New Mexico State Implementation Plan Elements 

(Albuquerque-Bernalillo County) 

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

2010 Sulfur Dioxide (SO2) National Ambient Air Quality Standards (NAAQS) 

Docket ID EPA-R06-OAR-2015-0431 

Technical Support Document 

August 2015 

Table of Contents: 

I. Introduction 

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

II. Additional Background 

A. What are the National Ambient Air Quality Standards? 

B. What is a SIP? 

C. Additional Information 

III. SIP elements required under Section 110(a)(2) for the 2010 SO2 NAAQS, the State’s 

submittals and EPA’s analysis 

IV. Recommendations 

V. References 

I. Introduction 

In this technical support document (TSD), EPA is providing additional documentation 

concerning our evaluation of the submittal provided by the Albuquerque Environmental Health 

Department to meet the requirements of section 110(a)(2) of the Clean Air Act (CAA or Act) for 

the 2010 national ambient air quality standards (NAAQS or standards) for sulfur dioxide (SO2). 

More detail on these standards, section 110(a)(1) and (2) of the Act, and the submittal we are 

reviewing to determine if the Albuquerque-Bernalillo County, New Mexico SIP satisfies the 

section 110(a)(2) requirements, is provided in subsection A below. Throughout this document, 

“we,” “us,” and “our” means EPA. 

Section II of this TSD provides additional background material on the NAAQS, State 

Implementation Plans (SIPs), and related issues. 

Section III of this TSD provides a description of each element required under section 

110(a)(2) of the Act, the State’s response, and additional details of our analysis of the State’s 

response that are not included in the Federal Register notice for this proposed action. Copies of 

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

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

reviewed herein. 

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

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

 

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

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 
Page 2 of 16

that must be incorporated into the SIPs, including for example, requirements for air pollution 

control measures, which are designed to assure attainment and maintenance of the NAAQS. 

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

section 110(a)(2) of the Act. The schedule for completion of EPA’s periodic review of both SO2

NAAQS was established in Section 109 (d)(1) of the CAA, which requires that “not later than 

December 31, 1980, and at 5-year interval thereafter, the EPA shall complete a thorough review 

of the criteria published under section 108 and the national ambient air quality standards,... and 

shall make such revisions in such criteria and standards and promulgate such new standards as 

may be appropriate in accordance with section 108”. 

For the 2010 SO2 NAAQS, states typically have met many of the basic program elements 

required in section 110(a)(2) through earlier SIP submissions in connection with previous 

NAAQS. Nevertheless, pursuant to section 110(a)(1), states have to review and revise, as 

appropriate, their existing SIPs to ensure that they are adequate to address the 2010 SO2

NAAQSs. To assist states in meeting this statutory requirement, EPA issued guidance on 

September 13, 2013, addressing the infrastructure SIP elements required under sections 

110(a)(1) and (2) for the NAAQS1

. 

On June 11, 2015, the Secretary of the New Mexico Environment Department (NMED) 

submitted a letter certifying that the Air Quality Program of the City of Albuquerque’s 

Environmental Health Department (AQP), as agent for the Albuquerque-Bernalillo County Air 

Quality Control Board (Air Board) has evaluated the New Mexico SIP and found that the 

Albuquerque-Bernalillo County portion of the SIP satisfies all the requirements of section 

110(a)(1) and (2) for the 2010 SO2 NAAQS. The June 11, 2015 submittal includes a table with 

an explanation of how the current New Mexico SIP for Albuquerque-Bernalillo County meets 

the requirements of each applicable element of section 110(a)(2) for the 2010 SO2 NAAQS. This 

TSD provides additional details of New Mexico’s certification and EPA’s evaluation that are not 

included in the official Federal Register notice for this action. 

II. Additional Background 

 A. What are the National Ambient Air Quality Standards? 

 Section 109 of the Act requires EPA to establish NAAQS for pollutants that “may 

reasonably be anticipated to endanger public health and welfare,” and to develop a primary and 

secondary standard for each NAAQS. The primary standard is designed to protect human health 

with an adequate margin of safety, and the secondary standard is designed to protect public 

welfare and the environment. EPA has set NAAQS for six common air pollutants, referred to as 

criteria pollutants. These pollutants are: carbon monoxide, lead, nitrogen dioxide, ozone, 

particulate matter, and sulfur dioxide. These standards present state and local governments with 

the minimum air quality levels they must meet to comply with the Act. Additionally, these 

standards provide information to residents of the United States about the quality of the air in their 

communities. 

 

 B. What is a SIP? 

 

1

 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 

110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013. 
Page 3 of 16

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

control strategies, other means or techniques, and technical analyses developed by the state, to 

ensure that the state meets the NAAQS. The SIP is required by section 110 and other provisions 

of the Act. These SIPs can be extensive, containing state regulations or other enforceable 

documents and supporting information such as emissions inventories, monitoring networks, and 

modeling demonstrations. Each state must submit these regulations and control strategies to EPA 

for approval and incorporation into the federally enforceable SIP. Each federally approved SIP 

protects air quality primarily by addressing air pollution at its point of origin. 

C. Additional Information 

As indicated in the Federal Register notice for this action, this proposed rulemaking will 

not cover four substantive issues that are not integral to acting on a state’s infrastructure SIP 

submission: (i) existing provisions related to excess emissions during periods of start-up, 

shutdown, or malfunction at sources, that may be contrary to the CAA and EPA’s policies 

addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's 

variance” or “director's discretion” that purport to permit revisions to SIP approved emissions 

limits with limited public process or without requiring further approval by EPA, that may be 

contrary to the CAA (“director's discretion”); (iii) existing provisions for minor source NSR 

programs that may be inconsistent with the requirements of the CAA and EPA’s regulations that 

pertain to such programs (“minor source NSR”); and, (iv) existing provisions for PSD programs 

that may be inconsistent with current requirements of EPA’s “Final NSR Improvement Rule,” 67 

FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). 

Instead, EPA has indicated that it has other authority to address any such existing SIP defects in 

other rulemakings, as appropriate. A detailed rationale for why these four substantive issues are 

not part of the scope of infrastructure SIP rulemakings can be found in EPA’s July 13, 2011, 

final rule entitled, “Infrastructure SIP Requirements for the 1997 8-hour Ozone and PM2.5

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

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

III. SIP elements required under Section 110(a)(2) for the 2010 Sulfur Dioxide (SO2) 

NAAQS, the State’s submittals and EPA’s analysis 

 The Federally approved SIP for each state is listed in 40 CFR Part 52. The first section 

in this subpart for any state is the “Identification of plan.” The Identification of plan lists the 

EPA-approved provisions of the SIP for each state, as provided under section 110 of the Act, 42 

U.S.C. 7410, and 40 CFR 51 to meet the NAAQS. The status of the New Mexico SIP is 

provided in 40 CFR Part 52, Subpart GG, sections 1620 to 1640. The Identification of plan for 

the Albuquerque-Bernalillo County is in section 1620; this constitutes the applicable SIP for the 

County, for purposes of the Act. 

Per the General Preamble to the 1990 Clean Air Act Amendments (April 16, 1992 at 57 

FR 13498), section 110(a)(2) sets forth elements that a SIP must contain in order to be fully 

approved.2

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

included in the Federal Register notice for this action, which we considered in performing our 

evaluation of New Mexico’s infrastructure SIP (Albuquerque-Bernalillo County) submittal for 

the 2010 SO2 NAAQS. Where it is useful, we include tables showing the date that the applicable 

state rules were approved by EPA into the New Mexico SIP. 

 

2

 The discussion of section 110(a)(2), subsections (A) through (M) begins on p. 13556 of the General Preamble. 
Page 4 of 16

1. Enforceable emission limits and other control measures: Section 110(a)(2)(A) requires 

SIPs to include enforceable emission limits and other control measures, means or techniques, as 

well as schedules and timetables for compliance, as necessary or appropriate to meet the 

requirements of the Act. 

 

The State’s response: Albuquerque-Bernalillo County’s enforceable emission limitations and 

other control measures are authorized in the New Mexico Air Quality Control Act (AQCA) and 

those provisions of the New Mexico Administrative Code (NMAC) Title 20- Environment 

Protection, Chapter 11- Albuquerque-Bernalillo County Air Quality Control Board (Air Board), 

listed in 40 CFR Part 52 Subpart GG, and source-specific provisions codified at 40 CFR Part 52 

Subpart GG. The State also asserted that the regulations authorized by Chapter 74- 

Environmental Improvement Article 2, Air Pollution, -- of New Mexico’s state statute (1978 

NMSA) are duly adopted by the Air Board, and where these provisions relate to section 110 

requirements, SIP revisions have been submitted to and approved by EPA. The State also 

indicates that the AQP has an EPA-approved air permitting program for both major and minor 

sources, which ensures that all applicable requirements are included in the source’s permit. The 

AQP has determined that no reductions in SO2 emissions are required for maintenance of the 

2010 SO2 NAAQS. 

 Furthermore, the State asserts that, pursuant to NMAC 20.11.49, AQP does not exempt 

from enforcement any excess emissions that occur during periods of startup, shutdown, 

maintenance, or malfunction. Emissions in excess of permit or regulatory limits are 

presumptively violations, subject to affirmative defenses with the burden of proof on the 

respondent. 

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

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

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

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

enforceable.3 Legislative authority for Albuquerque-Bernalillo County’s air quality program is 

codified in Chapter 74 Environmental Improvement Article 2, Air Pollution, of the New Mexico 

Statutes, which gives the Albuquerque-Bernalillo County Air Quality Control Board (Air Board) 

and the Albuquerque Environmental Health Department’s Air Quality Program (AQP) the 

authority to implement the CAA in New Mexico within the boundary of Albuquerque-Bernalillo 

County. The Air Board has promulgated rules to limit and control emissions of, among other 

things, SO2. 

Table 1: Albuquerque-Bernalillo County rules relevant to meeting section 110(a)(2)(A): 

Relevant Section of New Mexico’s SIP EPA Approval/Federal Register4

20.11.1 NMAC – General Provisions May 7, 2015 at 80 FR 26189 

20.11.3 NMAC – Transportation Conformity February 18, 2014 at 79 FR 9097 

20.11.4 NMAC – General Conformity February 18, 2014 at 79 FR 9097 

 

3

 See 57 FR 13498, beginning on p. 13556. 

4

 This is the EPA approval date currently found in New Mexico’s Identification of Plan at 40 CFR 52.1620(c). This 

date reflects our most recent approval of revisions to the applicable New Mexico air regulations in the New Mexico 

SIP. 
Page 5 of 16

Relevant Section of New Mexico’s SIP EPA Approval/Federal Register4

20.11.5 NMAC – Visible Air Contaminants December 30, 2004 at 69 FR 78314 

20.11.6 NMAC – Emergency Action Plans December 30, 2004 at 69 FR 78314 

20.11.7 NMAC – Variance Procedure May 31, 2006 at 71 FR 30805 

20.11.8 NMAC – Ambient AQ Standards September 19, 2012 at 77 FR 58032 

20.11.20 NMAC – Fugitive Dust Control April 1, 2009 at 74 FR 14731 

20.11.21 NMAC – Open Burning November 29, 2012 at 77 FR 71119 

20.11.22 NMAC - Woodburning December 30, 2004 at 69 FR 78314 

20.11.40 NMAC – Source Registration December 30, 2004 at 69 FR 78314 

20.11.41 NMAC – Authority to Construct December 30, 2004 at 69 FR 78314 

20.11.43 NMAC – Stack Height Requirements December 30, 2004 at 69 FR 78314 

20.11.49 NMAC – Excess Emissions February 4, 2010 at 75 FR 5698 

20.11.60 NMAC – Permitting in NA Areas April 26, 2007 at 72 FR 20728 

20.11.61 NMAC - PSD August 31, 2015 at 80 FR 52401 

20.11.63 NMAC - NSPS December 30, 2004 at 69 FR 78314 

20.11.64 NMAC – Emission Standards for HAPs December 30, 2004 at 69 FR 78314 

20.11.65 NMAC – Volatile Organic Compounds February 4, 2010 at 75 FR 5698 

20.11.66 NMAC – Process Equipment December 30, 2004 at 69 FR 78314 

20.11.67 NMAC – Equipment, Emissions, Limitations December 30, 2004 at 69 FR 78314 

20.11.68 NMAC – Incinerators and Crematories December 30, 2004 at 69 FR 78314 

20.11.90 NMAC – Source Surveillance February 4, 2010 at 75 FR 5698 

20.11.100 NMAC – Motor Vehicle Inspection 

(Decentralized) October 31, 2012 at 77 FR 65821 

20.11.102 NMAC – Oxygenated Fuels February 11, 2010 at 75 FR 6813 

20.11.103 NMAC – Motor Vehicle Visible Emissions December 30, 2004 at 69 FR 78314 

Name of SIP Provision EPA Approval/Federal Register5

Infrastructure and Interstate Transport regarding noninterference 

with other states’ programs for PSD for the 1997 and 2008 Ozone 

and the 1997 and 2006 PM2.5 NAAQS. 

August 8, 2012 at 77 FR 58032 

Based on the above, we are proposing that the Albuquerque-Bernalillo County SIP meets the 

requirements of section 110(a)(2)(A) for the 2010 SO2 NAAQS. 

2. Ambient air quality monitoring and data analysis system: Section 110(a)(2)(B) requires 

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

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

request. 

The State’s response: AQP maintains a monitoring network for the NAAQS, and submits an 

annual Network Assessment to EPA, which describes how it has complied with monitoring 

requirements and explains any proposed changes. 

 

5 Id.
Page 6 of 16

While EPA has not made an official designation for Bernalillo County of attainment or 

nonattainment, ambient air quality data reported in the 2014 Annual Air Monitoring Network 

Plan (AAMNP) showed SO2 levels less than 10% of the 2010 SO2 NAAQS. The EPA-approved 

2014 AAMNP describes ongoing activities for monitoring SO2. These activities comply with 

EPA requirements for State and Local Air Monitoring Stations (SLAMS) network and National 

Core Multi-Pollutant Monitoring Stations (NCore) network. 

AQP determined in 2011 that it was not required to install new monitors under the revised SO2

NAAQS.6

 However, in an effort unrelated to the revised SO2 NAAQS, AQP began SO2

monitoring under the NCore program in 2010. 

 

EPA analysis: As noted in the Federal Register notice for this proposed action, our analysis 

included review of New Mexico’s recurrent 5-year ambient monitoring network assessment 

submitted in June 2010 and New Mexico’s annual ambient monitoring network review submitted 

in July 2013. Copies of these documents are available in the docket for this rulemaking. As 

indicated in these documents, the 2010 SO2 NAAQS, EPA regulations require that ambient SO2

monitors are based on population per Core-based Statistical Area (CBSA) and amount of SO2

emissions within that CBSA, that is, the Population Weighed Emissions Index (PWEI) and based 

on individual state contribution to national SO2 inventory in the 2005 National Emissions 

Inventory (NEI). Based on the PWEI criteria, NMED would not need to deploy any new 

monitors. 

Based on the above, we are proposing that the Albuquerque-Bernalillo County SIP meets the 

requirements of section 110(a)(2)(B) for the 2010 SO2 NAAQS. 

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

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

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

covered by the SIP as necessary to assure that the NAAQS are achieved, including a permit 

program as required in parts C and D. 

The State's response: AQP has established regulations governing the enforcement of control 

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

modification of stationary sources. See 20.11.41 NMAC, 20.11.60 NMAC and 20.11.61 NMAC. 

AQP’s Prevention of Significant Deterioration (PSD) program applies to sources that emit 

greenhouse gases in accordance with EPA’s tailoring rule. See 20.11.61.7.CCC NMAC 

EPA analysis: EPA has found the New Mexico SIP provisions set forth herein at Table 1, as 

well as the provisions set forth in 40 CFR §§ 52.1634, 52.1640, as pertinent in ensuring 

Albuquerque-Bernalillo County’s compliance with the requirements of Section 110(a)(2)(C). 

The New Mexico AQCA provides the AQCB with enforcement authority and AlbuquerqueBernalillo County has an EPA-approved air permitting program 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 (February 4, 

2010 at 75 FR 5698). The rules in 20.11 NMAC address allowable emission rates, compliance, 

 

6

 Letter from Susana Martinez, Governor of New Mexico, to Al Armendariz, Regional Administrator, EPA Region 6 

(May 24, 2011). 
Page 7 of 16

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. For example, 20.11.20 

NMAC addresses fugitive dust control and has provisions for assessment of administrative 

enforcement actions and administrative penalties for violations of permit terms and conditions, 

along with injunctive relief (SIP-approved April 1, 2009 at 74 FR 14731). The permitting rules 

for Albuquerque-Bernalillo County at 20.11.41, 20.11.42, 20.11.60 and 20.11.61 NMAC are 

governed by Bernalillo County Ordinance 94-5, known as the Joint Air Quality Control Board 

Ordinance, provides the AQP with authority to enforce permitting provisions, and provide 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 AQP have the necessary legal 

authority to have reasonable 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 AQP have the requisite legal authority 

to implement and enforce the minor and major permit revision procedures in accordance with the 

requirements of the CAA. 

In this action, EPA is proposing to approve Albuquerque-Bernalillo County’s Infrastructure SIP 

for the 2010 SO2 standard with respect to the general requirement in section 110(a)(2)(C) to 

include a program in the SIP that regulates the modification and construction of any stationary 

source necessary to assure that the NAAQS are achieved. EPA did not reevaluate AlbuquerqueBernalillo County’s minor source program at this time, and therefore, 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 that the Albuquerque-Bernalillo County SIP meets the 

requirements of section 110(a)(2)(C) for the 2010 SO2 NAAQS. 

4. Interstate transport, and interstate and international pollution abatement: Section 

110(a)(2)(D) is divided into two components, 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 

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

emissions activity in one state from contributing significantly to nonattainment in, or interfering 

with maintenance of the NAAQS, in another state, or from interfering with measures required to 

prevent significant deterioration of air quality or to protect visibility in another state. 

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

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

The State's response: 

 Albuquerque-Bernalillo County has sufficient controls measures in place to ensure that 

sources emitting SO2 do not interfere with another state’s maintenance of the 2010 SO2 NAAQS 
Page 8 of 16

or contribute to a state’s nonattainment of the NAAQS. AQP has determined that this 

infrastructure will be sufficient to avoid negatively impacting NAAQS attainment and 

maintenance in other states in view of the following factors: 

1. The relative scarcity of major SO2 sources in Albuquerque-Bernalillo County. 

Albuquerque-Bernalillo County has only two major SO2 sources. One is the Albuquerque 

Southside Water Reclamation Plant. The other is the Tijeras Plant, a cement production 

facility. 

2. The minimum amount of emissions from those sources. The Tijeras Plant is permitted to 

emit 1,417.8 tons per year of oxides of sulfur. According to data available to AQP, this 

facility’s reported actual emissions averaged only 20.66 tons SO2 per year from 2011 to 

2013. 

EPA analysis: As discussed in more detail in the Federal Register notice, there is no source or 

other emissions activity in Albuquerque-Bernalillo County that contributes significantly to 

nonattainment in, or interference with, maintenance by another state, the infrastructure SIP PSD 

requirements are satisfied, as explained herein and in the Federal Register notice pertaining to 

Section 110(a)(2)(C). Furthermore, any Albuquerque-Bernalillo County SO2 emissions do not 

preclude New Mexico from ensuring compliance with CAA Sections 126 and 115. We are 

therefore proposing that the Albuquerque-Bernalillo County SIP meets the requirements of 

section 110(a)(2)(D) for the 2010 SO2 NAAQS. 

5. Adequate personnel, funding, and authority: Section 110(a)(2)(E) requires states to 

provide for adequate personnel, funding, and legal authority under state law to carry out its SIP 

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

interest contained in section 128 of the Act and requires assurances that the state retain primacy 

for implementation of the SIP in cases where the state relies upon local or regional government 

agencies. 

The State’s response: 

New Mexico statute 74-2-5 “Duties and powers: environmental improvement board; local board” 

gives the Air Board authority to develop, implement and enforce the SIP. 

74-2-5 provides the Air Board adequate legal authority to adopt emission standards and 

compliance schedules applicable to regulated entities, and to adopt emission standards and 

limitations and any other measures necessary for attainment and maintenance of national 

standards. 

74-2-5 also provides the Air Board adequate legal authority to enforce applicable laws, 

regulations, standards and compliance schedules and seek injunctive relief. In addition, 74-2-5 

provides the department legal authority to enforce applicable laws, regulations, standards and 

compliance schedules. 

The resources to carry out the implementation plan are provided through General Funds, Permit 

Fees and the CAA grant process. Permit Fees are collected under authority of 74-2-7. 

No organizations outside of AQP will participate in implementing or enforcing the SIP. AQP has 

adequate personnel to implement the SIP with respect to SO2 requirements. 
Page 9 of 16

Section 74-1-4 provides that the Air Board contain a majority of members who represent the 

public interest and do not derive any significant portion of their income from persons subject to 

or who appear before the board on issues related to the CAA or Air Act. Board members are 

required to recuse themselves from rule-makings in which their impartiality may reasonably be 

questioned (20.11.82.14 NMAC). 

Albuquerque-Bernalillo County is authorized to carry out all portions of New Mexico’s SIP 

within Albuquerque-Bernalillo County (Section 74-2-4). The NMED and the state 

Environmental Improvement Board retain oversight authority in the event the local authority 

fails to act (Section 74-2-4(D)). 

EPA analysis: The Albuquerque-Bernalillo County AQCB is the federally delegated air quality 

authority for Albuquerque and Bernalillo County, New Mexico. The AQCA (section 74-2-4) 

authorizes Albuquerque-Bernalillo County to locally administer and implement the AQCA 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 Albuquerque-Bernalillo County, the AQCB is authorized 

to adopt, promulgate, publish, amend and repeal regulations consistent with the AQCA, and to 

maintain national ambient air quality standards and prevent or abate air pollution, including 

regulations prescribing air standards, within Albuquerque-Bernalillo County (with the exception 

of tribal lands). 

Through the City of Albuquerque’s Department of Environmental Health, the Albuquerque AQP 

serves as the administrative agency for the AQCB. The AQP is authorized to administer and 

enforce the provisions of the AQCA within the boundary of Albuquerque-Bernalillo County. 

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 AQP to adjust funding 

and personnel needs to carry out air programs to meet the CAA. The Albuquerque-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. AQP does not anticipate the need for additional 

resources to implement the new SO2 standard. 

The AQP receives federal funds on an annual basis, under sections 103 and 105 of the Act, to 

support its air quality programs. The AQP 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. 

Section 110(a)(2)(E)(ii) requires that the state comply with section 128. Section 128 requires: 1) 

that the majority of members of the state body which approves permits or enforcement orders do 
Page 10 of 16

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 AlbuquerqueBernalillo County 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 both the State of New Mexico and by 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. 

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 infrastructure 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 General Provisions 20.11.1.3 NMAC, which is SIP-approved. 

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 2010 SO2 NAAQS. 

6. Stationary source emissions monitoring and reporting: Section 110(a)(2)(F) requires, as 

may be prescribed by the Administrator, (i) the installation, maintenance and replacement of 

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

sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts 

of emissions and emissions-related data from such sources, and (iii) correlation of such reports 

by the State agency with any emission limitations or standards established pursuant to this Act, 

which reports shall be available at reasonable times for public inspection. 

The State's response: Regulatory requirements have been codified at 20.11.41 NMAC, Authority 

to Construct, 20.11.42 NMAC, Operating Permits, 20.11.60 NMAC, Permitting in 

Nonattainment Areas (pertaining to sampling and testing), and 20.11.49 NMAC, Excess 

Emissions. 

Requirements in 20.11.47 NMAC, Emission Inventory Requirements provide for the reporting of 

emissions inventories in a format established by AQP on a schedule prescribed by the regulation. 

20.11.90 NMAC, Source Surveillance; Administration and Enforcement, establishes the general 

requirements for maintaining records and reporting emissions, including record keeping, data 

submissions and public access to emissions data. 

EPA analysis: The AQCA provides Albuquerque-Bernalillo County with authority to require 

monitoring and recordkeeping and to require the submittal of emissions data to develop an 

emissions inventory. In addition to the regulatory references cited by Albuquerque-Bernalillo 

County, EPA has found the following from NMAC as relevant in demonstrating that the 

Albuquerque-Bernalillo County SIP meets the requirements of section 110(a)(2)(F): 

Regulation 20.11.1 NMAC General Provisions 
Page 11 of 16

Regulation 20.11.41 NMAC Authority to Construct 

Regulation 20.11.42 NMAC Operating Permits 

Regulation 20.11.47 NMAC Emissions Inventory Requirements 

Regulation 20.11.60 NMAC Permitting in Nonattainment Areas 

Regulation 20.11.61 NMAC Prevention of Significant Deterioration (PSD) 

Regulation 20.11.63 NMAC New Source Performance Standards 

EPA has also found the New Mexico SIP provisions set forth herein at Table 1, used to satisfy 

the requirements of Section 110(a)(2)(A), as useful in demonstrating compliance. As set forth 

herein and in the Federal Register notice in more detail, EPA is proposing to find that the 

Albuquerque-Bernalillo County SIP meets the requirements of Section 110(a)(2)(F) for the 2010 

SO2 NAAQS. 

7. Emergency power: Section 110(a)(2)(G) requires states to provide for authority to address 

activities causing imminent and substantial endangerment to public health, including adequate 

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

The State's response: Pursuant to 40 CFR 51, Subpart H, Prevention of Air Pollution Emergency 

Episodes, on January 29, 1989, the Air Board adopted the Air Pollution Episode Contingency 

Plan for Bernalillo County [8/21/91, 56 FR 38074; 40 CFR 52.1639, Prevention of Air Pollution 

Emergency Episodes], which is part of the SIP, and covers air pollution episodes and the 

occurrence of an emergency due to the effects of the pollutants on the health of persons. 

EPA analysis: Section 110(a)(2)(G) requires that each SIP submittal specify what authority may 

restrain any source from causing or contributing to SO2 emissions that present an imminent and 

substantial endangerment to public health or welfare, or the environment. The Air Board adopted 

into its SIP the Air Pollution Episode Contingency Plan for Bernalillo County [8/21/91, 56 FR 

38074; 40 CFR 52.1639, Prevention of Air Pollution Emergency Episodes], which is part of the 

SIP, and covers air pollution episodes and the occurrence of an emergency due to the effects of 

the pollutants on the health of persons. 

EPA is proposing to find that the Albuquerque-Bernalillo County SIP meets the requirements of 

Section 110(a)(2)(G) for the 2010 SO2 NAAQS. 

8. Future SIP revisions: Section 110(a)(2)(H) requires states to have the authority to revise 

their SIPs in response to changes in the NAAQS, availability of improved methods for attaining 

NAAQS, or in response to an EPA finding that the SIP is substantially inadequate. 

The State’s response: Albuquerque-Bernalillo County’s SIP is a compilation of regulations, 

plans and submittals that act to improve and maintain air quality in accordance with national 

standards. The authority to develop or revise the SIP is based on the authority to adopt new 

regulations and revise existing regulations to meet the NAAQS. NMSA 1978 Section 74-7-5 

gives the board authority to adopt regulations to abate, control and prohibit air pollution 

throughout Albuquerque-Bernalillo County in accordance with provisions of the State Rules Act 

[Chapter 14, Article 4, NMSA 1978]. Nothing in New Mexico’s statutory or regulatory authority 

prohibits Albuquerque-Bernalillo County from revising the SIP in the event of a revision to the 

NAAQS. 
Page 12 of 16

EPA analysis: Albuquerque-Bernalillo County has the authority to revise its SIP as necessary to 

account for revisions of the NAAQS, adopt more effective methods of attaining the NAAQS, and 

respond to EPA SIP calls as set forth herein and in the Federal Register notice. We are therefore 

proposing that the Albuquerque-Bernalillo County SIP meets the requirements of section 

110(a)(2)(H) for the 2010 SO2 NAAQS. 

9. Nonattainment area plans or plan revisions under Part D of the CAA: Section 

110(a)(2)(I) contains provisions related to the submission of nonattainment area plans or plan 

revisions as specified in Part D of the CAA. 

The State's response: Compliance with the SO2 standard will be evaluated using Air Monitoring 

FRM Quality Assurance SO2 Data submitted with SIP revisions for any future nonattainment 

areas. SIP revisions related to nonattainment areas will comply with Subpart D requirements, as 

applicable. The currently approved nonattainment area SIP provisions listed in 40 CFR Section 

52, Subpart GG also meet Subpart D requirements. 

EPA analysis: As noted previously, EPA does not expect infrastructure SIP submissions to 

address subsection 110(a)(2)(I). Nonattainment area plans required under Part D are required to 

be submitted on a different schedule from the Section 110 infrastructure elements and will be 

reviewed and acted upon through a separate process.

10. Consultation, public notice, and PSD and visibility protection: Section 110(a)(2)(J) is 

divided into three components: consultation with government officials, public notification 

requirements, and provisions for PSD and visibility protection. With regards to consultation with 

government officials, this section requires states to provide a process for consultation with local 

governments and Federal Land Managers (FLMs) carrying out NAAQS implementation 

requirements pursuant to section 121 relating to consultation. Section 110(a)(2)(J) further 

requires states to notify the public if NAAQS are exceeded in an area and to enhance public 

awareness of measures that can be taken to prevent exceedances. Section 110(a)(2)(J) also 

requires States to meet applicable requirements of Part C related to Prevention of Significant 

Deterioration and visibility protection. 

The State's response: All SIP revisions undergo public notice and hearing, which provides for 

opportunities to comment by the public, including local political subdivisions. 20.11.82 NMAC, 

Rulemaking Procedures – Air Quality Control Board, stipulates notice requirements for rule 

making and is used as a guide for notice requirements when adopting SIPs. 

Air quality data from AQP’s monitoring network is available to the public via EPA’s website at: 

http://www.epa.gov/air/data/geosel.html. Additionally, as part of the 105 grant process, AQP is 

required to submit monitoring data to the Air Quality System (AQS) 90 days after the end of a 

quarter. Data can also be retrieved via a link through the AQP website: 

http://cabq.gov/airquality/airqualitymonitoringdata.html which also contains information on the 

air quality index and ways the public can participate in regulatory and planning efforts. 

The Air Board has adopted 20.11.61 NMAC- Prevention of Significant Deterioration following 

the requirements outlined in 40 CFR 52 under section 161 of the CAA [42 U.S.C.A. §7471] for 

prevention of significant deterioration. These provisions were approved by EPA as part of the 

SIP, effective 5/29/07 [40 CFR 52.1634]. 
Page 13 of 16

EPA analysis: Consultation with government officials, section 110(a)(2)(J): The AQCA (section 

74-2-5 – Duties and Powers of the Local Board) and Air Quality Control Board Ordinances give 

AQP the 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. 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.7

Public notification if NAAQS are exceeded, pursuant to section 110(a)(2)(J): Public notice is 

governed by the AQCA (section 74-2-6) and 20.11.82 NMAC – Rulemaking Procedures Air 

Quality Control Board. 

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 this TSD, Albuquerque-Bernalillo’s PSD program is in the SIP (12/21/93 at 58 FR 67330 

and 4/26/07 at 72 FR 20728). The most recent New Mexico SIP revision of its Regional Haze 

program, which addresses the visibility transport requirement and includes AlbuquerqueBernalillo County, was submitted to EPA in August, 2011. 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. 

Based on this analysis, we propose that the Albuquerque-Bernalillo County SIP satisfies the 

requirements of section 110(a)(2)(J) for the 2010 SO2 NAAQS. 

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

provide for performing air quality modeling to predict effects on air quality resulting from 

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

The State’s response: AQP has the authority and the technical capability to conduct air quality 

modeling in order to assess the effect on ambient air quality of relevant pollutant emissions; and 

can provide relevant data as part of the permitting and NAAQS implementation process. AQP 

follows EPA guidelines for air dispersion modeling. 

 

7 Section 110(a)(2)(J) is divided into three segments: consultation with government officials; public notification; and 

PSD and visibility protection. 
Page 14 of 16

EPA analysis: The AQCA charges the ACQB and the AQP with preparing and implementing 

the SIP, which includes air quality modeling and the submission of such data to the EPA. The 

Federal Register notice provides additional relevant details. We therefore propose that the 

Albuquerque-Bernalillo County SIP satisfies the requirements of section 110(a)(2)(K) for the 

2010 SO2 NAAQS. 

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

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

permit. 

The State's response: The fee requirements of 20.11.2 NMAC, Fees were approved by EPA as 

meeting the CAA requirements and were incorporated into the New Mexico SIP [Bernalillo 

County 4/10/80, 45 FR 24468]. Albuquerque-Bernalillo County’s Title V operating program 

codified at 20.11.42 NMAC, Operating Permits was approved by EPA on 9/8/04 [FR Vol.69, 

No. 173, pp. 4244-47, effective 11/8/04]. 

 

EPA analysis: The AQP has authority to collect fees for Title V8 and non-Title V permit 

applications, revisions, renewals and inspections pursuant to the AQCA, 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 

AQC 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). The May 24, 2011, 

submitted revision that we have proposed to approve addresses fees for reviewing and acting on 

specific permit applications received by the AQP, 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 2010 SO2 NAAQS. 

13. Consultation/participation by affected local entities: Section 110(a)(2)(M) requires states 

to provide for consultation and participation in SIP development by local political subdivisions 

affected by the SIP. 

The State’s response: New Mexico Statute § 74-2-5.2 "State air pollution control agency; 

specific duties and powers of the department," requires advising; consulting; contracting with 

and cooperating with local authorities, other states, the federal government and other interested 

 

8

 Albuquerque/Bernalillo County has a 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. 
Page 15 of 16

persons or groups in regard to matters of common interest in the field of air quality control; and 

initiation of cooperative action between a local authority and the department, between one local 

authority and another or among any combination of local authorities and the department for 

control of air pollution in areas having related air pollution problems that overlap the boundaries 

of political subdivisions; and entering into agreements and compacts with adjoining states and 

Indian tribes, where appropriate. The State's public participation requirements and procedures 

fulfill the requirements for consultation with local political subdivisions affected by the SIP. 

EPA analysis: New Mexico is divided in to two air authorities, Albuquerque-Bernalillo County 

and the 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 

AQP, 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 AQP 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 (April 22, 2010 at 75 FR 20922). 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 2010 SO2 NAAQS. 

 

IV. EPA’s Recommendation

We reviewed New Mexico’s submittal on behalf of Albuquerque-Bernalillo County and 

recent air quality data for sulfur dioxide for compliance with the requirements of sections 

110(a)(1) and (2) of the Act for the 2010 SO2 NAAQS. Based on this evaluation, we recommend 

that EPA propose to approve the submittal provided by the State of New Mexico on behalf of 

Albuquerque-Bernalillo County to demonstrate that the New Mexico SIP meets the applicable 

requirements of sections 110(a)(1) and (2) of the Act with respect to the 2010 SO2 standard. The 

submittal adequately addresses the infrastructure elements specified in the CAA section 

110(a)(2) that are necessary to implement, maintain, and enforce the 2010 SO2 NAAQS. 

We recommend approval of the New Mexico Albuquerque-Bernalillo County infrastructure 

SIP for the 2010 SO2 NAAQS for the following elements: 

Emission limits and other control measures: Section 110(a)(2)(A) 

Ambient air quality monitoring/data system: Section 110(a)(2)(B) 

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

Interstate transport: Section 110(a)(2)(D)(i)(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) 
Page 16 of 16

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

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

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

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

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

V. References 

1. Guidance on Infrastructure State Implementation Plan (SIP) Elements Required Under 

Sections 110(a)(1) and 110(a)(2) for the 2010 Sulfur Dioxide (SO2) National Ambient Air 

Quality Standards (NAAQS), Memorandum from Stephen D. Page, Director, Air Quality Policy 

Division, OAQPS, to Regional Air Division Directors. 

http://www.epa.gov/air/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Mult

ipollutant_FINAL_Sept_2013.pdf