New Mexico State Implementation Plan Elements (Albuquerque-Bernalillo County) Required Under Section 110(a)(2) for the 2010 Sulfur Dioxide (SO 2 ) National Ambient Air Qu ality 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 SO 2 NAAQS, the State’s submittals and EPA’s analysis

IV. Recommendations

V. References

I. Introduction

In this technical support document (TSD), EPA is providing addi tional documentation concerning our evaluation of the submittal prov ided 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 (SO 2 ). More detail on these standards, section 110(a)(1 ) and (2) of the Act, and the submittal we are reviewing to determine if th e 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 additiona l background material on the NAAQS, State Implementation Plans (SIPs), and related issues. Section III of this TSD provides a descripti on of each element required under section 110(a)(2) of the Act, the State’s response, and ad ditional details of our an alysis of the State’s response that are not included in the Federal Register notice for this propo sed action. Copies of the State’s submittal are in the docket for this rulemaking.

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

reviewed herein.

Section V of the TSD contains a list of th e guidance documents cited herein. Copies of the guidance documents referenced ar e 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 y ears following the promulgation of the NAAQS, or within such shorter period as EPA may prescr ibe. Section 110(a)(2) lists the specific infrastructure elementsPage 2 of 16 that must be incorporated into the SIPs, incl uding for example, requirements for air pollution control measures, which are designed to assure attainment and main tenance 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. Th e schedule for completion of EPA’ s periodic review of both SO 2 NAAQS was established in Section 109 (d)(1) of the CAA, which re quires that “not later than December 31, 1980, and at 5-year interval thereafte r, the EPA shall complete a thorough review of the criteria published under se ction 108 and the national ambien t 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 SO 2 NAAQS, states typically have met many of the basic program elements required in section 110(a)(2) th rough 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 SO 2 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 NAAQS 1

. On June 11, 2015, the Secretary of the New Mexico Environment Department (NMED) submitted a letter certifying that the Air Qu ality 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 eval uated the New Mexico SIP and found that the Albuquerque-Bernalillo County porti on of the SIP satisfies all the requirements of section 110(a)(1) and (2) for the 2010 SO 2 NAAQS. The June 11, 2015 submittal includes a table with an explanation of how the current New Mexi co SIP for Albuquerque-Bernalillo County meets the requirements of each applicable el ement of section 110(a)(2) for the 2010 SO 2 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 es tablish NAAQS for pollutants that “may reasonably be anticipated to endanger public heal th and welfare,” and to develop a primary and secondary standard for each NAAQS. The primary st andard is designed to protect human health with an adequate margin of safety, and the sec ondary standard is design ed 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, ni trogen dioxide, ozone, particulate matter, and sulfur dioxide. These sta ndards 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 re sidents 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 se t of state statutes, ai r pollution regulations, control strategies, other means or techniques, an d technical analyses developed by the state, to ensure that the state meets the NAAQS. The SIP is required by section 1 10 and other provisions of the Act. These SIPs can be extensive, c ontaining state regulations or other enforceable documents and supporting information such as em issions inventories, monitoring networks, and modeling demonstrations. Each state must submit these regulations and cont rol strategies to EPA for approval and incorporation into the federall y enforceable SIP. Each federally approved SIP protects air quality primarily by addressi ng 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 in tegral 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 provisi ons 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 re quiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); (iii) existing pr ovisions for minor source NSR programs that may be inconsistent with the requ irements 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 requireme nts 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 author ity to address any such existing SIP defects in other rulemakings, as appropriate. A detailed rationale for why thes e four substantive issues are not part of the scope of infrastructure SI P rulemakings can be found in EPA’s July 13, 2011, final rule entitled, “Infrastructure SIP Requirements for the 1997 8-hour Ozone and PM 2.5 National Ambient Air Quality Standards” in the sect ion entitled, “What is the scope of this final rulemaking?” (see 76 FR 41075 at 41076-41079).

III. SIP elements required under Sectio n 110(a)(2) for the 2010 Sulfur Dioxide (SO 2 ) NAAQS, the State’s submitta ls 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 stat e, 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, Subpa rt GG, sections 1620 to 1640. Th e Identification of plan for the Albuquerque-Bernalillo County is in section 1620; this constitute s 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 th at a SIP must contain in order to be fully approved. 2 In the following sections of this docum ent 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 SI P (Albuquerque-Bernalillo County) submittal for

the 2010 SO 2 NAAQS. Where it is useful, we include tabl es 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 Q uality Control Board (Air Board)

, listed in 40 CFR Part 52 Subpart GG, and source-s pecific provisions codified at 40 CFR Part 52 Subpart GG. The State also asserted that the regulations auth orized 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 wh ere these provisions re late 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 ai r permitting program for both major and minor sources, which ensures that all applicable require ments are included in the source’s permit. The AQP has determined that no reductions in SO 2 emissions are required for maintenance of the

2010 SO 2 NAAQS.

Furthermore, the State asserts that, purs uant 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 affirma tive 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 SI Ps to contain certain nont raditional techniques for reducing pollution – economic incen tives, 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-Ber nalillo 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 De partment’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, SO 2

.

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

Relevant Section of New Mexico’s SIP EPA Approval/ Federal Register 4
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 Register 4

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 Decem ber 30, 2004 at 69 FR 78314 20.11.40 NMAC – Source Registration D ecember 30, 2004 at 69 FR 78314 20.11.41 NMAC – Authority to Construc t December 30, 2004 at 69 FR 78314 20.11.43 NMAC – Stack Height Requirement s 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 Com pounds 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 Fe bruary 11, 2010 at 75 FR 6813

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

Name of SIP Provision EPA Approval/ Federal Register 5

Infrastructure and Interstate Tran sport 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 pr oposing that the Albuquerque-Ber nalillo County SIP meets the requirements of section 110(a)(2)(A) for the 2010 SO 2 NAAQS.

2. Ambient air quality monitori ng 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 designati on for Bernalillo County of attainment or nonattainment, ambient air quality data repor ted in the 2014 Annual Air Monitoring Network Plan (AAMNP) showed SO 2 levels less than 10% of the 2010 SO 2 NAAQS. The EPA-approved 2014 AAMNP describes ongoing ac tivities for monitoring SO 2 . These activities comply with EPA requirements for State and Local Air Moni toring Stations (SLAMS ) network and National

Core Multi-Pollutant Monitori ng Stations (NCore) network.

AQP determined in 2011 that it was not required to install ne w monitors under the revised SO 2 NAAQS. 6 However, in an effort unrelated to the revised SO 2 NAAQS, AQP began SO 2 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 av ailable in the docket for this rulemaking. As indicated in these documents, the 2010 SO 2 NAAQS, EPA regulations require that ambient SO 2 monitors are based on population per Core-bas ed Statistical Area (CBSA) and amount of SO 2 emissions within that CBSA, that is, the Popul ation Weighed Emissions Index (PWEI) and based

on individual state cont ribution to national SO 2 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 pr oposing that the Albuquerque-Ber nalillo County SIP meets the requirements of section 110(a)(2)(B) for the 2010 SO 2 NAAQS.

3. Program for enforcement of control measures : Section 110(a)(2)(C) requires states to include a program providing for enforcement of th e measures described in subparagraph (A), and the regulation of the modification and constructio n of any stationary sources within the areas covered by the SIP as necessary to assure th at the NAAQS are achieved, including a permit program as required in parts C and D.

The State's response: AQP has established re gulations governing the en forcement of control measures, including attainment plans and perm itting 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 EP A’s tailoring rule. See 20.11.61.7.CCC NMAC

EPA analysis: EPA has found the New Mexico SI P provisions set forth he rein 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 co mpliance 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 pena lty, are provided in 20.11.90 NMAC (February 4, 2010 at 75 FR 5698). The rules in 20.11 NMAC addr ess 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 schedul es, monitoring and testing requirements, and reporting and recordkeeping requirements. Thes e 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 ha s 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 permitti ng provisions, and provide for

assessment of administrative enforcement actions a nd administrative penalties for violations of those permit terms and conditions, and injunctiv e relief (Bernalillo County Ordinance 94-5, Sections 9-18). The Albuquerque-Bernalillo C ounty 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 ma ke 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 Albu querque-Bernalillo County’s Infrastructure SIP

for the 2010 SO 2 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 Count y existing minor NSR SIP program itself to the extent that it may be inconsistent with EPA’ s regulations governing th is program. EPA believes that a number of states may have minor NSR pr ovisions that are contra ry 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 fo r the program. The statutory requirements of section 110(a)(2)(C) provide for considerable fl exibility in designing minor NSR programs, and EPA believes it may be time to revisit the regulat ory requirements for this program in order to give the states an appropriate leve l 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 pr oposing that the Albuquerque-Ber nalillo County SIP meets the requirements of section 110(a)(2)(C) for the 2010 SO 2 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 provisi ons prohibiting any sour ce or other type of emissions activity in one state from contributing significantly to nonattainm ent 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 vi sibility in another state. Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensu ring compliance with sections 115 and 126 of the Act, relating to in terstate and internati onal pollution abatement.

The State's response: Albuquerque-Bernalillo County has sufficient co ntrols measures in place to ensure that sources emitting SO 2 do not interfere with another st ate’s maintenance of the 2010 SO 2 NAAQSPage 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 s ources in Albuquerque-Bernalillo County

. Albuquerque-Bernalillo County has only two major SO 2 sources. One is the Albuquerque

Southside Water Reclamation Plant. The othe r is the Tijeras Plant, a cement production facility.

2. The minimum amount of emi ssions 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 averag ed 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 Al buquerque-Bernalillo County that contributes significantly to nonattainment in, or interference with, maintenance by another stat e, 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 SO 2 emissions do not preclude New Mexico from ensuring complia nce with CAA Sections 126 and 115. We are therefore proposing that the Albuquerque-Berna lillo County SIP meets the requirements of section 110(a)(2)(D) for the 2010 SO 2 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 complian ce with state board comp osition 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 th e state relies upon local or regional government agencies.

The State’s response:

New Mexico statute 74-2-5 “Du ties and powers: environmental improvement board; local board” gives the Air Board authority to deve lop, implement and enforce the SIP.

74-2-5 provides the Air Board adequate lega l 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 ma intenance of national

standards.

74-2-5 also provides the Air Bo ard 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 au thority 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 SO 2 requirements.Page 9 of 16 Section 74-1-4 provides that th e Air Board contain a majority of members who represent the public interest and do not derive any significant portion of their in come from persons subject to or who appear before the board on issues relate d 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-B ernalillo County AQCB is the fe derally delegated air quality authority for Albuquerque and Bernalillo C ounty, New Mexico. The AQCA (section 74-2-4) authorizes Albuquerque-Bernalillo County to lo cally 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-B ernalillo County, the AQCB is authorized to adopt, promulgate, publish, amend and repeal regulations consistent with the AQCA, and to maintain national ambient air quality standard s and prevent or abate air pollution, including regulations prescribing air sta ndards, within Albuquerque-Berna lillo 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 AQ CB. The AQP is authorized to administer and enforce the provisions of the AQCA within the boundary of Albuquerq ue-Bernalillo County.

Submittals state that budgets are approved annua lly by the Albuquerque City Council, and that the annual budgeting process provid es a periodic update that enab les 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 ru les, 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 ordi nance are then deposited into a fund created by section 74-2-16 of the AQCA, which must be used by the municipa lity or county only for the purpose of paying the reasonable costs of, among other things, re viewing and acting on permit applications, implementing and enforcing rules of the perm it, air monitoring, air modeling, preparing guidance, and preparing emission inventories. AQP does not anticipate the need for additional resources to implement the new SO 2 standard.

The AQP receives federal funds on an annual basi s, under sections 103 and 105 of the Act, to support its air quality programs. The AQP has author ity to collect fees for Title V and non-Title V permit applications, revisions, renewals and in spections pursuant to New Mexico AQCA, New Mexico Statutes Annotated (N MSA) 1978 Sections 74-2-4, 74-2-5 and 74-2-7, the Bernalillo County Ordinance 94-5 Sections 3, 4 and 7, a nd the revised ordinanc es 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 s ection 128. Section 128 requires: 1) that the majority of members of the state body wh ich approves permits or enforcement orders doPage 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 po tential conflicts of interest by such body beadequately disclosed. On June 1,1999, the EPA approved into the SIP the AlbuquerqueBernalillo County Ordinances and provisions of th e 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 compositi on and conflict of in terest disclosure requirements submitted by both the State of New Mexico and by Albuquerque-Bernalillo County. These include public intere st requirements and safeguards against conflict of interest and are codified in the City of Albuquerque Or dinances, 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-B ernalillo County SIP in a June 1, 1999 rulemaking (64 FR 29235). Albuque rque-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 pur poses of the infrastructure SIP discussion, we

will cite to the current ordinance. The Joint Ai r Quality Control Board Ordinance 94-5 is also cited as legal authority in General Pr ovisions 20.11.1.3 NMAC, which is SIP-approved.

EPA is proposing to find that the Albuquerque-B ernalillo County SIP meets the requirements of section 110(a)(2)(E) of the Act for the 2010 SO 2 NAAQS.

6. Stationary source emissions monitoring and reporting : Section 110(a)(2 )(F) requires, as may be prescribed by the Administrator, (i) th e installation, maintenance and replacement of equipment, and the implementation of other necessary steps, by owners or ope rators of stationary

sources to monitor emissions from such source s, (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 sa mpling 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 prescr ibed by the regulation.

20.11.90 NMAC, Source Surveillance; Administration and Enforcement, establishes the general requirements for maintaining records and reportin g emissions, including record keeping, data submissions and public access to emissions data.

EPA analysis: The AQCA provides Albuquerque-Ber nalillo County with au thority to require monitoring and recordkeeping and to require th e 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 sec tion 110(a)(2)(F):

Regulation 20.11.1 NMAC General ProvisionsPage 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 S ource 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 usef ul 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 requi rements of Section 110(a)(2)(F) for the 2010

SO 2 NAAQS.

7. Emergency power : Section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial enda ngerment to public healt h, including adequate contingency plans to implement the emerge ncy episode provisions in their SIPs.

The State's response: Pursuant to 40 CFR 51, Subpart H, Preven tion 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 pollutant s 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 cau sing or contributing to SO 2 emissions that present an imminent and substantial endangerment to public health or welfare, or the envi ronment. The Air Board adopted

into its SIP the Air Pollution Episode Contingenc y 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 oc currence of an emergency due to the effects of the pollutants on the health of persons.

EPA is proposing to find that the Albuquerque-B ernalillo County SIP meets the requirements of Section 110(a)(2)(G) for the 2010 SO 2 NAAQS.

8. Future SIP revisions : Section 110(a)(2 )(H) requires states to have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining NAAQS, or in response to an EPA finding th at 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 ma intain 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 exis ting regulations to meet th e NAAQS. NMSA 1978 Section 74-7-5 gives the board authority to a dopt regulations to abate, co ntrol and prohibit air pollution throughout Albuquerque-Bernalillo C ounty in accordance with provisi ons of the State Rules Act [Chapter 14, Article 4, NMSA 1978]. Nothing in Ne w Mexico’s statutory or regulatory authority prohibits Albuquerque-Bernalillo County from revisi ng 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 Count y SIP meets the requirements of section 110(a)(2)(H) for the 2010 SO 2 NAAQS.

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

The State's response: Compliance with the SO 2 standard will be eval uated using Air Monitoring FRM Quality Assurance SO 2 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 previ ously, EPA does not expect infras tructure SIP submissions to address subsection 110(a)(2)(I). Nonattainment ar ea plans required under Pa rt D are required to

be submitted on a different schedule from the Section 110 infrastructure elements and will be reviewed and acted upon th rough a separate process.

10. Consultation, public notice, and PSD and visibility protection : Section 110(a)(2)(J) is divided into three components: consultation w ith 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 fo r consultation with local governments and Federal Land Managers (F LMs) carrying out NAAQS implementation requirements pursuant to secti on 121 relating to consultation. Section 110(a)(2)(J) further requires states to notify the pub lic 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 under go public notice and hearin g, which provides for opportunities to comment by the public, includi ng local political subdivisions. 20.11.82 NMAC, Rulemaking Procedures – Air Qu ality Control Board, stipulates notice requirements for rule making and is used as a guide for no tice 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 retrieve d 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 par ticipate in regulatory and planning efforts.

The Air Board has adopted 20.11.61 NMAC- Preven tion of Significant De terioration following the requirements outlined in 40 CFR 52 under se ction 161 of the CAA [42 U.S.C.A. §7471] for prevention of significant deteriora tion. These provisions were a pproved by EPA as part of the SIP, effective 5/29/07 [40 CFR 52.1634].Page 13 of 16 EPA analysis: Consultation with government offi cials, 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, cons ult, contract and cooperate with municipalities, counties, other states, the federal government and other interested persons or gr oups in regards to matters of common interest in the field of air quality c ontrol. County Ordinanc e 94-5 “establishes powers and duties of the Board for providing for the adoption, administration and enforcement of the regulations; providing fo r variances; providing for permits; providing for special regulations consistent with Federal and State requirements for prevention of signi ficant deterioration, new source performance standards, national emissi ons standards for hazar dous air pollutants and providing for operating permits and fees as re quired by the 1990 Amendm ents 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 se ction 121 of the CAA that requires that states provide a satisfactory process of consulta tion with general purpos e local governments. 7

Public notification if NAAQS are exceed ed, 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 protec tion, section 110(a)(2)(J) : This portion of section 110(a)(2)(J) in part requires that a state’s SIP meet the applicable re quirements of section 110(a)(2)(C) as relating to PSD programs. As discussed prev iously 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 Ne w Mexico SIP revision of its Regional Haze program, which addresses the visibility tran sport requirement and includes AlbuquerqueBernalillo County, was submitted to EPA in A ugust, 2011. With regard to the applicable requirements for visibility protec tion, 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 esta blishment of a new NAAQS, howeve r, the visibili ty and regional haze program requirements under part C do not ch ange. Thus, we find that there is no new visibility obligation “trigg ered” under section 110(a)(2)(J) when a new NAAQS becomes

effective.

Based on this analysis, we propose that the Al buquerque-Bernalillo County SIP satisfies the requirements of section 1 10(a)(2)(J) for the 2010 SO 2 NAAQS.

11. Air quality modeling a nd 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 subm ission of such data to EPA upon request.

The State’s response: AQP has the authority a nd the technical capability to conduct air quality modeling in order to assess the e ffect on ambient air quality of re levant 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 an d 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 deta ils. We therefore propose that the Albuquerque-Bernalillo County SIP satisfies the requirements of section 110(a)(2)(K) for the

2010 SO 2 NAAQS.

12. Permitting fees : Section 110(a)(2)(L) requ ires SIPs to require each major stationary source to pay permitting fees to cover the cost of re viewing, 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 incorpor ated into the New Mexico SIP [Bernalillo County 4/10/80, 45 FR 24468]. Albuquerque-Berna lillo 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 V 8 and non-Title V permit applications, revisions, renewals and inspecti ons 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 or dinances of Albuquerque 1994, Section 9-5-1-3,

Section 9-5-1-4 and Section 9-5-1-7. For ex ample, 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-approve d regulation that addresses permit fees, AQCB AQC Regulation Section 21 – Pe rmit 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 NM AC. It was submitted as a SIP revision on May 24, 2011. We have proposed to approve the re visions that repeal a nd replace the existing

SIP rule but have not finalized our acti on (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, f ees to partially offset the administrative costs of permit-related administrative he arings; funding for small business stationary sources; and fees to cover administrative expenses. The commen t period on the proposal closed on December 5,

2011. No comments were received.

EPA is proposing to find that the Albuquerque-B ernalillo County SIP meets the requirements of section 110(a)(2)(L) for the 2010 SO 2 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 po llution control agency; specific duties and powers of the department," requires advising; consulting; contracting with and cooperating with local authorities, other stat es, the federal government and other interested

8 Albuquerque/Bernalillo County has a federally-approv ed 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 be tween 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 agre ements and compacts with adjoining states and Indian tribes, where a ppropriate. The State's public particip ation requirements and procedures fulfill the requirements for consultation with loca l political subdivisions affected by the SIP.

EPA analysis: New Mexico is divided in to two air authorities, Albuque rque-Bernalillo County and the State of New Mexico covering the remaini ng counties. Each author ity is responsible for controlling air pollution emitted by stationary so urces within its respective jurisdiction. The AQP, consistent with regulations adopted by the AQC B, consults with and provides liaison to the New Mexico Environment Department’s Air Qual ity Bureau and provides frequent and regular

communication and consultation w ith their management and sta ff. 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 ot her 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 pub lic when plans or rules are proposed to be adopted by the AQCB for inclusion into the SIP. Consultation a nd public involvement are also required by 20.11.3 NMAC, Transportation Conf ormity (April 22, 2010 at 75 FR 20922). For example, Subsection (F) P ublic Consultation Procedur es of 20.11.3.105 NMAC, requires “affected agencies making conformity determin ations on transportation plans, programs and projects shall establish a pro active public involvement proce ss that provides opportunity for public review and comments...” EPA is proposing to find that the Albuquerque-B ernalillo County SIP meets the requirements of section 110(a)(2)(M) for the 2010 SO 2 NAAQS.

IV. EPA’s Recommendation

We reviewed New Mexico’s submittal on be half of Albuquerque-B ernalillo County and recent air quality data for sulfur dioxide for compliance with the requirements of sections 110(a)(1) and (2) of th e Act for the 2010 SO 2 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 SO 2 standard. The submittal adequately addresses the infrastructu re elements specified in the CAA section 110(a)(2) that are necessary to implement, maintain, and enforce the 2010 SO 2 NAAQS.

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

SIP for the 2010 SO 2 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 offi cials: Section 110(a)(2)(J)Page 16 of 16 Public notification: Section 110(a)(2)(J) PSD and visibility protectio n: Section 110(a)(2)(J) Air quality and modeling/data : Section 110(a)(2)(K) Permitting fees: Section 110(a)(2)(L) Consultation/particip ation by affected local enti ties: Secti on 110(a)(2)(M)

V. References

1. Guidance on Infrastructure State Implem entation Plan (SIP) Elements Required Under Sections 110(a)(1) a nd 110(a)(2) for the 2010 Sulfur Dioxide (SO 2 ) National Ambient Air Quality Standards (NAAQS), Memorandum from Ste phen D. Page, Director, Air Quality Policy Division, OAQPS, to Regiona l Air Division Directors. http://www.epa.gov/air/urbanair/s ipstatus/docs/Guidance_on_Infra structure_SIP_Elements_Mult ipollutant_FINAL_Sept_2013.pdf