albuquerque/Bernalillo County portion of the 
New Mexico SIP to adopt and implement PSD permitting regulations to 
meet the federal requirements for implementation of the 2006 
PM2.5 NAAQS. The submissions also included revisions to the 
SIP to provide for NOX to be treated as a precursor to ozone 
formation in the preconstruction permitting program for PSD. Also in 
the August 16, 2010 submittal, the Governor included an Infrastructure 
SIP ``Completeness Checklist,'' certifying how Albuquerque/Bernalillo 
County met all the requirements of section 110(a)(1) and (2) of the 
Act. We are proposing action on these items in today's rulemaking.
    Additional information: EPA is currently acting upon SIPs that 
address the infrastructure requirements of CAA section 110(a)(1) and 
(2) for ozone and PM2.5 NAAQS for various states across the 
country. Commenters on EPA's recent proposals for some states raised 
concerns about EPA statements that it was not addressing certain 
substantive issues in the context of acting on those infrastructure SIP 
submissions.\6\ Those commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements in other 
proposals that it would address two issues separately and not as part 
of actions on the infrastructure SIP submissions: (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''); and (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''). EPA notes that there are two other substantive issues 
for which EPA likewise stated in other proposals that it would address 
the issues separately: (i) Existing provisions for minor source new 
source review programs that may be inconsistent with the requirements 
of the CAA and EPA's regulations that pertain to such programs (``minor 
source NSR''); and (ii) existing provisions for Prevention of 
Significant Deterioration 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''). In light of the comments, EPA believes that its 
statements in various proposed actions on infrastructure SIPs with 
respect to these four individual issues should be explained in greater 
depth. It is important to emphasize that EPA is taking the same 
position with respect to these four substantive issues in this action 
on the infrastructure SIP submittals for the 1997 and 2008 8-hour ozone 
NAAQS and the 1997 and 2006 PM2.5 NAAQS submissions from 
Albuquerque/Bernalillo County.
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    \6\ See, Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5). EPA notes that 
these public comments on another proposal are not relevant to this 
rulemaking and do not have to be directly addressed in this 
rulemaking. EPA will respond to these comments in the appropriate 
rulemaking action to which they apply.
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    EPA intended the statements in the other proposals concerning these 
four issues merely to be informational, and to provide general notice 
of the potential existence of provisions within the existing SIPs of 
some states that might require future corrective action. EPA did not 
want states, regulated entities, or members of the public to be under 
the misconception that the

[[Page 22253]]

Agency's approval of the infrastructure SIP submission of a given state 
should be interpreted as a re-approval of certain types of provisions 
that might exist buried in the larger existing SIP for such state. 
Thus, for example, EPA explicitly noted that the Agency believes that 
some states may have existing SIP approved SSM provisions that are 
contrary to the CAA and EPA policy, but that ``in this rulemaking, EPA 
is not proposing to approve or disapprove any existing State provisions 
with regard to excess emissions during SSM of operations at 
facilities.'' EPA further explained, for informational purposes, ``EPA 
plans to address such State regulations in the future.'' EPA made 
similar statements, for similar reasons, with respect to the director's 
discretion, minor source NSR, and NSR Reform issues. EPA's objective 
was to make clear that approval of an infrastructure SIP for these 
ozone and PM2.5 NAAQS should not be construed as explicit or 
implicit reapproval of any existing provisions that relate to these 
four substantive issues. EPA is reiterating that position in this 
action on these infrastructure SIP submittals for Albuquerque/
Bernalillo County.
    Unfortunately, the commenters and others evidently interpreted 
these statements to mean that EPA considered action upon the SSM 
provisions and the other three substantive issues to be integral parts 
of acting on an infrastructure SIP submission, and therefore that EPA 
was merely postponing taking final action on the issues in the context 
of the infrastructure SIPs. This was not EPA's intention. To the 
contrary, EPA only meant to convey its awareness of the potential for 
certain types of deficiencies in existing SIPs, and to prevent any 
misunderstanding that it was reapproving any such existing provisions. 
EPA's intention was to convey its position that the statute does not 
require that infrastructure SIPs address these specific substantive 
issues in existing SIPs and that these issues may be dealt with 
separately, outside the context of acting on the infrastructure SIP 
submission of a state. To be clear, EPA did not mean to imply that it 
was not taking a full final agency action on the infrastructure SIP 
submission with respect to any substantive issue that EPA considers to 
be a required part of acting on such submissions under section 110(k) 
or under section 110(c). Given the confusion evidently resulting from 
EPA's statements in those other proposals, however, we want to explain 
more fully the Agency's reasons for concluding that these four 
potential substantive issues in existing SIPs may be addressed 
separately from actions on infrastructure SIP submissions.
    The requirement for the SIP submissions at issue arises out of CAA 
section 110(a)(1). That provision requires that states must make a SIP 
submission ``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 
that these SIPs are to provide for the ``implementation, maintenance, 
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of 
specific elements that ``[e]ach such plan'' submission must meet. EPA 
has historically referred to these particular submissions that states 
must make after the promulgation of a new or revised NAAQS as 
``infrastructure SIPs.'' This specific term does not appear in the 
statute, but EPA uses the term to distinguish this particular type of 
SIP submission designed to address basic structural requirements of a 
SIP from other types of SIP submissions designed to address other 
different requirements, such as ``nonattainment SIP'' submissions 
required to address the nonattainment planning requirements of part D, 
``regional haze SIP'' submissions required to address the visibility 
protection requirements of CAA section 169A, new source review 
permitting program submissions required to address the requirements of 
part D, and a host of other specific types of SIP submissions that 
address other specific matters.
    Although section 110(a)(1) addresses the timing and general 
requirements for these infrastructure SIPs, and section 110(a)(2) 
provides more details concerning the required contents of these 
infrastructure SIPs, EPA believes that many of the specific statutory 
provisions are facially ambiguous. In particular, 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 provisions, 
and some of which pertain to requirements for both authority and 
substantive provisions.\7\ Some of the elements of section 110(a)(2) 
are relatively straightforward, but others clearly require 
interpretation by EPA through rulemaking, or recommendations through 
guidance, in order to give specific meaning for a particular NAAQS.\8\
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    \7\ For example, section 110(a)(2)(E) 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 substantive program to address 
certain sources as required by part C of the CAA; section 
110(a)(2)(G) provides that states must have both legal authority to 
address emergencies and substantive contingency plans in the event 
of such an emergency.
    \8\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 
that each state's SIP contains adequate provisions to prevent 
significant contribution to nonattainment of the NAAQS in other 
states. This provision contains numerous terms that require 
substantial rulemaking by EPA in order to determine such basic 
points as what constitutes significant contribution. 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 
(May 12, 2005) (defining, among other things, the phrase 
``contribute significantly to nonattainment'').
---------------------------------------------------------------------------

    Notwithstanding that section 110(a)(2) provides that ``each'' SIP 
submission must meet the list of requirements therein, EPA has long 
noted that this literal reading of the statute is internally 
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 
SIP requirements that could not be met on the schedule provided for 
these SIP submissions in section 110(a)(1).\9\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Similarly, EPA 
has previously decided that it could take action on different parts of 
the larger, general ``infrastructure SIP'' for a given NAAQS without 
concurrent action on all subsections, such as section 110(a)(2)(D)(i), 
because the Agency bifurcated the action on these latter ``interstate 
transport'' provisions within section 110(a)(2) and worked with states 
to address each of the four prongs of section 110(a)(2)(D)(i) with 
substantive administrative actions proceeding on different tracks with 
different schedules.\10\ This illustrates that EPA may conclude that 
subdividing the applicable requirements of section 110(a)(2) into 
separate SIP actions may sometimes be appropriate for a given NAAQS 
where a specific substantive action is necessitated, beyond a mere 
submission addressing basic structural aspects of the state's SIP. 
Finally, EPA notes that not every element of section

[[Page 22254]]

110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS and the attendant infrastructure SIP 
submission for that NAAQS. For example, the monitoring requirements 
that might be necessary for purposes of section 110(a)(2)(B) for one 
NAAQS could be very different than what might be necessary for a 
different pollutant. Thus, the content of an infrastructure SIP 
submission to meet this element from a state might be very different 
for an entirely new NAAQS, versus a minor revision to an existing 
NAAQS.\11\
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    \9\ See, e.g., Id., 70 FR 25162, at 63-65 (May 12, 2005) 
(explaining relationship between timing requirement of section 
110(a)(2)(D) versus section 110(a)(2)(I)).
    \10\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM2.5 NAAQS. See, ``Guidance for State 
Implementation Plan (SIP) Submissions to Meet Current Outstanding 
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards,'' from 
William T. Harnett, Director AQPD, OAQPS, to Regional Air Division 
Directors, Regions I-X, dated August 15, 2006.
    \11\ 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.
---------------------------------------------------------------------------

    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need to address the requirements of section 110(a)(2)(G) 
with respect to emergency episodes, as such requirements would not be 
limited to nonattainment areas. As this example illustrates, each type 
of SIP submission may implicate some subsections of section 110(a)(2) 
and not others.
    Given the potential for ambiguity of the statutory language of 
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 
to interpret that language in the context of acting on the 
infrastructure SIPs for a given NAAQS. Because of the inherent 
ambiguity of the list of requirements in section 110(a)(2), EPA has 
adopted an approach in which it reviews infrastructure SIPs against 
this list of elements ``as applicable.'' In other words, EPA assumes 
that Congress could not have intended that each and every SIP 
submission, regardless of the purpose of the submission or the NAAQS in 
question, would meet each of the requirements, or meet each of them in 
the same way. EPA elected to use guidance to make recommendations for 
infrastructure SIPs for these ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS.\12\ Within this guidance document, 
EPA described the duty of states to make these submissions to meet what 
the Agency characterized as the ``infrastructure'' elements for SIPs, 
which it further described as the ``basic SIP requirements, including 
emissions inventories, monitoring, and modeling to assure attainment 
and maintenance of the standards.'' \13\ As further identification of 
these basic structural SIP requirements, ``attachment A'' to the 
guidance document included a short description of the various elements 
of section 110(a)(2) and additional information about the types of 
issues that EPA considered germane in the context of such 
infrastructure SIPs. EPA emphasized that the description of the basic 
requirements listed on attachment A was not intended ``to constitute an 
interpretation of'' the requirements, and was merely a ``brief 
description of the required elements.'' \14\ EPA also stated its belief 
that with one exception, these requirements were ``relatively self 
explanatory, and past experience with SIPs for other NAAQS should 
enable States to meet these requirements with assistance from EPA 
Regions.'' \15\ For the one exception to that general assumption, 
however, i.e., how states should proceed with respect to the 
requirements of section 110(a)(2)(G) for the 1997 PM2.5 
NAAQS, EPA gave much more specific recommendations. But for other 
infrastructure SIP submittals, and for certain elements of the 
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each 
State would work with its corresponding EPA regional office to refine 
the scope of a State's submittal based on an assessment of how the 
requirements of section 110(a)(2) should reasonably apply to the basic 
structure of the State's SIP for the NAAQS in question.
---------------------------------------------------------------------------

    \12\ See, ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director AQPD, OAQPS, to Air Division Directors, Regions I-X, dated 
October 2, 2007 (the ``2007 Guidance'').
    \13\ Id., at page 2.
    \14\ Id., at attachment A, page 1.
    \15\ Id., at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicates that the statute is not so ``self explanatory,'' and 
indeed is sufficiently ambiguous that EPA needs to interpret it in 
order to explain why these substantive issues do not need to be 
addressed in the context of infrastructure SIPs and may be addressed 
at other times and by other means.
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    On September 25, 2009, EPA issued guidance to make recommendations 
to states with respect to the infrastructure SIPs for the 2006 
PM2.5 NAAQS.\16\ In the 2009 Guidance, EPA addressed a 
number of additional issues that were not germane to the infrastructure 
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but 
were germane to these SIP submissions for the 2006 PM2.5 
NAAQS, e.g., the requirements of section 110(a)(2)(D)(i) that EPA had 
bifurcated from the other infrastructure elements for those specific 
1997 ozone and PM2.5 NAAQS.
---------------------------------------------------------------------------

    \16\ See, ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
from William T, Harnett, Director AQPD, OAQPS, to Regional Air 
Division Directors, Regions I-X, dated September 25, 2009 (the 
``2009 Guidance'').
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    Significantly, neither the 2007 Guidance nor the 2009 Guidance 
explicitly referred to the SSM, director's discretion, minor source 
NSR, or NSR Reform issues as among specific substantive issues EPA 
expected states to address in the context of the infrastructure SIPs, 
nor did EPA give any more specific recommendations with respect to how 
states might address such issues even if they elected to do so. The SSM 
and director's discretion issues implicate section 110(a)(2)(A), and 
the minor source NSR and NSR Reform issues implicate section 
110(a)(2)(C). In the 2007 Guidance and the 2009 Guidance, however, EPA 
did not indicate to states that it intended to interpret these 
provisions as requiring a substantive submission to address these 
specific issues in existing SIP provisions in the context of the 
infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance 
merely indicated its belief that the states should make submissions in 
which they established that they have the basic SIP structure necessary 
to implement, maintain, and enforce the NAAQS. EPA believes that states 
can establish that they have the basic SIP structure, notwithstanding 
that there may be potential deficiencies within the existing SIP. Thus, 
EPA's proposals for other states mentioned these issues not because the 
Agency considers them issues that must be addressed in the context of 
an infrastructure SIP as required by section 110(a)(1) and (2), but 
rather because EPA wanted to be clear that it considers these potential 
existing SIP problems as separate from the pending infrastructure SIP 
actions. The same holds true for this action on the infrastructure SIP 
submittals for Albuquerque/Bernalillo County.
    EPA believes that this approach to the infrastructure SIP 
requirement is reasonable, because it would not be feasible to read 
section 110(a)(1) and (2) to require a top to bottom, stem to stern,

[[Page 22255]]

review of each and every provision of an existing SIP 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 that, 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 considers the overall effectiveness of the 
SIP. To the contrary, EPA believes that a better approach is for EPA to 
determine which specific SIP elements from section 110(a)(2) are 
applicable to an infrastructure SIP for a given NAAQS, and to focus 
attention on those elements that are most likely to need a specific SIP 
revision in light of the new or revised NAAQS. Thus, for example, EPA's 
2007 Guidance specifically directed states to focus on the requirements 
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of 
the absence of underlying EPA regulations for emergency episodes for 
this NAAQS and an anticipated absence of relevant provisions in 
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of 
section 110(a)(1) and (2) because the statute provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow the Agency to take appropriate 
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 maintain the NAAQS, to mitigate 
interstate transport, or otherwise to comply with the CAA.\17\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\18\ Significantly, EPA's 
determination that an action on the infrastructure SIP submittal is not 
the appropriate time and place to address all potential existing SIP 
problems does not preclude the Agency's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action 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 the infrastructure SIP, EPA 
believes that section 110(a)(2)(A) may be among the statutory bases 
that the Agency cites in the course of addressing the issue in a 
subsequent action.\19\
---------------------------------------------------------------------------

    \17\ EPA has recently issued a SIP call to rectify a specific 
SIP deficiency related to the SSM issue. See, ``Finding of 
Substantial Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' 76 FR 21639 (April 18, 2011).
    \18\ EPA has recently utilized 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 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).
    \19\ EPA has recently disapproved 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 (January 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

2. Section 110(a)(2)(D)(i) Interstate Transport SIP Elements
    Section 110(a)(2)(D)(i) pertains to interstate transport of certain 
emissions. On August 15, 2006, the EPA issued its ``Guidance for State 
Implementation Plan (SIP) Submission to Meet Current Outstanding 
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' (2006 
Guidance). EPA developed the 2006 Guidance to make recommendations to 
states for making submissions to meet the requirements of section 
110(a)(2)(D)(i) for the 1997 8-hour ozone standards and the 1997 
PM2.5 standards. As identified in the 2006 Guidance, the 
``good neighbor'' provisions in section 110(a)(2)(D)(i) require each 
state to submit a SIP that prohibits emissions that adversely affect 
another state in the ways contemplated in the statute. Section 
110(a)(2)(D)(i) contains four distinct requirements (prongs) related to 
the impacts of interstate transport. The SIP must prevent sources in 
the state from emitting pollutants in amounts which will: (1) 
Contribute significantly to nonattainment of the NAAQS in other states; 
(2) interfere with maintenance of the NAAQS in other states; (3) 
interfere with provisions to prevent significant deterioration of air 
quality in other states; and (4) interfere with efforts to protect 
visibility in other states.
    On September 12, 2007 and August 25, 2010 (dated August 16, 2010), 
we received SIP submissions from the Governor of New Mexico intended to 
address the requirements of section 110(a)(2)(D)(i) for both the 1997 
8-hour ozone and 1997 PM2.5 NAAQS. EPA approved a portion of 
the 2007 SIP submittal--the first prong--that pertains to preventing 
sources in one state from emitting pollutants in amounts that will 
contribute significantly to nonattainment of the 1997 ozone and 1997 
PM2.5 NAAQS in any other state (75 FR 68447, November 8, 
2010). In today's action, we are also addressing a portion of that 
submittal--the third prong--that pertains to preventing sources in 
Albuquerque/Bernalillo County from emitting pollutants that will 
interfere with measures required to prevent significant deterioration 
of air quality in other states. In its submission, New Mexico indicated 
that its current PSD NSR SIP is adequate to prevent such interference. 
In a separate rulemaking, EPA is taking action on the requirement 
regarding interference with efforts to protect visibility in other 
states. The remaining prong, which addresses interference with 
maintenance of the NAAQS in other states, will be evaluated in a 
separate rulemaking.
3. Revisions to the Albuquerque/Bernalillo County PSD SIP
    Today's rulemaking includes the review and analysis of two separate 
revisions to the Albuquerque/Bernalillo County SIP for PSD permitting 
submitted to EPA on May 24, 2006 and August 16, 2010, that include 
provisions to implement the 1997 and 2008 8-hour ozone NAAQS and the 
1997 and 2006 PM2.5 NAAQS. We note that the AQCB also 
provided revisions to the NNSR permitting program in the August 16, 
2010 submittal. EPA is severing the August 16, 2010 revisions to the 
NNSR SIP from our proposed action.\20\ The NNSR SIP is a separate 
permit program for nonattainment areas that functions independently 
from the PSD program and is authorized under Part D of the Title I of 
the CAA. As explained previously in section I.C.1 of this proposed 
rule, the Albuquerque infrastructure SIP review does not include 
evaluation of NNSR provisions at this time. EPA will address the NNSR 
SIP revisions in a separate rulemaking.
---------------------------------------------------------------------------

    \20\ These portions are severable. By which, we mean that the 
portions of the SIP revision required by EPA's Implementation of the 
New Source Review (NSR) Program for Particulate Matter Less Than 2.5 
Micrometers rule can be implemented independently of the remaining 
portions of the submittal, without affecting the stringency of the 
submitted rules. In addition, the remaining portions of the 
submittal are not necessary for approval of the provisions 
implementing the PM2.5 NAAQS.

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[[Page 22256]]

a. Revisions To Address the 1997 and 2008 8-Hour Ozone NAAQS
    On May 24, 2006 and August 16, 2010, the Governor submitted 
revisions to the PSD SIP that include, but are not limited to, 
revisions that provide for NOX to be treated as a precursor 
to ozone formation in the preconstruction permitting program for PSD, 
found at Title 20, Chapter 11, Section 61 of the New Mexico 
Administrative Code (20.11.61 NMAC). We are proposing to approve 
portions of two revisions to the PSD SIP that include revisions to 
20.11.61 NMAC as submitted to EPA on May 24, 2006 and August 16, 2010 
respectively, which implement the provisions for NOX as a 
precursor for ozone, consistent with the 1997 8-hour ozone NAAQS as 
published in the November 29, 2005 FRN. EPA finds that these revisions 
are necessary for implementation of the 1997 and 2008 ozone standard. 
As discussed further in our Technical Support Document (TSD), these 
revisions adopted by the AQCB meet the requirements of the CAA and 
EPA's PSD SIP rules and are consistent with EPA's policy and guidance 
regarding the PSD permit program.
b. Revisions To Address the 1997 and 2006 PM2.5 NAAQS
    To implement the PSD permitting component of section 110(a)(2)(C) 
for the 1997 and 2006 PM2.5 standards, states were required 
to submit the necessary SIP revisions to EPA by May 16, 2011 under 
EPA's Implementation of the New Source Review (NSR) Program for 
Particulate Matter Less Than 2.5 Micrometers (73 FR 28321, May 16, 
2008; hereafter referred to as ``2008 PM2.5 NSR rule''). On 
July 14, 2010, the Albuquerque/Bernalillo County AQCB adopted revisions 
to the Albuquerque/Bernalillo County SIP to amend their PSD and NNSR 
programs to implement PM2.5 NAAQS. These revisions became 
effective on August 30, 2010. The Governor submitted these changes to 
EPA as a SIP revision on August 16, 2010. As noted previously, we are 
proposing action on only the PSD revisions at this time. We are 
proposing to approve portions of the revisions to the PSD SIP at 
20.11.61 NMAC submitted on August 16, 2010 that implement the 
provisions for PM2.5 permitting, including the 
identification of PM2.5 precursors and significant emission 
rates, consistent with the requirements as published in the 2008 
PM2.5 NSR rule to adequately implement the 1997 and 2006 
NAAQS. As discussed further in our TSD, these revisions adopted by the 
Albuquerque/Bernalillo County AQCB meet the requirements of the CAA and 
EPA's PSD SIP rules and are consistent with EPA's policy and guidance 
regarding the PSD permit program.
c. Revisions To Address the Greenhouse Gas (GHG) Permitting 
Requirements
    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part are distinct from 
one another, establish the overall framework for today's proposed 
action on the Albuquerque infrastructure SIP. Four of these actions 
include, as they are commonly called, the ``Endangerment Finding'' and 
``Cause or Contribute Finding,'' which EPA issued in a single final 
action,\21\ the ``Johnson Memo Reconsideration,'' \22\ the ``Light-Duty 
Vehicle Rule,'' \23\ and the ``Tailoring Rule.'' \24\ Taken together 
and in conjunction with the CAA, these actions established regulatory 
requirements for GHGs emitted from new motor vehicles and new motor 
vehicle engines; determined that such regulations, when they took 
effect on January 2, 2011, subjected GHGs emitted from stationary 
sources to PSD requirements; and limited the applicability of PSD 
requirements to GHG sources on a phased-in basis. EPA took this last 
action in the Tailoring Rule, which, more specifically, established 
appropriate GHG emission thresholds for determining the applicability 
of PSD requirements to GHG-emitting sources.
---------------------------------------------------------------------------

    \21\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \22\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
    \23\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \24\ Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010).
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    On December 15, 2010, the Governor of New Mexico submitted to EPA a 
SIP revision that modified Albuquerque/Bernalillo County's PSD program 
to establish appropriate emission thresholds for determining which new 
stationary sources and modification projects become subject to 
Albuquerque/Bernalillo County's PSD permitting requirements for their 
GHG emissions. The regulatory revisions that Albuquerque/Bernalillo 
County submitted, on December 15, 2010, incorporate the Tailoring Rule 
thresholds, thereby (i) assuring that, under State law, only sources at 
or above the Tailoring Rule thresholds would be subject to PSD; and 
(ii) avoiding confusion under the federally-approved SIP by clarifying 
that the SIP applies only to sources at or above the Tailoring Rule 
thresholds. EPA determined that the PSD SIP revision met the 
requirements of section 110 and part C of the CAA and EPA regulations 
regarding PSD permitting for GHGs, and EPA approved the PSD SIP 
revision effective January 30, 2012. (See 76 FR 81836).
d. Revisions To Maintain Consistency With the Federal PSD Requirements
    In addition to the revisions submitted on May 24, 2006 and August 
16, 2010 to implement the 1997 and 2008 8-hour ozone NAAQS and the 1997 
and 2006 PM2.5 NAAQS, Albuquerque also adopted and submitted 
several revisions to the general PSD program to maintain consistency 
with the Federal PSD requirements. It is incumbent on a permitting 
authority to routinely review and update the SIP to maintain 
consistency with the Federal requirements and submit these revisions as 
appropriate for review and incorporation into the state's SIP. As 
further explained in the TSD, EPA finds that these revisions are 
consistent with the Federal PSD requirements at 40 CFR 51.166 and 
necessary to implement the Albuquerque PSD SIP.
4. Additional Revisions to the Albuquerque/Bernalillo County SIP
    On November 6, 2009, the Governor submitted a SIP revision that 
included among other things, updating the SIP rule entitled Ambient Air 
Quality Standards. We are taking this opportunity to evaluate and 
propose action on the Ambient Air Quality Standard SIP portion of the 
2009 submission. EPA is not taking action on the other severable 
portions of November 2009 SIP revision submittal at this time.

D. What elements are required under section 110(a)(2)?

    Pursuant to the October 2, 2007 EPA guidance for addressing the SIP 
infrastructure elements required under sections 110(a)(1) and (2) for 
the 1997 ozone and 1997 and 2006 PM2.5 NAAQS, there are 14 
essential components that must be included in the SIP. These are listed 
in Table 1 below.

[[Page 22257]]

          Table 1--Section 110(a)(2) Elements Required in SIPs
------------------------------------------------------------------------
    Clean Air Act citation                 Brief description
------------------------------------------------------------------------
Section 110(a)(2)(A).........  Emission limits and other control
                                measures.
Section 110(a)(2)(B).........  Ambient air quality monitoring/data
                                system.
Section 110(a)(2)(C).........  Program for enforcement of control
                                measures.
Section 110(a)(2)(D).........  Interstate transport.
Section 110(a)(2)(E).........  Adequate resources.
Section 110(a)(2)(F).........  Stationary source monitoring system.
Section 110(a)(2)(G).........  Emergency power.
Section 110(a)(2)(H).........  Future SIP revisions.
Section 110(a)(2)(J) \25\....  Consultation with government officials.
Section 110(a)(2)(J).........  Public notification.
Section 110(a)(2)(J).........  Prevention of significant deterioration
                                (PSD) and visibility protection.
Section 110(a)(2)(K).........  Air quality modeling/submission of such
                                data.
Section 110(a)(2)(L).........  Permitting fees.
Section 110(a)(2)(M).........  Consultation/participation by affected
                                local entities.
------------------------------------------------------------------------

II. What action is EPA proposing?

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

    In today's action, we are proposing to determine and approve that 
the following section 110(a)(2) elements are contained in the current 
Albuquerque/Bernalillo County SIP and provide the infrastructure for 
implementing the 1997 and 2008 ozone and the 1997 and 2006 
PM2.5 standards: Emission limits and other control measures 
(section 110(a)(2)(A)); ambient air quality monitoring/data system 
(section 110(a)(2)(B)); the program for enforcement of control measures 
(section 110(a)(2)(C)); international and interstate pollution 
abatement (section 110(a)(2)(D)(ii)); adequate resources (section 
110(a)(2)(E)); stationary source monitoring system (section 
110(a)(2)(F)); emergency power (section 110(a)(2)(G)); future SIP 
revisions (section 110(a)(2)(H)); consultation with government 
officials (section 110(a)(2)(J)); public notification (section 
110(a)(2)(J)); PSD and visibility protection (section 110(a)(2)(J)); 
air quality modeling/data (section 110(a)(2)(K)); permitting fees 
(section 110(a)(2)(L)); and consultation/participation by affected 
local entities (section 110(a)(2)(M)).
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    \25\ Section 110(a)(2)(I) is omitted from the list. Section 
110(a)(2)(I) pertains to the nonattainment planning requirements of 
part D, Title I of the Act. This section is not governed by the 3-
year submission deadline of section 110(a)(1) because SIPs 
incorporating necessary local nonattainment area controls are not 
due within 3 years after promulgation of a new or revised NAAQS, but 
are due at the time the nonattainment area plan requirements are due 
pursuant to section 172. Thus this action does not cover section 
110(a)(2)(I).
---------------------------------------------------------------------------

    We are also proposing that Albuquerque/Bernalillo County has 
adequately addressed one of the four required prongs of CAA section 
110(a)(2)(D)(i), the interstate transport prong, which requires that 
the SIP prohibit air emissions from sources within a state from 
interfering with measures required to prevent significant deterioration 
of air quality in any other state. We are proposing to determine that 
emissions from sources in Albuquerque/Bernalillo County do not 
interfere with measures to prevent significant deterioration of air 
quality in any other state for the 1997 and 2008 ozone and the 1997 and 
2006 PM2.5 NAAQS (CAA section 110(a)(2)(D)(i)(II)). As noted 
previously, we already have found that emissions from sources within 
Albuquerque/Bernalillo County do not significantly contribute to 
nonattainment of the 1997 ozone and PM2.5 standards in any 
other state. We are not addressing the prongs of section 
110(a)(2)(D)(i) for the 1997 and 2008 8-hour ozone and 1997 and 2006 
PM2.5 NAAQS that pertain to prohibiting air emissions with 
Albuquerque/Bernalillo County from: (1) Interfering with the 
maintenance of the relevant NAAQS in any other state and (2) 
interfering with the measures required to protect visibility in any 
other state. We also are not addressing the remaining prong for the 
2008 ozone and 2006 PM2.5 NAAQS that pertain to prohibiting 
emissions from sources within Albuquerque/Bernalillo County from 
significantly contributing to nonattainment in any other state. We will 
take action on these prongs of section 110(a)(2)(D)(i) for these 
particular NAAQS, which address interstate transport, in separate 
rulemakings.

B. PSD Requirements

    In conjunction with our proposed finding that the Albuquerque/
Bernalillo County SIP meets the section 110(a)(1) and (2) 
infrastructure and interstate transport SIP elements listed above for 
the four NAAQS, we are also proposing to approve portions of two SIP 
revisions submitted by the Governor of New Mexico to EPA on May 24, 
2006 and August 16, 2010 to the Albuquerque PSD Permitting Program at 
20.11.61 NMAC. These revisions identify NOX as a precursor 
to ozone, identify the precursors for PM2.5 and the 
applicable significant emission rates for PM2.5 PSD 
permitting, and make other necessary updates to maintain consistency 
with the federal PSD permitting requirements at 40 CFR 51.166 and 40 
CFR Part 51, Appendix W. EPA is taking no action at this time on 
revisions to the Albuquerque NNSR Permitting program that were 
submitted to EPA on August 16, 2010. We find that the NNSR permitting 
program revisions can be severed from our action today on the PSD 
program revisions since the NNSR revisions are authorized under Title 
I, Part D of the CAA.

C. Additional SIP Revisions

    EPA also is proposing to approve a portion of a revision submitted 
on November 6, 2009 to the New Mexico SIP for Ambient Air Quality 
Standards, codified at 20.11.8 NMAC (Part 8). The substantive revisions 
submitted to Part 8 revise the local ambient air quality standards to 
make them consistent with the current NAAQS.

III. How do the revisions to the Albuquerque/Bernalillo County PSD SIP 
meet EPA requirements?

A. Revisions To Address the 1997 and 2008 8-Hour Ozone NAAQS

    To meet the requirements of 110(a)(2)(C) for the 1997 and 2008 
ozone standard, EPA believes the State must have updated its PSD rules 
to treat NOX as a precursor to ozone (70 FR 71612). On May 
24, 2006 and August 16, 2010, the Governor of New Mexico submitted the 
provisions for NOX as a precursor consistent with EPA's 
November 29, 2005 Phase 2 rule for the 1997 8-hour ozone NAAQS. EPA 
proposes to approve the May 24, 2006 and August

[[Page 22258]]

16, 2010 SIP revisions to Albuquerque/Bernalillo County's PSD 
permitting regulations that implement the provisions for NOX 
as a precursor because EPA finds these rule revisions necessary to 
implement the 1997 and 2008 ozone NAAQS. The Albuquerque PSD program 
satisfies the November 29, 2005 rule as follows. A complete analysis is 
provided in the TSD for this action.
    1. Revising the PSD definition of Major Stationary Source to state 
that a source major for VOC or NOX will be considered major 
for ozone. EPA SIP-approved the revision to the Major Stationary Source 
definition at 20.11.61.7.JJ in our April 26, 2007 final action on the 
Albuquerque NSR Reform package, see 72 FR 20728.
    2. Revising the PSD definition of Major Modification to state that 
any significant emissions increase from any emissions units or net 
emissions increase at a major stationary source that is significant for 
VOC or NOX shall be considered significant for ozone. 
Albuquerque adopted the revised definition of Major Modification at 
20.11.61.7.HH NMAC to include NOX as an ozone precursor on 
April 13, 2006 and submitted to EPA on May 24, 2006.
    3. Adding the emission rate for NOX, as a precursor to 
ozone, as 40 tpy, in the PSD definition of Significant. The August 16, 
2010 submittal revises the definition of Significant at 20.11.61.7.YY 
NMAC and Table 2 at 20.11.61.27 NMAC to identify NOX as an 
ozone precursor.
    4. Identifying NOX as a precursor for ozone in the 
definition of Regulated NSR Pollutant. As currently SIP-approved at 
20.11.61.7.VV(1), the definition of Regulated NSR Pollutant identifies 
NOX as an ozone precursor. See EPA's April 26, 2007 approval 
of the Albuquerque NSR Reform package at 72 FR 20728. The August 16, 
2010, revisions to the Albuquerque PSD Program revise the definition of 
Regulated NSR Pollutant to address PM2.5 requirements (as 
discussed below) but continue to identify NOX as an ozone 
precursor.
    5. Under the PSD requirements, allowing for an exemption with 
respect to ambient air quality monitoring data for a source with a net 
emissions increase less than 100 tpy of NOX. Albuquerque 
adopted and submitted revisions to 20.11.61.28 NMAC--Table 3 
Significant Monitoring Concentrations on May 24, 2006 and August 16, 
2010 to identify NOX as an ozone precursor and allow for the 
aforementioned exemption from ambient air quality monitoring.

B. Revisions To Address the 2008 PM2.5 NSR Rule

    To meet the requirements of 110(a)(2)(C) for the 1997 and 2006 
PM2.5 standard, EPA believes that the State must have 
updated its PSD rules to identify the PM2.5 precursors and 
significant emission rates as outlined in our May 16, 2008 rulemaking. 
The Governor of New Mexico submitted a SIP revision on August 16, 2010 
to address the requirements of the 1997 and 2006 PM2.5 
NAAQS. EPA proposes to approve the August 16, 2010 SIP revision to 
Albuquerque/Bernalillo County's PSD permitting regulations that 
implement the provisions for PM2.5 permitting because EPA 
finds these rule revisions adequate and necessary to implement the 1997 
and 2006 PM2.5 NAAQS. The Albuquerque PSD program satisfies 
the May 16, 2008 rulemaking as follows. A complete analysis is provided 
in the TSD for this action.
    1. Revising the PSD definition of Significant to identify the 
significant emission rates for PM2.5 precursors. Revisions 
to the Albuquerque PSD SIP at 20.11.61.7.YY NMAC and 20.11.61.27 Table 
2 NMAC were submitted on August 16, 2010, that identify significant 
emission rates for the PM2.5 precursors (10 TPY of direct 
PM2.5, 40 TPY of SO2, 40 TPY of NOX 
unless demonstrated not to be a PM2.5 precursor).
    2. Revising the PSD definition of Regulated NSR Pollutant to 
identify the PM2.5 precursors. Revisions to the Albuquerque 
PSD SIP at 20.11.61.7.VV NMAC submitted on August 16, 2010, revise the 
definition of Regulated NSR Pollutant to identify SO2 is a 
PM2.5 precursor in all attainment and unclassifiable areas, 
NOX is presumed to be a PM2.5 precursor in all 
attainment and unclassifiable areas unless demonstrated not to be, and 
VOC is presumed not to be a PM2.5 precursor in any 
attainment or unclassifiable area unless demonstrated otherwise.
    3. Reserving a section in the PSD definition of Regulated NSR 
Pollutant. The August 16, 2010 revisions to the Albuquerque PSD SIP 
reserve a section in the definition of Regulated NSR Pollutant at 
20.11.61.7.VV(5) NMAC.
    4. Revising the PSD definition of Regulated NSR Pollutant to 
require that PM, PM2.5 and PM10 emissions shall 
include gaseous emissions from a source or activity which condense to 
form particulate matter at ambient temperatures. Revisions to the 
Albuquerque PSD SIP at 20.11.61.7.VV(6) NMAC submitted on August 16, 
2010, revise the definition of Regulated NSR Pollutant to include 
condensables.
    5. Revising the PSD requirements for monitoring by providing an 
exemption for sources if the pollutant of interest is less than the 
significant monitoring concentration. The August 16, 2010 revisions at 
20.11.61.18(H) NMAC satisfy this requirement.

C. Revisions To Address GHG Permitting Requirements

    Albuquerque adopted and submitted revisions to the PSD program 
consistent with EPA's GHG Tailoring Rule requirements on January 10, 
2011. EPA evaluated and SIP-approved these PSD provisions in a separate 
rulemaking on December 29, 2011, see 76 FR 81836. Our approval action 
found that Albuquerque has the necessary rules and resources in place 
to apply the PSD permit program requirements to GHG-emitting sources.

D. Revisions To Maintain Consistency With Federal PSD Requirements

    The May 24, 2006 and August 16, 2010 revisions to the Albuquerque 
PSD program also included several substantive and non-substantive 
revisions necessary to maintain consistency with the Federal PSD 
requirements. The TSD for this action includes a thorough review of 
each of the revisions, including non-substantive revisions to update 
internal cross-references and reformat SIP-approved provisions. The TSD 
also includes an analysis of each of the substantive revisions, which 
include revising:
     Multiple revisions to PSD definitions at 20.11.61.7 NMAC 
to maintain consistency with PSD program requirements at 40 CFR 51.166. 
Definitions substantively revised include: ``Baseline area'', 
``Building, structure, facility or installation'', ``Federally 
Enforceable'', ``Regulated NSR Pollutant'', ``Significant'', and 
``VOC'';
     20.11.61.11 NMAC to include provisions for ``hybrid tests 
for projects that involve multiple types of emission units'' consistent 
with 40 CFR 51.166(a)(7)(iv)(f);
     20.11.61.12 NMAC to include provision for ``reasonable 
possibility'' consistent with 40 CFR 51.166(r)(6)(vi);
     20.11.61.21 NMAC to update the public notification 
provisions to require that the proposed control technology and 
alternatives be included in the notice, pursuant to 40 CFR 51.166(q);
     20.11.61.23 to provide more clarity to the listed sources 
for exclusions from increment consumption pursuant to 40 CFR 51.166(f);

[[Page 22259]]

     20.11.61.26 Table 1 NMAC to exclude ethanol production 
facilities that produce ethanol from natural fermentation from the 
listed PSD major source categories pursuant to 40 CFR 
51.166(b)(1)(i)(a); and
     20.11.61.27 Table 2 NMAC to include significant emission 
rates for municipal solid waste landfills pursuant to 40 CFR 
51.166(b)(23)(i).

IV. How has Albuquerque/Bernalillo County addressed the elements of 
section 110(a)(2)?

    The Albuquerque/Bernalillo County submittals address the elements 
of Section 110(a)(2) as described below. We provide a more detailed 
review and analysis of the Albuquerque/Bernalillo County infrastructure 
SIP elements in the TSD, located in the docket for this proposed 
rulemaking.
    Enforceable emission limits and other control measures, pursuant to 
section 110(a)(2)(A): Section 110(a)(2)(A) requires that all measures 
and other elements in the SIP be enforceable. This provision does not 
require the submittal of regulations or emission limits developed 
specifically for attaining the 1997 and 2008 8-hour ozone and 1997 and 
2006 PM2.5 NAAQS. Those regulations are due later as part of 
attainment demonstrations. Additionally, as explained earlier (see 
footnote 2), EPA does not consider SIP requirements triggered by the 
nonattainment area mandates in part D of Title I of the CAA to be 
governed by the submission deadline of section 110(a)(1).
    Enacted in 1967, the New Mexico Air Quality Control Act (AQCA) 
provided for the establishment of the Albuquerque-Bernalillo County 
AQCB as a joint local authority, acting on behalf of both the County of 
Bernalillo and the City of Albuquerque. Within the exterior boundary of 
Bernalillo County, the AQCB is authorized to adopt, promulgate, 
publish, amend and repeal regulations consistent with the New Mexico 
Air Quality Control Act, and to maintain national ambient air quality 
standards and prevent or abate air pollution, including regulations 
prescribing air standards, within Bernalillo County. Through the City 
of Albuquerque's Department of Environmental Health, the Albuquerque 
Air Quality Division (AQD) serves as the administrative agency for the 
AQCB. The AQD is authorized to administer and enforce the provisions of 
the New Mexico Air Quality Control Act within the boundary of 
Bernalillo County. The AQCB has promulgated rules to limit and control 
emissions of, among other things, PM, sulfur compounds (including 
SO2), nitrogen compounds (including NOX), and 
VOCs.\26\ These rules include emission limits, control measures, 
permits, and compliance schedules and are found in 20.11 NMAC (e.g., 
20.11.5 Visible Air Contaminants, 20.11.20 Fugitive Dust Control, 
20.11.21 Open Burning, 20.11.22 Wood Burning, 20.11.65 Volatile Organic 
Compounds, 20.11.66 Process Equipment, 20.11.67 Equipment, Emissions, 
Limitations, 20.11.67.14 Coal Burning Equipment--Nitrogen Dioxide, 
20.11.67.15 Coal Burning Equipment--Sulfur Dioxide, 20.11.67.17 Oil 
Burning Equipment--Nitrogen Dioxide, 20.11.67.19 Oil Burning 
Equipment--Sulfur Dioxide, 20.11.68 Incinerators and Crematories, and 
20.11.60 NNSR NMAC and 20.11.61 PSD NMAC).
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    \26\ NOX and VOCs are precursors to ozone. PM can be 
emitted directly and secondarily formed; the latter is the result of 
NOX and SO2 precursors combining with ammonia 
to form ammonium nitrate and ammonium sulfate.
---------------------------------------------------------------------------

    In this action, EPA is not proposing to approve or disapprove any 
existing state provisions with regard to excess emissions during 
startup, shutdown, or malfunction (SSM) of operations at a facility. 
However, EPA previously approved provisions with regard to excess 
emissions as part of the Albuquerque/Bernalillo County SIP (20.11.49 
NMAC) on February 4, 2010. See 75 FR 5698. EPA believes that a number 
of states may have SSM SIP provisions which are contrary to the Act and 
inconsistent with existing EPA guidance,\27\ and the Agency plans to 
address such state regulations in the future. In the meantime, EPA 
encourages any state having a deficient SSM provision to take steps to 
correct it as soon as possible. Similarly, in this proposed action EPA 
does not include a review of, and also does not propose to take any 
action to approve or disapprove, any existing SIP rules with regard to 
director's discretion or variance provisions. EPA believes that a 
number of states have such provisions that are contrary to the Act and 
not consistent with existing EPA guidance (52 FR 45044, November 24, 
1987) \28\ and the Agency plans to take action in the future to address 
such state regulations. In the meantime, EPA encourages any state 
having a director's discretion or variance provision in its SIP that is 
contrary to the Act and inconsistent with EPA guidance to take steps to 
correct the deficiency as soon as possible.
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    \27\ ``State Implementation Plans (SIPs): Policy Regarding 
Excess Emissions During Malfunctions, Startup, and Shutdown,'' 
Memorandum from Steven A. Herman, Assistant Administrator for 
Enforcement and Compliance Assurance, and Robert Perciasepe, 
Assistant Administrator for Air and Radiation, dated September 20, 
1999.
    \28\ The section addressing exemptions and variances is found on 
p. 45109 of the 1987 rulemaking.
---------------------------------------------------------------------------

    A detailed list of the applicable rules at 20.11 NMAC is provided 
in the TSD. The Albuquerque/Bernalillo County SIP contains enforceable 
emission limits and other control measures, which are in the federally 
enforceable SIP. EPA is proposing to determine that the Albuquerque/
Bernalillo County SIP meets the requirements of section 110(a)(2)(A) of 
the Act with respect to the 1997 and 2008 ozone and the 1997 and 2006 
PM2.5 NAAQS.
    Ambient air quality monitoring/data system, pursuant to section 
110(a)(2)(B): 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 AQD operates and maintains a 
network of air quality monitors throughout Bernalillo County; data are 
collected, results are quality assured and the data are submitted to 
EPA's Air Quality System \29\ on a quarterly basis. The air quality 
surveillance network undergoes annual review by EPA. EPA evaluated 
Albuquerque's 2011 Annual Monitoring Network Plan (AAMNP) and approved 
it on January 13, 2012.\30\ The AQD's AAMNP addresses each of the 
criteria pollutants, including 8-hour ozone and PM2.5 and 
thus allows the AQD to measure the Albuquerque/Bernalillo County air 
quality for compliance with the 1997 and 2008 8-hour ozone and the 1997 
and 2006 PM2.5 standards.
---------------------------------------------------------------------------

    \29\ The Air Quality System (AQS) is EPA's repository of ambient 
air quality data. AQS stores data from over 10,000 monitors, 5,000 
of which are currently active. State, Local and Tribal agencies 
collect the data and submit it to AQS on a periodic basis.
    \30\ A copy of EPA's evaluation and approval is in the docket 
for this rulemaking.
---------------------------------------------------------------------------

    The AQD's air quality surveillance network consists of nine 
stations that measure ambient concentrations of the criteria pollutants 
for which standards have been established in 40 CFR Part 50 (46 FR 
2655), including ozone and PM2.5. The AQD works closely with 
EPA Region 6 and the New Mexico Air Quality Bureau to ensure that its 
monitoring network meets the requirements for monitoring networks at 40 
CFR part 58 Appendix D. The AQD's Web site (www.cabq.gov/airquality) 
and EPA's AirNow Web site (www.airnow.gov) contain up-to-date 
information about air quality monitoring, including a description of 
the network, information about

[[Page 22260]]

monitoring of ozone and PM2.5, and the daily Air Quality 
Index (AQI).
    In summary, Albuquerque/Bernalillo County meets the requirements to 
establish, operate, and maintain an ambient air monitoring network, 
collect and analyze the monitoring data, and make the data available to 
EPA upon request. EPA is proposing to find that the current 
Albuquerque/Bernalillo County SIP meets the requirements of section 
110(a)(2)(B) of the Act for the 1997 and 2008 ozone and 1997 and 2006 
PM2.5 NAAQS.
    Program for enforcement of control measures and regulation of the 
modification and construction of stationary sources, including a permit 
program, pursuant to section 110(a)(2)(C): The New Mexico Air Quality 
Control Act provides the AQCB with enforcement authority and 
Albuquerque/Bernalillo County has an EPA-approved air permitting 
program SIP for both major and minor sources. The administrative 
proceedings for enforcement actions, including administrative 
compliance orders and determination of penalty, are provided in 
20.11.90 NMAC (75 FR 5698, February 4, 2010). The rules at Title 20, 
Chapter 11 of NMAC address allowable emission rates, compliance, 
control technology requirements, control schedules, monitoring and 
testing requirements, and reporting and recordkeeping requirements. 
These clarify the boundaries beyond which regulated entities in 
Albuquerque/Bernalillo County can expect enforcement action.
    Bernalillo County Ordinance 94-5, also known as the Joint Air 
Quality Control Board Ordinance,\31\ provides the AQD with authority to 
enforce permitting provisions, and provides for assessment of 
administrative enforcement actions and administrative penalties for 
violations of those permit terms and conditions, and injunctive relief 
(Bernalillo County Ordinance 94-5, Sections 9-18). The Albuquerque/
Bernalillo County AQCB and AQD have the necessary legal authority and 
jurisdiction to adopt and implement requirements for measuring and 
monitoring air emissions and to require owners and operators of sources 
to make and maintain records of the emissions. Therefore, the 
Albuquerque/Bernalillo County AQCB and AQD have the requisite legal 
authority to implement and enforce the minor and major permit revision 
procedures in accordance with the requirements of the CAA.
---------------------------------------------------------------------------

    \31\ EPA approved Bernalillo County Ordinance 88-45 into the 
Albuquerque/Bernalillo County SIP in a June 1, 1999 rulemaking (64 
FR 29235). Albuquerque/Bernalillo County has since amended the 
ordinance and re-codified it as Bernalillo County Ordinance 94-5. 
EPA will act on this amended ordinance in a future rulemaking. For 
purposes of the I-SIP discussion, we will cite to the current 
ordinance. The Joint Air Quality Control Board Ordinance 94-5 is 
also cited as legal authority in 20.11.1.3 NMAC, which is SIP-
approved.
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    To meet the requirement for having a program for the regulation of 
the modification and construction of any stationary source within the 
areas covered by the plan as necessary to assure that NAAQS are 
achieved, including a permit program as required by part C and part D 
of the CAA, generally, the State is required to have SIP-approved PSD, 
Nonattainment, and Minor NSR permitting programs adequate to implement 
the 1997 and 2008 8-hour ozone and the 1997 and 2006 PM2.5 
NAAQS. We are not evaluating nonattainment-related provisions, such as 
the nonattainment NSR program required by part D in 110(a)(2)(C) and 
measures for attainment required by section 110(a)(2)(I), as part of 
the infrastructure SIPs for these four NAAQS because these submittals 
are required beyond the date (three years from NAAQS promulgation) that 
section 110 infrastructure submittals are required.
    PSD programs apply in areas that are meeting the NAAQS, referred to 
as attainment areas, or in areas that are unclassifiable, referred to 
as unclassifiable/attainment areas. PSD applies to new major sources 
and major modifications at existing sources. The Albuquerque/Bernalillo 
County PSD SIP program, found at 20.11.61 NMAC, was initially approved 
into the SIP on December 21, 1993, effective January 20, 1994 at 58 FR 
67330. Subsequent revisions to the Albuquerque/Bernalillo County PSD 
SIP program were adopted by the AQCB on December 14, 2005, submitted 
May 24, 2006, and approved into the SIP on April 26, 2007 at 72 FR 
20728. The AQD has the authority to issue PSD permits and enforce them 
under the approved PSD SIP, while the AQCB has appellate authority over 
the permitting.\32\
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    \32\ Under the Bernalillo County Joint Air Quality Control Board 
Ordinance, the AQD ``shall administer and enforce the provisions of 
the Air Quality Control Act,'' while the AQCB ``shall adopt, 
promulgate, publish, amend and repeal regulations.'' Moreover, Any 
person who participated in a permitting action before the [AQD] and 
who is adversely affected by such permitting action may file a 
petition for hearing before the board.'' See Ordinance 88-45, 
Sections 7(A)-(H).
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    Additionally, as explained in sections II.B and III of this notice, 
EPA is proposing to approve revisions to the PSD program that were 
adopted by the AQCB on April 13, 2006 and July 14, 2010, submitted May 
24, 2006 and August 16, 2010, respectively.
    PSD Permitting for Sources that are Major for Ozone Precursors: To 
implement section 110(a)(2)(C) for the 1997 and 2008 ozone NAAQS, a 
state must have updated its PSD rules to address NOX as an 
ozone precursor (70 FR 71612). On May 24, 2006 and August 16, 2010, the 
Governor submitted the provisions for NOX as a precursor, 
consistent with EPA's November 29, 2005 Phase 2 rule for the 1997 ozone 
NAAQS (70 FR 71612) as part of its revisions to 20.11.61 NMAC. Based on 
our review and analysis of the May 24, 2006 and August 16, 2010 
submittals, EPA is proposing to approve the following revisions to the 
Albuquerque/Bernalillo County PSD SIP as necessary to implement the 
provision for NOX as a precursor to ozone consistent with 70 
FR 71612: revisions to 20.11.61.7.HH Major Modification adopted April 
13, 2006 and submitted May 24, 2006, revisions to 20.11.61.7.YY 
Significant, and 20.11.61.27 Table 2--Significant Emission Rates 
adopted July 14, 2010 and submitted August 16, 2010; revisions to 
20.11.61.7.VV Regulated New Source Review Pollutant adopted July 12, 
2010 and submitted August 16, 2010; and revisions to 20.11.61.28 Table 
3--Significant Monitoring Concentrations adopted on April 13, 2006 and 
July 14, 2010 and submitted on May 24, 2006 and August 16, 2010, 
respectively. Please see sections II.B and III of this notice and the 
TSD accompanying this rulemaking for additional information about how 
the May 24, 2006 and August 16, 2010 PSD SIP revisions satisfy section 
110(a)(2)(C) for the 1997 and 2008 8-hour ozone NAAQS.
    PM2.5 PSD Permitting: To implement the PSD permitting component of 
section 110(a)(2)(C) for the 1997 and 2006 PM2.5 NAAQS, 
states were required to submit the necessary SIP revisions to EPA by 
May 16, 2011 under EPA's 2008 PM2.5 NSR rule. On July 14, 
2010 the AQCB adopted these revisions effective August 30, 2010. On 
August 16, 2010, the Governor submitted necessary revisions to the 
Albuquerque/Bernalillo County SIP to amend the PSD program to meet the 
1997 and 2006 PM2.5 NAAQS implementation requirements. EPA 
is proposing to approve the following revisions to the Albuquerque/
Bernalillo County PSD SIP adopted on July 14, 2010 and submitted on 
August 16, 2010 in today's action: revisions to 20.11.61.7.YY 
Significant and 20.11.61.27 Table 2--Significant Emission Rates; 
revisions to 20.11.61.7.VV Regulated NSR Pollutant; and revisions to 
20.11.61.18(H)--

[[Page 22261]]

Monitoring Requirements Air Quality Analysis. Please see sections II.B 
and III of this notice and the accompanying TSD for more information on 
our approval of revisions to the PSD Program for PM2.5 
permitting.
    GHG PSD Permitting: The Tailoring Rule established thresholds that 
phase in the applicability of PSD requirements to GHG sources, starting 
with the largest GHG emitters, and were designed to relieve the 
overwhelming administrative burdens and costs associated with the 
dramatic increase in permitting burden that would have resulted from 
applying PSD requirements to GHG emission increases at or above only 
the mass-based statutory thresholds of 100/250 tons per year generally 
applicable to all PSD-regulated pollutants starting on January 2, 2011. 
However, EPA recognized that even after it finalized the Tailoring 
Rule, many SIPs with approved PSD programs would, until they were 
revised, continue to apply PSD at the statutory thresholds, even though 
the States would not have sufficient resources to implement the PSD 
program at those levels. EPA consequently implemented its ``PSD SIP 
Narrowing Rule'' and narrowed its approval of those provisions of 
previously approved SIPs that apply PSD to GHG emissions increases from 
sources emitting GHGs below the Tailoring Rule thresholds (75 FR 82536, 
December 30, 2010). Through the PSD SIP Narrowing Rule, EPA withdrew 
its previous approvals of those programs to the extent the SIPs apply 
PSD to increases in GHG emissions from GHG-emitting sources below the 
Tailoring Rule thresholds. The portions of the PSD programs regulating 
GHGs from GHG-emitting sources with emission increases at or above the 
Tailoring Rule thresholds remained approved. The effect of EPA 
narrowing its approval in this manner is that the provisions of 
previously approved SIPs that apply PSD to GHG emissions increases from 
sources emitting GHGs below the Tailoring Rule thresholds have the 
status of having been submitted by the State but not yet acted upon by 
EPA (75 FR 82536).
    On December 15, 2010, the Governor submitted a revision to the SIP 
to establish appropriate emission thresholds for determining which new 
stationary sources and modification projects become subject to PSD 
permitting requirements for GHG emissions. The PSD SIP revision to 
address GHGs was approved by the EPA on December 29, 2011 (76 FR 
81836). Thus, the GHG emission thresholds for PSD applicability set 
forth in EPA's Tailoring Rule, ensuring that smaller GHG sources 
emitting less than these thresholds are not subject to section 110 of 
the CAA were approved.
    Minor Source Permitting: Section 110(a)(2)(C) creates a ``general 
duty on States to include a program in their SIP that regulates the 
modification and construction of any stationary source as necessary to 
assure that the NAAQS are achieved'' (70 FR 71612, 71677). This duty is 
often referred to as ``minor NSR.'' EPA provides states with a ``broad 
degree of discretion'' in implementing their minor NSR programs (71 FR 
48696, 48700, August 21, 2006). The ``considerably less detailed'' 
regulations for minor NSR are provided in 40 CFR 51.160 through 51.164. 
We have determined that the Albuquerque/Bernalillo County minor NSR 
regulations at 20.11.41 NMAC approved as part of the SIP pursuant to 
section 110(a)(2)(C) regulate emissions of ozone and its precursors and 
PM. Albuquerque/Bernalillo County and EPA have relied upon the 
Albuquerque/Bernalillo County SIP-approved existing minor NSR program 
to ensure that new and modified sources not captured by the major NNSR 
or PSD permitting programs do not interfere with attainment and 
maintenance of the NAAQS.
    It is important to stress that EPA is not proposing to approve or 
disapprove the Albuquerque/Bernalillo County existing minor NSR SIP 
program itself to the extent that it may be inconsistent with EPA's 
regulations governing this program. EPA believes that a number of 
states may have minor NSR provisions that are contrary to the existing 
EPA regulations for this program. EPA intends to work with states to 
reconcile state minor NSR SIP programs with EPA's regulatory provisions 
for the program. The statutory requirements of section 110(a)(2)(C) 
provide for considerable flexibility in designing minor NSR programs, 
and EPA believes it may be time to revisit the regulatory requirements 
for this program in order to give the states an appropriate level of 
flexibility to design programs that meet their particular air quality 
concerns, while assuring reasonable consistency across the country in 
protecting the NAAQS with respect to new and modified minor sources.
    Based on the above, we are proposing to find that the current 
Albuquerque/Bernalillo County PSD SIP meets section 110(a)(2)(C) with 
respect to the 1997 and 2008 8-hour ozone and the 1997 and 2006 
PM2.5 NAAQS.
    Interstate transport, pursuant to section 110(a)(2)(D): Section 
110(a)(2)(D) has two components, 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). 
Section 110(a)(2)(D)(i) requires SIPs to include provisions prohibiting 
any source or other type of emissions activity in one state from 
contributing significantly to nonattainment, interfering with 
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 insuring compliance with sections 
115 and 126 of the Act, relating to interstate and international 
pollution abatement.
    PSD and interstate transport, pursuant to section 110(a)(2)(D)(i): 
One of the four prongs in section 110(a)(2)(D)(i) requires a SIP to 
contain adequate provisions prohibiting emissions that interfere with 
any other state's required measures to prevent significant 
deterioration of its air quality. This is the only element of 
110(a)(2)(D)(i) on which EPA is proposing action in this rulemaking. 
EPA's 2006 Guidance made recommendations for SIP submissions to meet 
this requirement with respect to both the 1997 8-hour ozone NAAQS and 
the 1997 PM2.5 NAAQS.
    The 2006 Guidance states that the PSD permitting program is the 
primary measure that each state must include to prevent interference 
with any other state's required measures to prevent significant 
deterioration of its air quality in accordance with section 
110(a)(2)(D)(i)(II).
    As discussed previously in this rulemaking with regards to section 
110(a)(2)(C) and in the TSD, the Albuquerque/Bernalillo County PSD 
program is in the SIP and meets the basic requirements for implementing 
the ozone and PM2.5 NAAQS. We are proposing to approve the 
portion of the submission from August 16, 2010 that has adequately 
addressed section 110(a)(2)(D)(i)(II) of the CAA, for the element that 
requires that the SIP prohibit air pollutant emissions from sources 
within a state from interfering with measures required to prevent 
significant deterioration of air quality in any other state.
    Consistent with EPA's November 29, 2005 Phase 2 rule for the 1997 
8-hour ozone NAAQS, the State submitted SIP revisions to modify its PSD 
provisions to address NOX as an ozone precursor. Also 
consistent with EPA's 2008 PM2.5 NSR rule, the State 
submitted SIP revisions to modify its PSD provisions to adequately 
implement the 1997 and 2006 PM2.5 NAAQS. EPA is approving 
these revisions and they have been discussed previously in this notice. 
EPA believes that the PSD revision for the

[[Page 22262]]

1997 8-hour ozone NAAQS that makes NOX a precursor for ozone 
for PSD purposes, and the PSD revisions to implement the EPA's 2008 
PM2.5 NSR SIP rule, taken together with the PSD SIP and the 
interstate transport SIP, satisfy the requirements of the third element 
of section 110(a)(2)(D)(i) for the 1997 and 2008 8-hour ozone and 1997 
and 2006 PM2.5 NAAQS, i.e., there will be no interference 
with any other state's required PSD measures.
    We are proposing to determine that emissions from sources in 
Albuquerque/Bernalillo County do not interfere with measures required 
to prevent significant deterioration of air quality for the 1997 and 
2008 8-hour ozone and 1997 and 2006 PM2.5 NAAQS in any other 
state. This rulemaking action is being taken under section 110(a) of 
the CAA.
    In a prior action, EPA approved Albuquerque/Bernalillo County SIP 
revisions that addressed the requirements of section 
(110)(a)(2)(D)(i)(I) of the CAA that emissions from sources in 
Albuquerque/Bernalillo County do not significantly contribute to 
nonattainment of the 1997 8-hour ozone and 1997 PM2.5 NAAQS 
in any other state (75 FR 68447). The final rule was effective December 
8, 2010. The SIP revision demonstrated that air pollutant emissions 
from sources within Albuquerque/Bernalillo County do not significantly 
contribute to nonattainment of the relevant NAAQS in any other state 
for those pollutants. The remaining three elements of section 
110(a)(2)(D)(i): (1) Do not significantly contribute to nonattainment 
of the relevant NAAQS in any other state for the 2008 ozone NAAQS and 
the 2006 PM2.5 NAAQS; (2) interference with the maintenance 
of the NAAQS in any other state for all four NAAQS; (3) interference 
with measures required to protect visibility in any other state will be 
evaluated and addressed in future rulemakings.
    Interstate and international pollution abatement, pursuant to 
section 110(a)(2)(D)(ii): Section 110(a)(2)(D)(ii) of the Act requires 
compliance with sections 115 and 126 of the Act, relating to interstate 
and international pollution abatement. Section 115(a) addresses 
endangerment of public health or welfare in foreign countries from 
pollution emitted in the United States. Pursuant to section 115, the 
Administrator has neither received nor issued a formal notification 
that emissions from Albuquerque/Bernalillo County are endangering 
public health or welfare in a foreign country. Section 126(a) of the 
Act requires new or modified sources to notify neighboring states of 
potential impacts from such sources. Albuquerque/Bernalillo County also 
has no pending obligations under section 126 of the Act.
    EPA is proposing to find that the Albuquerque/Bernalillo County SIP 
meets the requirements of section 110(a)(2)(D)(ii) of the Act for the 
1997 and 2008 ozone and 1997 and 2006 PM2.5 NAAQS.
    Adequate personnel, funding, and authority, pursuant to section 
110(a)(2)(E): As stated previously, the Albuquerque/Bernalillo County 
AQCB is the federally delegated air quality authority for Albuquerque 
and Bernalillo County, New Mexico. The New Mexico Air Quality Control 
Act (AQCA, section 74-2-4) authorizes Albuquerque/Bernalillo County to 
locally administer and implement the State Air Quality Control Act by 
providing for a local air quality control program. Thus, state law 
views Albuquerque/Bernalillo County and the remainder of the State of 
New Mexico as distinct air quality control entities. The AQCA also 
provides for the establishment of the Albuquerque/Bernalillo County 
AQCB as a joint local authority, acting on behalf of both the County of 
Bernalillo and the City of Albuquerque. Within the boundary of 
Bernalillo County, the AQCB is authorized to adopt, promulgate, 
publish, amend and repeal regulations consistent with the New Mexico 
Air Quality Control Act, and to maintain national ambient air quality 
standards and prevent or abate air pollution, including regulations 
prescribing air standards, within Bernalillo County (with the exception 
of tribal lands).
    Through the City of Albuquerque's Department of Environmental 
Health, the Albuquerque Air Quality Division (AQD) serves as the 
administrative agency for the AQCB. The AQD is authorized to administer 
and enforce the provisions of the New Mexico Air Quality Control Act 
within the boundary of Bernalillo County.
    The City of Albuquerque and Bernalillo County Ordinances approved 
into the SIP on June 1, 1999 provide assurances that Albuquerque/
Bernalillo County has the adequate personnel and funding to carry out 
their SIP.\33\ The August 16, 2010 Albuquerque/Bernalillo County SIP 
submittal from the Governor includes a discussion of funding and 
personnel resources for carrying out the programs of the SIP for 
demonstrating attainment of 1997 and 2006 PM2.5 and 1997 and 
2008 ozone NAAQS. The submittals state that budgets are approved 
annually by the Albuquerque City Council, and that the annual budgeting 
process provides a periodic update that enables the AQD to adjust 
funding and personnel needs to carry out air programs to meet the CAA. 
The Bernalillo County Joint Air Quality Ordinance authorizes the AQCB 
to adopt rules, pursuant to AQCA section 74-2-7, for establishing fees, 
to review and act on permit applications; amend and review permits; 
conduct inspections of facilities; and enforce the rules and orders of 
permits. Fees collected pursuant to this ordinance are then deposited 
into a fund created by section 74-2-16 of the AQCA, which must be used 
by the municipality or county only for the purpose of paying the 
reasonable costs of, among other things, reviewing and acting on permit 
applications, implementing and enforcing rules of the permit, air 
monitoring, air modeling, preparing guidance, and preparing emission 
inventories.
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    \33\ See 64 FR 29235.
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    Additionally, there are federal sources of funding for the 
implementation of the 1997 and 2008 8-hour ozone and 1997 and 2006 
PM2.5 NAAQS through, for example, the CAA sections 103 and 
105 grant funds. The AQD receives federal funds on an annual basis, 
under sections 103 and 105 of the Act, to support its air quality 
programs. The AQD has authority to collect fees for Title V and non-
Title V permit applications, revisions, renewals and inspections 
pursuant to New Mexico AQCA, New Mexico Statutes Annotated (NMSA) 1978 
Sections 74-2-4, 74-2-5 and 74-2-7, the Bernalillo County Ordinance 94-
5 Sections 3, 4 and 7, and the revised ordinances of Albuquerque 1994, 
Section 9-5-1-3, Section 9-5-1-4 and Section 9-5-1-7. For example, New 
Mexico AQCA Section 74-2-7(B)(7) requires by regulation a schedule of 
emission fees consistent with the provisions of Section 502(b)(3) of 
the 1990 Amendments to the Federal Clean Air Act. The SIP-approved 
regulation that addresses permit fees, AQCB Air Quality Control 
Regulation Section 21--Permit Fees (April 10, 1980 at 45 FR 24460) was 
repealed and replaced by the Albuquerque/Bernalillo County AQCB rule 
effective July 1, 2001 and recodified as 20.11.2 NMAC. It was submitted 
as a SIP revision on May 24, 2011. We have proposed to approve the 
revisions that repeal and replace the existing SIP rule but have not 
finalized our action (November 4, 2011, 76 FR 68385). A detailed list 
of the applicable sections of the NMAC is provided in the TSD. More 
specific information on permitting fees is provided in the discussion 
for 110(a)(2)(L) below and in the TSD.

[[Page 22263]]

    Section 110(a)(2)(E)(ii) requires that states comply with section 
128. Section 128 requires: (1) That the majority of members of the 
state body which approves permits or enforcement orders do not derive 
any significant portion of their income from entities subject to 
permitting or enforcement orders under the CAA; and (2) any potential 
conflicts of interest by such body be adequately disclosed. On June 
1,1999, the EPA approved into the SIP the AQCB Ordinances and 
provisions of the ACQA that pertain to financial disclosures, conflicts 
of interest, code of conduct and ethical conduct for the Executive 
Director and classified employees of the agency (64 FR 29235). The EPA 
action, effective August 2, 1999, approved the SIP revisions for Board 
composition and conflict of interest disclosure requirements submitted 
by the Governor for Albuquerque/Bernalillo County. These include public 
interest requirements and safeguards against conflict of interest and 
are codified in the City of Albuquerque Ordinances, 2-6-1-3(A)(4), 9-5-
1-3(B)(4), 9-5-1-3(E) and County Ordinance 94-5, Section (3)(E) Joint 
Air Quality Control Board Ordinance. For example, County Ordinance 94-5 
Section (3)(E) states:

    Any member of the Board who has a conflict of interest regarding 
a matter before the Board shall disqualify himself or herself from 
the discussion and shall abstain from the vote on such matter. A 
conflict of interest means any interest which may yield, directly or 
indirectly any monetary or other material benefit to the Board 
member or the member's spouse or minor child.\34\
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    \34\ As explained in greater detail in footnote 31, Bernalillo 
County Ordinance 94-5 amended Ordinance 88-45, which is in the 
Albuquerque/Bernalillo County SIP. EPA will act on Bernalillo County 
Ordinance 94-5 in a future rulemaking.

    EPA is proposing to find that the Albuquerque/Bernalillo County SIP 
meets the requirements of section 110(a)(2)(E) of the Act for the 1997 
and 2008 8-hour ozone and the 1997 and 2006 PM2.5 NAAQS.
    Stationary source monitoring system, pursuant to section 
110(a)(2)(F): Rules that require stationary sources to monitor for 
compliance, provide recordkeeping and reporting, and provide for 
enforcement of ozone, PM2.5, and precursors to these 
pollutants (SO2, ammonia, VOCs and NOX), 
consistent with the requirements of 40 CFR part 51, subpart K have been 
approved into the Albuquerque/Bernalillo County SIP and codified at 
20.11.1 NMAC (General Provisions, 70 FR 41963, July 21, 2005), 20.11.5 
NMAC (Visible Air Contaminants, 69 FR 78312, Dec. 30, 2004), 20.11.40 
NMAC (Source Registration, 69 FR 78312), 20.11.49 NMAC (Excess 
Emissions, 75 FR 5698, Feb. 4, 2010), 20.11.66 NMAC (Process Equipment, 
69 FR 78312), 20.11.67 NMAC (Equipment, Emissions, Limitations, 69 FR 
78312), and 20.11.90 NMAC (Source Surveillance, 75 FR 5698). 
Requirements in 20.11.47 NMAC (Emission Inventory Requirements) provide 
for the reporting of emission inventories on a schedule consistent with 
EPA regulations at 40 CFR 51.211, subpart K--Source Surveillance. 
20.11.42 NMAC, Operating Permits, encompasses the Title V operating 
permit program for facilities within Bernalillo County. The Title V 
program is a delegated program and does not reside in the SIP.\35\
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    \35\ EPA approved the Albuquerque/Bernalillo County Title V 
program (20.11.42 NMAC, Operating Permits) on November 26, 1996 (61 
FR 60032, effective January 27, 1997) and subsequent revisions on 
September 8, 2004 (69 FR 54244, effective November 8, 2004).
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    Under the Albuquerque/Bernalillo County SIP rules, the AQD is 
required to analyze the emissions data from point, area, mobile, and 
biogenic (natural) sources. The AQD uses this data to track progress 
towards maintaining the NAAQS, develop control and maintenance 
strategies, identify sources and general emission levels, and determine 
compliance with Albuquerque/Bernalillo County and EPA requirements. 
Additionally, the AQD air quality inspectors compare source emissions 
to emission limitations and standards pursuant to 20.11.90.6 NMAC. 
Emissions data are available electronically: http://www.epa.gov/ttn/chief/eiinformation.html. These rules are in the federally-approved 
SIP. A comprehensive list of the chapters and Federal Register 
citations is provided in the TSD.
    EPA is proposing to find that the Albuquerque/Bernalillo County SIP 
meets the requirements of section 110(a)(2)(F) for the 1997 and 2008 8-
hour ozone and the 1997 and 2006 PM2.5 NAAQS.
    Emergency power, pursuant to section 110(a)(2)(G): Section 
110(a)(2)(G) requires states to provide for authority to address 
activities causing imminent and substantial endangerment to public 
health, including contingency plans to implement the emergency episode 
provisions in their SIPs. The AQCB and AQD are empowered by the New 
Mexico Air Quality Control Act to respond to air pollution episodes and 
other air quality emergencies, and the AQCB adopted contingency plans 
to implement emergency episode provisions in the SIP. The Air Pollution 
Episode Contingency Plan for Bernalillo County was approved into the 
SIP on August 12, 1991 (56 FR 38073, effective October 11, 1991). The 
Albuquerque/Bernalillo County Air Pollution Episode Contingency Plan 
(Plan) addresses all the necessary requirements for a Priority 1 region 
(defined in 40 CFR 51.150).
    First, the Plan includes significant harm levels for sulfur 
dioxide, particulate matter, carbon monoxide, ozone, and nitrogen 
dioxide as per 40 CFR 51.151. Second, the Plan adequately addresses all 
requirements for contingency plans outlined in 40 CFR 51.152. Three 
stages of episode criteria as per 40 CFR 51.152(a)(1) and 40 CFR 51, 
appendix L, are set forth: air pollution alert, air pollution warning, 
and air pollution emergency. Prior to reaching the first episode stage, 
an air Stagnation Advisory will be in effect. This is initiated when 
the AQD is notified by the National Weather Service (NWS) that air 
stagnation conditions will persist for a period of 36 hours or more 
within the Middle Rio Grande portion of New Mexico (includes Bernalillo 
County). The Episode Criteria Table on page 3 of the Plan shows alert, 
warning, emergency, and significant harm levels for each of the 
pollutants. The Plan also provides for public announcement of, and 
specifies adequate emission control actions to be taken at, each 
episode stage (40 CFRR 51.152(a)(2) and 40 CFR 51.152(a)(3)). Finally, 
the Plan sufficiently addresses the requirements of 51.152(b)(1-3) 
concerning prompt acquisition of forecasts of atmospheric stagnation 
conditions including updates, source compliance inspections, and 
communication procedures.
    The criteria for ozone are based on a 1-hour average ozone level. 
These episode criteria and contingency measures are adequate to address 
8-hour ozone emergency episodes and are in the federally approved SIP. 
The Albuquerque/Bernalillo County Plan provides for the pollutants 
specified under 40 CFR 51.150, including particulate matter, and is 
consistent with the provisions of 40 CFR 51.151 and 152, and Appendix L 
to Part 51.
    The 2009 Infrastructure SIP Guidance for PM2.5 
recommends that a state with at least one monitored 24-hour 
PM2.5 value exceeding 140.4 [micro]g/m\3\ since 2006 
establish an emergency episode plan and contingency measures to be 
implemented should such level be exceeded again. The 2006-2010 ambient 
air quality monitoring data for Albuquerque/Bernalillo County do not 
exceed 140.4 [micro]g/m\3\. The PM2.5 levels have 
consistently remained below this level (140.4 [micro]g/m\3\), and 
furthermore, the AQCB has appropriate general

[[Page 22264]]

emergency powers to address PM2.5 related episodes to 
protect the environment and public health. Given Albuquerque/Bernalillo 
County's monitored PM2.5 levels, EPA is proposing that 
Albuquerque/Bernalillo County is not required to submit an emergency 
episode plan and contingency measures at this time, for the 1997 and 
2006 PM2.5 standards. Additional detail is provided in the 
TSD.
    EPA is proposing to find that the Albuquerque/Bernalillo County SIP 
meets the requirements of section 110(a)(2)(G) for the 1997 and 2008 8-
hour ozone and 1997 and 2006 PM2.5 NAAQS.
    Future SIP revisions, pursuant to section 110(a)(2)(H): The New 
Mexico AQCA directs the AQD to prepare and develop the SIP and provides 
the AQD with the authority to carry out other duties, requirements and 
responsibilities necessary for the implementation and fulfillment of 
the requirements of the CAA. The New Mexico AQCA (section 74-2-4) 
delegates authority to AQCB to adopt, promulgate, publish, amend and 
repeal regulations consistent with the AQCA to attain and maintain 
NAAQS and prevent or abate air pollution. Thus, the AQCB has the 
authority (AQCA Section 74-2-5.1) to revise the SIP from time to time 
as may be necessary to take into account revisions of primary or 
secondary NAAQS, or the availability of improved or more expeditious 
methods of attaining such standards. Furthermore, the AQCB also has the 
authority under these New Mexico AQCA provisions to revise the SIP in 
the event the EPA, pursuant to the federal CAA, finds the SIP to be 
substantially inadequate to attain the NAAQS.
    EPA is proposing to find that the Albuquerque/Bernalillo County SIP 
meets the requirements of section 110(a)(2)(H) for the 1997 and 2008 8-
hour ozone and 1997 and 2006 PM2.5 NAAQS.
    Consultation with government officials, pursuant to section 
110(a)(2)(J): \36\ The New Mexico AQCA (section 74-2-5--Duties and 
Powers of the Local Board) and Air Quality Control Board Ordinances 
gives the AQD and AQCB authority to advise, consult, contract and 
cooperate with municipalities, counties, other states, the federal 
government and other interested persons or groups in regards to matters 
of common interest in the field of air quality control. The County 
Ordinance 94-5 ``establishes powers and duties of the Board for 
providing for the adoption, administration and enforcement of the 
regulations; providing for variances; providing for permits; providing 
for special regulations consistent with Federal and State requirements 
for prevention of significant deterioration, new source performance 
standards, national emissions standards for hazardous air pollutants 
and providing for operating permits and fees as required by the 1990 
Amendments to the Federal CAA.'' Additionally, 20.11.82 NMAC--
Rulemaking Procedures standardizes the procedures used in rulemaking 
proceedings before the AQCB, including public notice. These rules and 
regulations comply with the requirements of section 121 of the CAA that 
requires that states provide a satisfactory process of consultation 
with general purpose local governments. Furthermore, Bernalillo County 
Ordinance 94-5 states that any regulations adopted by the AQCB must 
include, among other things, any information that the AQD deems 
necessary; specification of public notice; comment period and public 
period; provisions requiring notice to the New Mexico Environment 
Department for permitting sources that emit 100 or more tpy of any 
regulated air contaminant; and provisions that require notice to, and 
review by, EPA. These rules comply with the requirements of CAA section 
121.
---------------------------------------------------------------------------

    \36\ Section 110(a)(2)(J) is divided into three segments: 
consultation with government officials; public notification; and PSD 
and visibility protection.
---------------------------------------------------------------------------

    Therefore, EPA is proposing to find that the Albuquerque/Bernalillo 
County SIP meets this portion of the section 110(a)(2)(J) requirements 
for the 1997 and 2008 8-hour ozone and the 1997 and 2006 
PM2.5 NAAQS.
    Public notification if NAAQS are exceeded, pursuant to section 
110(a)(2)(J): Public notification begins with the air quality 
forecasts, which advise the public of conditions capable of exceeding 
the 8-hour ozone and PM2.5 NAAQS. The air quality forecasts 
for Albuquerque/Bernalillo County can be found on the City of 
Albuquerque \37\ Web site at www.cabq.gov/airquality and are updated 
hourly. Ozone forecasts are made daily during the ozone season for the 
Bernalillo County. The ozone forecasts are made, in most cases, a day 
in advance local time and are valid for the next day. Ozone readings/
warnings and the daily air quality index for the area are generated 
automatically, and sent to the all persons that have signed up on the 
City of Albuquerque Web site (www.cabq.gov/airquality/enviroflash.html 
) to receive email updates, which includes the public, various 
stakeholders and government officials. This Air Quality Notification 
System is a service through airnow.gov and is called EnviroFlash. 
EnviroFlash is a system that sends emails about daily air quality 
forecasts. The message is the same air quality information that the 
local radio or television stations provide, plus suggested safety 
measures when air quality levels are unhealthy. Additionally, the air 
quality index is available via telephone by calling the AQD. Public 
notice is governed by the New Mexico AQCA (section 74-2-6) and 20.11.82 
NMAC--Rulemaking Procedures Air Quality Control Board.
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    \37\ As discussed earlier in this proposed action, the 
Albuquerque Air Quality Division is a part of the City of 
Albuquerque's Department of Environmental Health. The AQD serves as 
the administrative agency for the Bernalillo County Air Quality 
Control Board, which encompasses the City of Albuquerque.
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    EPA is proposing to find that the Albuquerque/Bernalillo County SIP 
meets this portion of the section 110(a)(2)(J) requirements for the 
1997 and 2008 8-hour ozone and 1997 and 2006 PM2.5 NAAQS.
    PSD and visibility protection, section 110(a)(2)(J): This portion 
of section 110(a)(2)(J) in part requires that a state's SIP meet the 
applicable requirements of section 110(a)(2)(C) as relating to PSD 
programs. As discussed previously in this rulemaking with regards to 
section 110(a)(2)(C) and in the TSD, the Albuquerque/Bernalillo 
County's PSD program is in the SIP (12/21/93 at 58 FR 67330 and 4/26/07 
at 72 FR 20728). In addition to the approved program and to meet the 
requirements of 110(a)(2)(C) and 110(a)(2)(D)(i) for 1997 and 2008 
ozone standard, EPA believes Albuquerque/Bernalillo County must have 
updated its PSD rules to treat NOX as a precursor for ozone. 
Thus, we are proposing to approve the SIP revisions (submitted May 24, 
2006 and August 16, 2010) to implement NOX as a precursor to 
ozone. To implement section 110(a)(2)(C) for the 1997 and 2006 
PM2.5 standard, states must provide a SIP revision due May 
16, 2011 under EPA's Implementation of the New Source Review (NSR) 
Program for Particulate Matter Less Than 2.5 Micrometers (73 FR 28321). 
The AQCB adopted rules on July 14, 2010 to meet this requirement and 
the Governor submitted them on August 16, 2010 for approval as a SIP 
revision. We discuss our proposal to approve these revisions and the 
revisions implementing NOX as a precursor to ozone in 
further detail in this rulemaking and in the TSD.
    The most recent New Mexico SIP revision of the Albuquerque/
Bernalillo

[[Page 22265]]

County Regional Haze program, which addresses the visibility transport 
prong for Albuquerque/Bernalillo County, was submitted to EPA on July 
28, 2011. We are evaluating this submittal and will be proposing action 
on the Regional Haze submittal in Spring of 2012. With regard to the 
applicable requirements for visibility protection, EPA recognizes that 
states are subject to visibility and regional haze program requirements 
under part C of the Act (which includes sections 169A and 169B). In the 
event of the establishment of a new NAAQS, however, the visibility and 
regional haze program requirements under part C do not change. Thus, we 
find that there is no new visibility obligation ``triggered'' under 
section 110(a)(2)(J) when a new NAAQS becomes effective. This would be 
the case even in the event a secondary PM2.5 NAAQS for 
visibility is established, because this NAAQS would not affect 
visibility requirements under part C.
    EPA is proposing to find that the Albuquerque/Bernalillo County SIP 
meets the visibility protection requirements of section 110(a)(2)(J) 
for the 1997 and 2008 8-hour ozone and 1997 and 2006 PM2.5 
NAAQS.
    Air quality and modeling and submission of data, pursuant to 
section 110(a)(2)(K): The New Mexico Air Quality Control Act charges 
the AQCB and AQD with preparing and implementing the SIP, which 
includes modeling to inform decisions on nonattainment area boundaries 
and demonstrate effectiveness of SIP control strategies.
    The AQD's air quality modeling work complies with EPA's guidance on 
the use of models in attainment demonstrations for the 8-hour ozone 
standard and uses EPA's latest draft final guidance for modeling 
PM2.5 consistent with the air quality modeling requirements 
in 40 CFR 52.21(l) and (m). EPA Region 6 and AQD modeling staff have 
communicated on numerous occasions regarding modeling for Bernalillo 
County. Additionally, 20.11.61 NMAC Prevention of Significant 
Deterioration requires approval of permits consistent with the modeling 
requirements of 40 CFR 51.21(l) and (m). As stated in the August 16, 
2010 SIP submittal, the AQD commits to continue to use air quality 
models in accordance with EPA's currently approved modeling guidance 
and protocols and the continued submittal of data and modeling results 
to EPA.
    EPA is proposing to find that the Albuquerque/Bernalillo County SIP 
meets the requirements of section 110(a)(2)(K) for the 1997 and 2008 8-
hour ozone and the 1997 and 2006 PM2.5 NAAQS.
    Permitting fees, section 110(a)(2)(L): The AQD has authority to 
collect fees for Title V \38\ and non-Title V permit applications, 
revisions, renewals and inspections pursuant to New Mexico AQCA, New 
Mexico Statutes Annotated (NMSA) 1978 Sections 74-2-4, 74-2-5 and 74-2-
7, the Bernalillo County Ordinance 94-5--Joint Air Quality Control 
Board Sections 3, 4 and 7, and the revised ordinances of Albuquerque 
1994, Section 9-5-1-3, Section 9-5-1-4 and Section 9-5-1-7. For 
example, New Mexico AQCA Section 74-2-7(B)(7) requires by regulation a 
schedule of emission fees consistent with the Title V provisions of 
Section 502(b)(3) of the CAA. The SIP-approved regulation that 
addresses permit fees, AQCB Air Quality Control Regulation Section 21--
Permit Fees (April 10, 1980 at 45 FR 24460) was repealed and replaced 
by the more stringent and broader in scope Albuquerque/Bernalillo 
County AQCB rule effective July 1, 2001 and recodified as 20.11.2 NMAC. 
It was submitted as a SIP revision on May 24, 2011. We have proposed to 
approve the revisions that repeal and replace the existing SIP rule but 
have not finalized our action (November 4, 2011, 76 FR 68385). A 
detailed list of the applicable sections of the NMAC is provided in the 
TSD.
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    \38\ Albuquerque/Bernalillo County has an federally-approved 
Title V fee program in place. EPA approved Albuquerque/Bernalillo 
County's Title V fee program as part of its Title V Operating Permit 
Program on November 26, 1996. See 61 FR 60032. EPA approved 
revisions to the Albuquerque/Bernalillo County Title V fee program 
on September 8, 2004. See 69 FR 54244.
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    The submitted revision that we have proposed to approve addresses 
fees for reviewing and acting on specific permit applications received 
by the AQCD; fees to partially offset the administrative costs of 
permit-related administrative hearings; funding for small business 
stationary sources; and fees to cover administrative expenses. The 
comment period on the proposal closed on December 5, 2011. No comments 
were received.
    EPA is proposing to find that the Albuquerque/Bernalillo County SIP 
meets the requirements of section 110(a)(2)(L) for the 1997 and 2008 8-
hour ozone and the 1997 and 2006 PM2.5 NAAQS.
    Consultation/participation by affected local entities, section 
110(a)(2)(M): New Mexico is divided in two air authorities, 
Albuquerque/Bernalillo County and State of New Mexico covering the 
remaining counties. Each authority is responsible for controlling air 
pollution emitted by stationary sources within its respective 
jurisdiction. The AQD, consistent with regulations adopted by the AQCB, 
consults with and provides liaison to the New Mexico Environment 
Department's Air Quality Bureau and provides frequent and regular 
communication and consultation with their management and staff. Section 
5(B)(4) of the AQCA authorizes the AQD to advise, consult, contract and 
cooperate with municipalities, counties, other states, the federal 
government and other interested persons or groups in regards to matters 
of common interest in the field of air quality control. The AQCB is 
required to conduct public hearings and to solicit testimony from the 
public when plans or rules are proposed to be adopted by the AQCB for 
inclusion into the SIP. Consultation and public involvement are also 
required by 20.11.3 NMAC, Transportation Conformity (75 FR 20922, April 
22, 2010). For example, Subsection (F) Public Consultation Procedures 
of 20.11.3.105 NMAC, requires ``affected agencies making conformity 
determinations on transportation plans, programs and projects shall 
establish a proactive public involvement process that provides 
opportunity for public review and comments * * *'' EPA is proposing to 
find that the Albuquerque/Bernalillo County SIP meets the requirements 
of section 110(a)(2)(M) for the 1997 and 2008 8-hour ozone and the 1997 
and 2006 PM2.5 NAAQS.

V. Additional Revisions to the Albuquerque/Bernalillo County SIP

    EPA is also proposing to approve a portion of a SIP submission that 
addresses Ambient Air Quality Standards.
    Ambient Air Quality Standards: The provisions for ambient air 
quality standards are addressed at 20.11.8 NMAC, or Part 8 of the 
Albuquerque/Bernalillo County SIP. This provision was approved into the 
SIP on May 31, 2006 (71 FR 30805). This provision incorporates by 
reference the state ambient air quality standards and summarizes the 
local ambient air quality standards that are identical to the NAAQS, 
which are codified at 40 CFR Part 50.4 et seq. On November 6, 2009, the 
Governor of New Mexico submitted a revision to the New Mexico SIP that 
included among other things, Ambient Air Quality Standards, codified at 
20.11.8 NMAC (Part 8). The substantive revisions submitted to Part 8 
again revise the local ambient air quality standards to make them 
consistent with the current NAAQS. Specifically, the standards for 
carbon monoxide (CO), ozone (O3), sulfur

[[Page 22266]]

dioxide (SO2), PM2.5, PM10 and lead 
(Pb) were revised to reflect the new standards for those pollutants. 
Non-substantive revisions are editorial in nature with the replacement 
of terms and other clarifications or typographical corrections. We are 
proposing to approve the severable portion of the November 6, 2009 SIP 
revision submittal that revises Part 8, because it will ensure that the 
Albuquerque/Bernalillo County SIP contains standards that are 
consistent with the latest Federally-promulgated NAAQS. Appendix A of 
the TSD for this rulemaking provides more detail regarding the specific 
revisions.

VI. Proposed Action

    We are proposing to approve the submittals provided to demonstrate 
that the Albuquerque/Bernalillo County SIP meets the infrastructure 
elements for the 1997 and 2008 ozone and 1997 and 2006 PM2.5 
NAAQS listed below:

    Emission limits and other control measures (110(a)(2)(A) of the 
Act);
    Ambient air quality monitoring/data system (110(a)(2)(B) of the 
Act);
    Program for enforcement of control measures (110(a)(2)(C) of the 
Act);
    Interstate transport, pursuant to section 110(a)(2)(D)(ii) of 
the Act;
    Adequate resources (110(a)(2)(E) of the Act);
    Stationary source monitoring system (110(a)(2)(F) of the Act);
    Emergency power (110(a)(2)(G) of the Act);
    Future SIP revisions (110(a)(2)(H) of the Act);
    Consultation with government officials (110(a)(2)(J) of the 
Act);
    Public notification (110(a)(2)(J) of the Act);
    Prevention of significant deterioration and visibility 
protection (110(a)(2)(J) of the Act);
    Air quality modeling data (110(a)(2)(K) of the Act);
    Permitting fees (110(a)(2)(L) of the Act); and
    Consultation/participation by affected local entities 
(110(a)(2)(M) of the Act).

    We are also proposing to approve the portion of the Albuquerque/
Bernalillo County SIP revision submittal that addresses the requirement 
of section (110)(a)(2)(D)(i)(II) of the Act that emissions from sources 
in Albuquerque/Bernalillo County do not interfere with measures 
required in the SIP of any other state under part C of the Act 
regarding PSD for the 1997 and 2008 8-hour ozone and 1997 and 2006 
PM2.5 NAAQS.
    We are proposing to approve Albuquerque/Bernalillo County PSD SIP 
provisions to 20.11.61 NMAC submitted May 24, 2006 and August 16, 2010. 
These SIP revisions address NOX as a precursor for ozone, 
consistent with EPA's November 29, 2005 Phase 2 rule for the 1997 ozone 
NAAQS (70 FR 71612). These revisions also identify the precursors for 
PM2.5 and significant emission rates necessary for 
PM2.5 PSD permitting, consistent with the 1997 and 2006 
PM2.5 NAAQS (73 FR 28321, May 16, 2008). Additionally, the 
May 24, 2006 and August 16, 2010 submittals make numerous other changes 
necessary to maintain consistency with the federal PSD permitting 
requirements. Specifically, we are proposing to approve revisions to 
20.11.61.7, 20.11.61.28, and 20.11.61.29 NMAC submitted on May 24, 
2006. We are also proposing to approve revisions to 20.11.61.1, 
20.11.61.2, 20.11.61.7, 20.11.61.11, 20.11.61.12, 20.11.61.14, 
20.11.61.15, 20.11.61.16, 20.11.61.17, 20.11.61.18, 20.11.61.19, 
20.11.61.20, 20.11.61.23, 20.11.61.24, 20.11.61.25, 20.11.61.26, 
20.11.61.27, 20.11.61.28, 20.11.61.29, 20.11.61.30, and 20.11.61.31 
NMAC submitted on August 16, 2010.
    We are also proposing to approve SIP revisions from November 6, 
2009 pertaining to updating Part 8 Ambient Air Quality Standards 
(20.11.8 NMAC). EPA is proposing to approve these revisions pursuant to 
section 110 of the CAA. These revisions improve the Albuquerque/
Bernalillo County SIP and update 20.11.8 NMAC to add new standards and 
revise existing NAAQS in 20.11.8 NMAC to be consistent with 40 CFR Part 
50--National Primary and Secondary Ambient Air Quality Standards.

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxides, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: March 30, 2012.
Samuel Coleman,
Acting Regional Administrator, Region 6.
[FR Doc. 2012-8927 Filed 4-12-12; 8:45 am]
BILLING CODE 6560-50-P
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