[Federal Register Volume 80, Number 58 (Thursday, March 26, 2015)]
[Proposed Rules]
[Pages 15963-15972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-06932]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2014-0270; FRL-9925-12-Region 6]


Approval and Promulgation of Air Quality Implementation Plans; 
State of New Mexico; Infrastructure SIP Requirements for the 2008 Ozone 
and 2010 Nitrogen Dioxide National Ambient Air Quality Standards; 
Interstate Transport of Fine Particulate Matter Air Pollution Affecting 
Visibility

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of a State Implementation Plan (SIP) submission from 
the State of New Mexico addressing the applicable requirements of Clean 
Air Act (CAA) section 110 for the 2008 National Ambient Air Quality 
Standards (NAAQS) for Ozone (O<INF>3</INF>) and the 2010 NAAQS for 
Nitrogen Dioxide (NO<INF>2</INF>), both of which require that each 
state adopt and submit a SIP to support implementation, maintenance, 
and enforcement of each new or revised NAAQS promulgated by EPA. These 
SIPs are commonly referred to as ``infrastructure'' SIPs. The 
infrastructure requirements are designed to ensure that the structural 
components of each state's air quality management program are adequate 
to meet the state's responsibilities under the CAA. EPA is also 
proposing to find that the State of New Mexico meets the 2006 fine 
particulate matter (PM<INF>2.5</INF>) NAAQS requirement pertaining to 
interstate transport of air pollution and visibility protection.

DATES: Written comments must be received on or before April 27, 2015.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R06-OAR-2014-0270, by one of the following methods:
    <bullet> www.regulations.gov. Follow the online instructions.

[[Page 15964]]

    <bullet> Email: Ms. Sherry Fuerst at <a href="/cdn-cgi/l/email-protection#b8decdddcacbcc96cbd0ddcacac1f8ddc8d996dfd7ce"><span class="__cf_email__" data-cfemail="95f3e0f0e7e6e1bbe6fdf0e7e7ecd5f0e5f4bbf2fae3">[email protected]</span></a>.
    <bullet> Mail or delivery: Mr. Guy Donaldson, Chief, Air Planning 
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 1200, Dallas, Texas 75202-2733. Deliveries are accepted only 
between the hours of 8 a.m. and 4 p.m. weekdays, and not on legal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2014-0270. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Ms. Sherry Fuerst, (214) 665-6454, 
<a href="/cdn-cgi/l/email-protection#ed8b98889f9e99c39e85889f9f94ad889d8cc38a829b"><span class="__cf_email__" data-cfemail="6d0b18081f1e19431e05081f1f142d081d0c430a021b">[email protected]</span></a>. To inspect the hard copy materials, please 
schedule an appointment with Ms. Fuerst or Mr. Bill Deese at (214) 665-
7253.

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we'', 
``us'', or ``our'' is used, we mean EPA.

Table of Contents

I. Background
II. Applicable Elements of Sections 110(a)(1) and (2) Related to the 
2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS
III. EPA's Evaluation of New Mexico's 2008 O<INF>3</INF> and 2010 
NO<INF>2</INF> NAAQS Infrastructure Submissions
IV. EPA's Evaluation of Interstate Transport of Air Pollution and 
Visibility Protection for the 2006 PM<INF>2.5</INF> NAAQS in New 
Mexico's SIP
V. Proposed Action
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews

I. Background

    EPA is proposing action on two SIP submissions from New Mexico that 
address the infrastructure requirements of CAA sections 110(a)(1) and 
(a)(2). The first action was submitted on August 27, 2013 for the 2008 
O<INF>3</INF> NAAQS and the second was submitted on March 12, 2014, for 
the 2010 NO<INF>2</INF> NAAQS. Pursuant to section 110(a)(1), states 
must make SIP submissions ``within 3 years (or such shorter period as 
the Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. Section 110(a)(2) 
includes a list of specific elements that ``[e]ach such plan'' 
submission must address. EPA has historically referred to these SIP 
submissions made for the purpose of satisfying the requirements of CAA 
sections 110(a)(1) and (a)(2) as ``infrastructure SIP'' submissions.
    One of the SIP requirements for new or revised NAAQS is to provide 
adequate provisions prohibiting emissions which interfere with required 
measures in any other State to protect visibility (CAA 
110(a)(2)(D)(i)(II)). In a June 12, 2009 SIP submittal, New Mexico 
stated that they had satisfied the SIP requirements of CAA 110(a) for 
the PM<INF>2.5</INF> NAAQS promulgated in 2006. The other portions of 
the June 12, 2009 SIP submittal were previously approved (January 22, 
2013, 78 FR 4337, July 9, 2013, 78 FR 40966). No action was taken on 
the portion pertaining to CAA 110(a)(2)(D)(i)(II) and visibility 
protection. We received additional SIP submittals concerning visibility 
protection on September 17, 2007, July 5, 2011, and November 5, 2013. 
On November 27, 2012, we approved the New Mexico Regional Haze SIP 
except for the Best Available Retrofit Technology (BART) determination 
for the San Juan Generating Station (SJGS) (77 FR 70693). On October 9, 
2014, we approved a revision to the New Mexico Regional Haze SIP that 
addressed BART for SJGS, making the emission limitations federally 
enforceable on SJGS through our SIP approval action, and therefore 
because of the federally enforceable provisions for SJGS, we also were 
able to find that the New Mexico SIP satisfies the requirements of CAA 
110(a)(2)(D)(i)(II) with respect to interstate transport of air 
pollution and visibility protection for the 8-hour ozone and 
PM<INF>2.5</INF> NAAQS (79 FR 60985) (the New Mexico Visibility 
Transport SIP). Even though the State's 2011 and 2013 submittals were 
not limited to the 1997 PM<INF>2.5</INF> NAAQS for a Visibility SIP, we 
overlooked the opportunity to clearly address the 110(a)(2)(D)(i)(II) 
requirement for visibility protection in connection with the 
PM<INF>2.5</INF> NAAQS promulgated in 2006 (the 2006 PM<INF>2.5</INF> 
NAAQS). We therefore are proposing to find that the November 27, 2012 
and October 9, 2014 final SIP actions pertaining to the interstate 
transport requirement for visibility protection meet the requirement 
for the 2006 PM<INF>2.5</INF> NAAQS.
    Additional information about EPA's review of the information New 
Mexico presented in these SIP submittals, how EPA reviews 
infrastructure SIPs and effects of recent Supreme Court decisions on 
these infrastructure SIPs can be found in the Technical Support 
Document, including Appendices A and B.

II. Applicable Elements of Sections 110(a)(1) and (2) Related to the 
2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS

    On March 27, 2008, EPA revised the primary and secondary 
O<INF>3</INF> NAAQS (hereafter the 2008 O<INF>3</INF> NAAQS).\1\ The 
level of the primary (health-based) standard was revised to 0.075 parts 
per million (ppm) based on a 3-year average of the fourth-highest 
maximum 8-hour average concentration. EPA revised the secondary 
standard for O3 making it identical to the revised primary standard. 
EPA also made a conforming change to the Air Quality Index (AQI) for 
O<INF>3</INF>, setting an AQI value of 100 equal

[[Page 15965]]

to 0.075 ppm, 8-hour average, and making proportional changes to the 
AQI values of 50, 150 and 200 measured as O<INF>3</INF> and not to be 
exceeded with an averaging time of a rolling 3-month period. (73 FR 
16436).\2\
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    \1\ The previous O<INF>3</INF> NAAQS were issued in 1997. They 
established a primary standard of 0.08 ppm not to be exceeded as 
determined by the 3-year average of the annual fourth-highest daily 
maximum 8-hour concentrations (62 FR 38856, July 18, 1997).
    \2\ Although the effective date of the Federal Register notice 
for the final rule was May 27, 2008, the rule was signed by the 
Administrator and publicly disseminated on March 27, 2008. 
Therefore, the deadline for submittal of infrastructure SIPs for the 
2008 O<INF>3</INF> NAAQS was March 27, 2011.
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    On February 9, 2010, based on its review of the air quality 
criteria for oxides of nitrogen and the primary national ambient air 
quality standard (hereafter the 2010 NO<INF>2</INF> NAAQS) \3\ for 
oxides of nitrogen as measured by nitrogen dioxide (NO<INF>2</INF>), 
EPA made revisions to the primary NO<INF>2</INF> NAAQS in order to 
provide requisite protection of public health. Specifically, EPA 
established a new 1-hour standard at a level of 100 ppb, based on the 
3-year average of the 98th percentile of the yearly distribution of 1-
hour daily maximum concentrations, to supplement the existing annual 
standard. EPA also established requirements for an NO<INF>2</INF> 
monitoring network that includes monitors at locations where maximum 
NO<INF>2</INF> concentrations are expected to occur, including within 
50 meters of major roadways, as well as monitors sited to measure the 
area-wide NO<INF>2</INF> concentrations that occur more broadly across 
communities. (75 FR 6474).\4\
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    \3\ The previous NO<INF>2</INF> NAAQS was issued in 1996. It 
established a primary and secondary standards of for nitrogen 
dioxide (NO<INF>2</INF>) as 0.053 parts per million (ppm) (100 
micrograms per meter cubed (g/m\3\)) annual arithmetic average. (61 
FR 52852, October 8, 1996).
    \4\ Although the effective date of the Federal Register notice 
for the final rule was April 12, 2010, the rule was signed by the 
Administrator and publicly disseminated on February 9, 2010. 
Therefore, the deadline for submittal of infrastructure SIPs for the 
2008 NO<INF>2</INF> NAAQS was February 9, 2013.
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    For both the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS, 
states have to review and revise, as appropriate, their existing SIPs 
to ensure that they are adequate. EPA issued guidance on September 13, 
2013, addressing the infrastructure SIP elements required under 
sections 110(a)(1) and (2) for most the NAAQS.\5\ EPA addresses these 
elements below in Section III.
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    \5\ ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' 
Memorandum from Stephen D. Page, September 13, 2013.
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III. EPA's Evaluation of New Mexico's 2008 O<INF>3</INF> and 2010 
NO<INF>2</INF> NAAQS Infrastructure Submissions

    On August 27, 2013 and March 12, 2014, the state of New Mexico sent 
a letter signed by the Cabinet Secretary of the New Mexico 
Environmental Department to EPA demonstrating how the existing New 
Mexico SIP met all the requirements for the 2008 O<INF>3</INF> NAAQS 
and the 2010 NO<INF>2</INF> NAAQS, respectively. Public notice and 
public hearings were provided by the State of New Mexico when 
developing these SIP submissions. These SIP submissions became complete 
by operation of law on February 27, 2014 and September 12, 2014, 
respectively. See CAA section 110(k)(1)(B).
    EPA has an established procedure for reviewing infrastructure SIPs. 
A discussion of the CAA requirements and EPA's approach for reviewing 
infrastructure SIPs is outlined in Appendix A of the O<INF>3</INF> and 
NO<INF>2</INF> Technical Support Document.
    (A) Emission limits and other control measures: The CAA Section 
110(a)(2)(A) requires SIPs to include enforceable emission limits and 
other control measures, means or techniques, schedules for compliance 
and other related matters as needed to implement, maintain and enforce 
each of the NAAQS.\6\
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    \6\ The specific nonattainment area plan requirements of section 
110(a)(2)(I) are subject to the timing requirements of section 172, 
not the timing requirement of section 110(a)(1). Thus, section 
110(a)(2)(A) does not require that states submit regulations or 
emissions limits specifically for attaining the 2008 O<INF>3</INF> 
or NO<INF>2</INF> NAAQS. Those SIP provisions are due as part of 
each state's attainment plan, and will be addressed separately from 
the requirements of section 110(a)(2)(A). In the context of an 
infrastructure SIP, EPA is not evaluating the existing SIP 
provisions for this purpose. Instead, EPA is only evaluating whether 
the state's SIP has basic structural provisions for the 
implementation of the NAAQS.
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    New Mexico's Environmental Improvement Act and Air Quality Control 
Act authorize the New Mexico Environment Department (NMED) to regulate 
air quality and implement air quality control regulations. 
Specifically, the New Mexico Air Quality Control Act delegates 
authority to the Environmental Improvement Board (EIB) to adopt, 
promulgate, publish, amend and repeal regulations consistent with the 
State's Air Quality Control Act to attain and maintain NAAQS and 
prevent or abate air pollution (NMSA 1978, Section 74-2-5(B)). The Air 
Quality Control Act also designates the NMED as the State's air 
pollution control agency, and the Environmental Improvement Act 
provides the NMED with enforcement authority. These statutes have been 
approved into the SIP (see 44 FR 21019, April 9, 1979; revised 49 FR 
44101, November 2, 1984; re-codified and approved in 62 FR 50518, 
September 26, 1997).
    NMED's air quality rules and standards are codified at Title 20 
Environmental Protection, Chapter 2 Air Quality (Statewide) of NMAC. 
Numerous parts of the regulations codified into Chapter 2 necessary for 
implementing and enforcing the NAAQS have been adopted into the SIP. 
The approved SIP for New Mexico is documented at 40 CFR 52.1620, 
Subpart GG. The TSD for the action provides additional information on 
specific rules that have been adopted into the SIP.
    Based upon review of the state's infrastructure SIP submissions for 
the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS, and relevant 
statutory and regulatory authorities and provisions referenced in the 
submission or referenced in New Mexico's SIP, EPA believes that the New 
Mexico SIP adequately addresses the requirements of section 
110(a)(2)(A) for the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS 
and is proposing to approve this element of the August 27, 2013 and 
March 12, 2014 SIP submissions.
    (B) Ambient air quality monitoring/data system: The CAA Section 
110(a)(2)(B) requires SIPs to include provisions to provide for 
establishment and operation of ambient air quality monitors, collection 
and analysis of ambient air quality data, and making these data 
available to EPA upon request.
    To address this element, the Air Quality Act at NMSA 1978, section 
74-2-5 provides the enabling authority necessary for the New Mexico EIB 
and NMED to fulfill the requirements of section 110(a)(2)(B). Along 
with their other duties, the NMED collects air monitoring data, 
quality-assures the results, and reports the data.
    Historically, EPA has promulgated regulations in 40 CFR part 58 
(Ambient Air Quality Surveillance), indicating the necessary data 
states need to collect and submit as part of their SIPs. Monitoring 
networks are designed to meet three basic criteria: (a) Provide timely 
results (b) provide results that verify compliance with the NAAQS and 
(c) to support research. For the 2008 O<INF>3</INF> NAAQS, EPA 
regulations require that states and, where appropriate, local agencies 
must operate O<INF>3</INF> monitoring sites for various locations 
depending upon area size (in terms of population and geographic 
characteristics) and typical peak concentrations (expressed in 
percentages below, or near the O<INF>3</INF> NAAQS).\7\ For the 2010 
NO<INF>2</INF> NAAQS, EPA regulations require that state and, where 
appropriate, local agencies must operate a minimum number of required 
NO<INF>2</INF> monitoring sites as described in 40

[[Page 15966]]

CFR part 58 Appendix D 4.3.1. Ambient NO<INF>2</INF> monitoring 
locations are broken down into two types, near-road monitoring stations 
and area wide locations. Both monitoring location types are based on 
population density. As previously stated, these requirements are 
contained in 40 CFR part 58 Appendix D. These requirements were last 
revised on October 17, 2006 as part of a comprehensive review of 
ambient monitoring requirements for all criteria pollutants. (See 71 FR 
61236).
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    \7\ 40 CFR part 58 Appendix D 4.1.
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    The New Mexico statewide air quality surveillance network was 
approved into the New Mexico SIP by EPA on August 6, 1981 (46 FR 
40005). Furthermore, New Mexico's air quality surveillance network 
undergoes recurrent annual review by EPA, as required by 40 CFR 58.10. 
On July 15, 2013, NMED submitted its 2013 Annual Air Monitoring Network 
Plan (AAMNP) that included ambient monitoring for the 2008 
O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS, and EPA approved the 2013 
AAMNP on February 19, 2014.\8\ In addition, NMED conducts a recurrent 
assessment of its monitoring network every five years, which includes 
an evaluation of the need to conduct ambient monitoring for 
O<INF>3</INF> and NO<INF>2</INF>, as required by 40 CFR 58.10(d). The 
most recent of these 5-year monitoring network assessments was 
conducted by NMED and submitted in June 2010, and was subsequently 
approved by EPA.\9\ In evaluating the need to perform ambient 
monitoring for O<INF>3</INF> and NO<INF>2</INF> in its most recent 5-
year monitoring network assessment, NMED concluded that monitors should 
be upgraded to newer models for both O<INF>3</INF> and NO<INF>2</INF>, 
which is part of their continuing routine maintenance. NMED will 
continue to evaluate the ambient monitoring for O<INF>3</INF> and 
NO<INF>2</INF> every five years when it performs its recurrent ambient 
monitoring network assessment.
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    \8\ A copy of the 2013 AAMNP and EPA's approval letter are 
included in the docket for this proposed rulemaking.
    \9\ A copy of the 2010 5-year ambient monitoring network 
assessment and EPA's approval letter are included in the docket for 
this proposed rulemaking.
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    NMED makes ambient monitoring data available for public review on 
its Web site, as well as on national Web sites.\10\ The NMED Web site 
provides the monitor locations and posts past and current 
concentrations of criteria pollutants measured in the State's network 
of monitors.\11\ The NMED monitors that are not certified as meeting 
the federal requirements are identified as ``non-regulatory'' 
monitors.\12\ The State submits air monitoring data to EPA on a 
quarterly basis and certifies the data annually.
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    \10\ See http://www.nmenv.state.nm.us/aqb/monitor/airmonitoringnetwork.html, http://drdasnm1.alink.com/ and http://airnow.gov.
    \11\ See http://air.nmenv.state.nm.us.
    \12\ These include for example, special purpose monitors (SPMs). 
Special purpose monitoring is conducted on a frequent basis for a 
variety of reasons: As a tool to supplement state ambient air 
monitoring networks to obtain information on where to locate 
permanent monitoring stations, to provide additional data in support 
of pollutant formation and transport analyses, or to assess air 
quality in a particular location. These studies vary in duration 
from being temporary sites needed only during a portion of the year 
to long-term air pollution studies over a large area.
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    Based upon review of the state's infrastructure SIP submissions for 
the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS, and relevant 
statutory and regulatory authorities and provisions referenced in the 
submissions or referenced in New Mexico's SIP, EPA believes that these 
New Mexico SIPs meet the requirements of section 110(a)(2)(B) for the 
2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS and is proposing to 
approve these elements of the August 27, 2013 and March 12, 2014, SIP 
submissions.
    (C) Program for enforcement of control measures (PSD, New Source 
Review for nonattainment areas, and construction and modification of 
all stationary sources): The CAA Section 110(a)(2)(C) requires states 
to include the following three elements in the SIP: (1) A program 
providing for enforcement of all SIP measures described in section 
110(a)(2)(A); (2) a program for the regulation of the modification and 
construction of stationary sources as necessary to protect the 
applicable NAAQS (i.e., state-wide permitting of minor sources); and 
(3) a permit program to meet the major source permitting requirements 
of the CAA (for areas designated as attainment or unclassifiable for 
the NAAQS in question).\13\
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    \13\ As discussed in further detail below, this infrastructure 
SIP rulemaking will not address the New Mexico program for 
provisions related to nonattainment areas, since EPA considers 
evaluation of these provisions to be outside the scope of 
infrastructure SIP actions.
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    (1) Enforcement of SIP Measures. The New Mexico statutes provide 
authority for the Environmental Improvement Board and the NMED to 
enforce the requirements of the Air Quality Act, and any regulations, 
permits, or final compliance orders issued under the provisions of the 
Act. General enforcement authority is provided by NMSA 1978, section 
74-1 and NMSA 1978, section 74-2, which addresses general enforcement 
power; investigation and remediation agreements; civil and criminal 
penalties; compliance orders and emergency cease and desist orders; 
civil actions; and a field citation program.
    The Environmental Improvement Act, which has been approved into the 
SIP (49 FR 44101, 64 FR 29255), authorizes the creation of the 
Environmental Improvement Board (NMSA 1978, section 74-1-4); authorizes 
the EIB, the NMED, and its Secretary to file lawsuits, conduct 
investigations and enter into remediation agreements, enforce rules, 
regulations and orders promulgated by the EIB, and collect civil 
penalties (NMSA 1978, section 74-1-6); develop and enforce rules and 
standards related to protection of air quality (NMSA 1978, sections 74-
1-7 and 74-1-8); and issue compliance orders and commence civil actions 
in response to violations (NMSA 1978, section 74-1-10).
    Likewise, the Air Quality Control Act empowers the EIB and NMED to 
institute legal proceedings to compel compliance with the Air Quality 
Control Act and any regulations of the EIB or local air quality control 
agencies (NMSA 1978, section 74-2-5.1); issue compliance orders, 
commence civil actions, and issue field citations (NMSA 1978, section 
74-2-12); assess civil penalties for violations of the Act or 
regulations promulgated under it or permits issued (NMSA 1978, section 
74-2-12.1); conduct inspections of regulated entities (NMSA 1978, 
section 74-2-13); and pursue criminal prosecutions (NMSA 1978, 
section74-2-14). Additional enforcement authorities and funding 
mechanisms are provided by the Act at NMSA 1978, section 74-2-15. These 
sections of the Air Quality Control Act were adopted into the SIP on 
November 2, 1984 (49 FR 44101).
    NMED air quality standards and regulations containing specific 
enforcement provisions and adopted into the SIP include: 20.2.7 NMAC 
Excess Emissions (74 FR 46910) and 20.2.72 Construction Permits (38 FR 
12702 and 62 FR 50514).
    (2) Minor New Source Review. The CAA Section 110(a)(2)(C) also 
requires that the SIP include measures to regulate construction and 
modification of stationary sources to protect the NAAQS. With respect 
to smaller statewide minor sources Section 110(a)(2)(C) creates ``a 
general duty on States to include a program in their SIP that regulates 
the modification and construction of any stationary source as necessary 
to assure that the NAAQS are achieved (70 FR 71612 and 71677).'' EPA 
provides states with discretion in implementing their Minor NSR 
programs (71 FR 48696 and 48700). The ``considerably less detailed'' 
regulations for minor NSR are provided in 40 CFR

[[Page 15967]]

51.160 through 51.164. EPA has determined that New Mexico's Minor NSR 
program adopted pursuant to section 110(a)(2)(C) of the Act regulates 
emissions of all regulated air contaminants for which there is a NAAQS 
(see 20.2.72.200 NMAC). New Mexico's Minor NSR permitting requirements 
are found at 20.2.72 NMAC--Construction Permits and were approved into 
the SIP on May 14, 1973 (38 FR 12702), with revisions approved on 
September 26, 1997 (62 FR 50514), June 13, 2012 (77 FR 35273), and 
March 11, 2013 (78 FR 15296).
    In this action, EPA is proposing to approve New Mexico's 
infrastructure SIPs for the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> 
standards 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 as necessary to 
assure that the NAAQS are achieved. However, EPA is not proposing to 
approve or disapprove New Mexico's existing minor NSR program to the 
extent that it may be inconsistent with EPA's regulations governing 
this program. EPA has maintained that the CAA does not require that new 
infrastructure SIP submissions correct any defects in existing EPA-
approved provisions of minor NSR programs in order for EPA to approve 
the infrastructure SIP for element C (e.g., 76 FR 41076-41079). EPA 
believes that a number of states may have Minor NSR provisions that are 
contrary to the existing EPA regulations for this 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 to give 
the states an appropriate level of flexibility to design a program that 
meets their particular air quality concerns, while assuring reasonable 
consistency across the country in protecting the NAAQS with respect to 
new and modified minor sources.
    (3) Prevention of Significant Deterioration (PSD) permit program. 
New Mexico also has a program approved by EPA as meeting the 
requirements of Part C, relating to prevention of significant 
deterioration of air quality. In order to demonstrate that New Mexico 
has met this sub-element, this PSD program must cover requirements not 
just for the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS, but for 
all other regulated NSR pollutants as well.
    PSD programs apply in areas that are meeting the NAAQS, referred to 
as areas in attainment, and in areas for which there is insufficient 
information to designate as either attainment or nonattainment, 
referred to as unclassifiable areas. New Mexico's PSD program was 
conditionally approved into the SIP on February 27, 1987 (52 FR 5964) 
and fully approved on August 15, 2011 (76 FR 41698). Revisions to New 
Mexico's PSD program were approved into the SIP on August 21, 1990 (55 
FR 34013), May 2, 1991 (56 FR 20137), October 15, 1996 (61 FR 53639), 
March 10, 2003 (68 FR 11316), December 24, 2003 (68 FR 74483), 
September 5, 2007 (72 FR 50879), November 26, 2010 (75 FR 72688), July 
20, 2011 (76 FR 43149), June 13, 2012 (75 FR 72688), January 22, 2013 
(78 FR 4339), and March 11, 2013 (78 FR 15296). Additionally, on June 
11, 2009 and May 23, 2011, New Mexico submitted modifications to revise 
the state's PSD and non-attainment new source review (NNSR) permitting 
regulations to address the permitting requirements associated with the 
NAAQS for 8-hour ozone and PM<INF>2.5</INF>, respectively. EPA approved 
the portions of the June 11, 2009 submittal associated with 
implementing NO<INF>X</INF> as a precursor (75 FR 72688) as necessary 
to implement the 1997 ozone standard. EPA approved the May 23, 2011, 
revision in a Federal Register notice published January 22, 2013, as 
these elements are necessary for implementation of the PM<INF>2.5</INF> 
standard (78 FR 4339).
    Based upon review of the state's infrastructure SIP submissions for 
the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS, and relevant 
statutory and regulatory authorities and provisions referenced in the 
submissions or referenced in New Mexico's SIP, with respect to the 
requirements of section 110(a)(2)(C) for these NAAQS, EPA is proposing 
to approve these elements of the August 27, 2013 and March 12, 2014 
submissions.
    (D) Interstate and international transport: The CAA Section 
110(a)(2)(D)(i) includes four requirements referred to as prongs 1 
through 4. Prongs 1 and 2 are provided at section 110(a)(2)(D)(i)(I), 
and prongs 3 and 4 are provided at section 110(a)(2)(D)(i)(II). Section 
110(a)(2)(D)(i)(I) requires SIPs to include adequate provisions 
prohibiting any source or other type of emissions activity in one state 
from contributing significantly to nonattainment (Prong 1) or 
interfering with maintenance (Prong 2) of any NAAQS in another state. 
Section 110(a)(2)(D)(i)(II) requires SIPs to include adequate 
provisions prohibiting any source or other type of emissions activity 
in one state from interfering with measures required of any other state 
to prevent significant deterioration of air quality (Prong 3) or to 
protect visibility (Prong 4).
    With respect to prongs 1 and 2, New Mexico elected to not make a 
submittal, consistent with a court decision that was relevant at the 
time (EME Homer City Generation, L.P. v. E.P.A, 696 F.3d 7 (D.C. Cir. 
2012)). This decision was later reversed by the Supreme Court (EPA v. 
EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014), reversing 696 
F.3d 7 (D.C. Cir. 2012)). We expect that New Mexico will make a SIP 
submittal for prongs 1 and 2 at a later time.
    With respect to prong 3, as noted above, the New Mexico PSD program 
contains the necessary provisions to meet the prevention of significant 
deterioration element as required for both the standards and has been 
approved by EPA into the SIP.
    With respect to prong 4, as noted previously, on November 27, 2012, 
we approved the New Mexico Regional Haze SIP except for the BART 
determination for SJGS. On October 9, 2014, we approved the BART 
determination for SJGS and found that the New Mexico SIP satisfies the 
requirements of CAA 110(a)(2)(D)(i)(II) with respect to interstate 
transport of air pollution and visibility protection.\14\
---------------------------------------------------------------------------

    \14\ This prong 4 discussion pertains to the SIP submittals for 
the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> SIP submittals. The 
prong 4 discussion for the 2006 PM<INF>2.5</INF> SIP submittal is 
below.
---------------------------------------------------------------------------

    Finally, Sec.  110(a)(2)(D)(ii) regards the interstate pollution 
abatement requirements of section 126 and the international pollution 
requirements of section 115. As stated above in Section 110(a)(2)(C) of 
the Infrastructure SIP, New Mexico has a SIP-approved PSD program which 
includes provisions that satisfy the interstate pollution abatement 
requirements of section 126 of the CAA. Section 115 of the CAA 
authorizes EPA to require a state to revise its SIP under certain 
conditions to alleviate international transport into another country. 
There are no final findings under section 115 of the CAA with respect 
to any air pollutant generated in New Mexico. Therefore, New Mexico has 
no obligations under section 115. If there are future final findings 
under section 115 of the CAA, NMED will consult with EPA.
    Based upon review of the state's infrastructure SIP submissions for 
the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS, and relevant 
statutory and regulatory authorities and provisions referenced in the 
submissions or referenced in New Mexico's SIP, EPA believes that New 
Mexico has the adequate infrastructure

[[Page 15968]]

needed to address sections 110(a)(2)(D)(i)(II) (prongs 3 and 4), and 
110(a)(2)(D)(ii) for the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> 
NAAQS and is proposing to approve these portions of the August 27, 2013 
and March 12, 2014, submissions. We expect that at a later time New 
Mexico will make a SIP submittal addressing section 110(a)(2)(D)(i)(I) 
(prongs 1 and 2).
    (E) Adequate authority, resources, implementation, and oversight: 
The CAA Section 110(a)(2)(E) requires that SIPs provide for the 
following: (1) Necessary assurances that the state (and other entities 
within the state responsible for implementing the SIP) will have 
adequate personnel, funding, and authority under state or local law to 
implement the SIP, and that there are no legal impediments to such 
implementation; (2) requirements relating to state boards, pursuant to 
section 128 of the CAA; and (3) necessary assurances that the state has 
responsibility for ensuring adequate implementation of any plan 
provision for which it relies on local governments or other entities to 
carry out that portion of the plan.
    With respect to adequacy of authority, we have previously discussed 
New Mexico's statutory and regulatory authority to implement the 2008 
O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS. The Air Quality Control 
Act at NMSA 1978, section 74-2-5 provides the authority necessary to 
carry out the SIP requirements as referenced above in element A. The 
Act provides the NMED with broad 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. The Act 
also provides the board adequate legal authority to enforce applicable 
laws, regulations, standards, and compliance schedules, and seek 
injunctive relief. In addition, Sec.  74-2-5.1 of the Act provides the 
department legal authority to enforce applicable laws, regulations, 
standards, and compliance schedules.
    With respect to adequacy of resources, NMED asserts that it has 
adequate personnel to implement the SIP. The infrastructure SIP 
submissions for the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS 
describe the regulations governing the various functions of personnel 
within the Air Quality Bureau, including the administrative, technical 
support, planning, enforcement, and permitting functions of the 
program.
    With respect to funding, the Air Quality Control Act NMSA 1978, 
section 74-2-7 requires NMED to establish an emissions fee schedule for 
sources in order to fund the reasonable costs of administering various 
air pollution control programs and also authorizes NMED to collect 
additional fees necessary to cover reasonable costs associated with 
processing of air permit applications. The Act provides for the deposit 
of the fees into various subaccounts (e.g., the state's air quality 
permit fund for the Title V operating permit program used for Title V 
implementation activities; and various subaccounts for local air 
quality agencies). The NMED also receives funding from general revenue 
funds and EPA grants under, for example, sections 103 and 105 of the 
CAA, to finance air quality programs. EPA conducts periodic program 
reviews to ensure that the state has adequate resources and funding to, 
among other things, implement the SIP.
    With regard to the conflict of interest provisions of Section 128 
of the Act, section 110(a)(2)(E)(ii) requires that each state SIP meet 
the requirements of section 128, relating to representation on state 
boards and conflicts of interest by members of such boards. Section 
128(a)(1) requires that any board or body which approves permits or 
enforcement orders under the CAA must have at least a majority of 
members who represent the public interest and do not derive any 
``significant portion'' of their income from persons subject to permits 
and enforcement orders under the CAA. Section 128(a)(2) requires that 
members of such a board or body, or the head of an agency with similar 
powers, adequately disclose any potential conflicts of interest.
    The Environmental Improvement Act at NMSA 1978, section 74-1-4 
provides that the Environmental Improvement Board contain at least a 
majority of members who represent the public interest and do not derive 
any significant portion of their income from persons subject to or who 
appear before the board on issues related to the Clean Air Act or Air 
Quality Control Act. Furthermore, pursuant to state regulations adopted 
by the Board, Board members are required to recuse themselves from 
rule-makings in which their impartiality may reasonably be questioned. 
(see 20.1.1.111 NMAC).
    With respect to assurances that the State has responsibility to 
implement the SIP adequately when it authorizes local or other agencies 
to carry out portions of the plan, the Environmental Improvement Act 
and the Air Quality Control Act designate the NMED as the primary air 
pollution control agency ``for all purposes'' of implementing the 
requirements of the federal Clean Air Act and the New Mexico Air 
Quality Control Act.
    There is one local air quality control agency that assumes 
jurisdiction for local administration and enforcement of Air Quality 
Control Act in New Mexico, the Albuquerque/Bernalillo County Air 
Quality Control Board, as authorized by the NMSA 1978, section 74-2-4. 
Pursuant to the New Mexico Air Quality Control Act, the local air 
quality control agency, within the boundaries of the Albuquerque/
Bernalillo County area, is delegated all those functions delegated to 
the Environmental Improvement Board, with the exception of any 
functions reserved exclusively for the Environmental Improvement Board, 
NMSA 1978, section 74-2-4(A)(1). Further, The Air Quality Control Act, 
grants the local air quality control agency, within the boundaries of 
the Albuquerque/Bernalillo County are, the authority to perform all the 
duties required of NMED and exert all of the powers granted to NMED, 
except for those powers and duties reserved exclusively for the 
department, NMSA 1978, section 74-2-4(A)(2). However, the NMED and the 
state Environmental Improvement Board retain oversight authority in the 
event the local authority fails to act. EPA conducts reviews of the 
local program activities in conjunction with its oversight of the state 
program.
    Based upon review of the state's infrastructure SIP submissions for 
the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS and relevant 
statutory and regulatory authorities and provisions referenced in the 
submissions or referenced in New Mexico's SIP, EPA believes that New 
Mexico has the adequate infrastructure needed to address section 
110(a)(2)(E) for the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS 
and is proposing to approve these elements of the August 27, 2013 and 
March 12, 2014 submissions.
    (F) Stationary source monitoring system: The CAA Section 
110(a)(2)(F) requires states to establish a system to monitor emissions 
from stationary sources and to submit periodic emission reports. Each 
SIP shall require 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. The SIP shall also require periodic reports on the nature and 
amounts of emissions and emissions-related data from such sources, and 
requires that the state correlate the source reports with emission 
limitations or standards established under the CAA. These reports must 
be made available for public inspection at reasonable times.

[[Page 15969]]

    To address this element, the Air Quality Control Act at NMSA 1978, 
74-2-5 authorizes the NMED to require persons engaged in operations 
which result in air pollution to monitor or test emissions and to file 
reports containing information relating to the nature and amount of 
emissions. State regulations pertaining to sampling and testing are 
codified at 20.2.72 NMAC Construction Permits, 20.2.70 NMAC Operating 
Permits, and 20.2.79 NMAC Permits--Nonattainment Areas, and 
requirements for reporting of emissions inventories are codified at 
20.2.73 NMAC Notice of Intent and Emission Inventory Requirements. In 
addition, rules at 20.2.5 NMAC Source Surveillance, establish general 
requirements for maintaining records and reporting emissions.
    The NMED uses this information, in addition to information obtained 
from other sources, to track progress towards maintaining the NAAQS, 
developing control and maintenance strategies, identifying sources and 
general emission levels, and determining compliance with emission 
regulations and additional EPA requirements. NMED makes this 
information available to the public (20.2.5 NMAC Source Surveillance). 
Provisions concerning the handling of confidential data and proprietary 
business information are included in the general provisions regulations 
at 20.2.1.115, Confidential Business Information. These rules 
specifically exclude from confidential treatment any records concerning 
the nature and amount of emissions reported by sources.
    Based upon review of the state's infrastructure SIP submissions for 
the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS, and relevant 
statutory and regulatory authorities and provisions referenced in the 
submissions or referenced in New Mexico's SIP, EPA believes that New 
Mexico has the adequate infrastructure needed to address section 
110(a)(2)(F) for the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS 
and is proposing to approve this element of the August 27, 2013 and 
March 12, 2014, submissions.
    (G) Emergency authority: The CAA Section 110(a)(2)(G) requires SIPs 
to provide for authority to address activities causing imminent and 
substantial endangerment to public health or welfare or the environment 
(comparable to the authorities provided in section 303 of the CAA), and 
to include contingency plans to implement such authorities as 
necessary.
    The Air Quality Control Act provides NMED with authority to address 
environmental emergencies, and NMED has contingency plans to implement 
emergency episode provisions in the SIP.
    Upon a finding that any owner/operator is unreasonably affecting 
the public health, safety or welfare, or the health of animal or plant 
life, or property, the New Mexico Air Quality Control Act authorizes 
NMED to, after a reasonable attempt to give notice, declare a state of 
emergency and issue without hearing an emergency special order 
directing the owner/operator to cease such pollution immediately (NMSA 
1978, Sec.  74-7-10).
    States also need to comply with the Prevention of Air Pollution 
Emergency Episode requirements of 40 CFR 51, Subpart H. New Mexico 
promulgated the ``Air Pollution Episode Contingency Plan for New 
Mexico,'' which includes contingency measures, and these provisions 
were approved into the SIP on August 21, 1990 (55 FR 34013). Under 
Subpart H, Priority III Regions are not required to have contingency 
plans. For ozone, Priority III Regions are those monitoring less than 
195 [mu]g/m\3\. The 2010-2012 ozone ambient air quality monitoring data 
for New Mexico does not exceed 195 [mu]g/m\3\. The ozone levels have 
consistently remained below this level and, furthermore, the State has 
appropriate general emergency powers to address ozone related episodes 
to protect the environment and public health. Additional information 
regarding Section 110(a)(2)(G) can be found in the TSD.
    For NO<INF>2</INF>, Priority III areas are those monitoring less 
than 60 ppb for an annual arithmetic mean. The 2010-2012 NO<INF>2</INF> 
ambient air quality monitoring data for New Mexico does not exceed the 
100 ppb 1-hour primary NAAQS or the 53 ppb annual primary and secondary 
NAAQS nor does it exceed the 60 ppb criteria level for Priority III 
areas. The NO<INF>2</INF> levels have consistently remained below these 
levels and, furthermore, the State has appropriate general emergency 
powers to address NO<INF>2</INF> related episodes to protect the 
environment and public health.
    Based upon review of the state's infrastructure SIP submissions for 
the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS, and relevant 
statutory and regulatory authorities and provisions referenced in those 
submissions or referenced in New Mexico's SIP, EPA believes that the 
New Mexico SIP adequately addresses section 110(a)(2)(G) for the 2008 
O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS and is proposing to approve 
these elements of the August 27, 2013 and March 12, 2014, submissions.
    (H) Future SIP revisions: The CAA 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 
the NAAQS, or in response to an EPA finding that the SIP is 
substantially inadequate to attain the NAAQS.
    New Mexico's Environmental Improvement Act and Air Quality Control 
Act authorize the NMED as the primary agency in the state concerned 
with environmental protection and enforcement of regulations, including 
but not limited to air quality (see NMSA 1978, section 74-1 and NMSA 
1978, section 74-2). The Air Quality Control Act gives the NMED the 
authority to ``develop and present to the Environmental Improvement 
Board a plan for the control, regulation, prevention or abatement of 
air pollution . . .,'' and authorizes the EIB to adopt such a plan (see 
NMSA 1978, section 74-2-5.1(H) and NMSA 1978, section 74-2-5(B)(2)). 
The Act also authorizes the New Mexico EIB to ``adopt, promulgate, 
publish, amend and repeal regulations consistent with the Air Quality 
Control Act to attain and maintain the national ambient air quality 
standards and prevent and abate air pollution . . .'' and the 
Environmental Improvement Act authorizes the NMED to enforce such 
rules, regulations and orders promulgated by the EIB (see NMSA 1978, 
section 74-2-5(B)(1) and NMSA 1978, section 74-1-6(F)). Furthermore, 
the Air Quality Control Act requires the NMED to, ``. . . advise, 
consult, contract with and cooperate with local authorities, other 
states, the federal government and other interested persons or groups 
in regard to matters of common interest in the field of air quality 
control . . .'' (see NMSA 1978, section 74-2-5.2(B)).
    Thus, New Mexico has the authority to revise its SIP, as necessary, 
to account for revisions of the NAAQS, to adopt more effective methods 
of attaining the NAAQS, and to respond to EPA SIP calls. Based upon 
review of the state's infrastructure SIP submissions for the 2008 
O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS, and relevant statutory and 
regulatory authorities and provisions referenced in the submissions or 
referenced in New Mexico's SIP, EPA believes that New Mexico has 
adequate authority to address section 110(a)(2)(H) for the 2008 
O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS and is proposing to approve 
this element of the August 27, 2013 and March 12, 2014, submissions.
    (I) Nonattainment areas: The CAA Section 110(a)(2)(I) requires that 
in the case of a plan or plan revision for areas designated as 
nonattainment areas, states must meet applicable

[[Page 15970]]

requirements of part D of the CAA, relating to SIP requirements for 
designated nonattainment areas.
    As noted earlier, EPA does not expect infrastructure SIP 
submissions to address subsection (I). The specific SIP submissions for 
designated nonattainment areas, as required under CAA title I, part D, 
are subject to different submission schedules than those for section 
110 infrastructure elements. Instead, EPA will take action on part D 
attainment plan SIP submissions through a separate rulemaking process 
governed by the requirements for nonattainment areas, as described in 
part D. Additionally, New Mexico presently does not contain any non-
attainment areas for O<INF>3</INF> or NO<INF>2</INF>.
    (J) Consultation with government officials, public notification, 
PSD and visibility protection: The CAA Section 110(a)(2)(J) requires 
SIPs to meet the applicable requirements of the following CAA 
provisions: (1) Section 121, relating to interagency consultation 
regarding certain CAA requirements; (2) section 127, relating to public 
notification of NAAQS exceedances and related issues; and (3) part C of 
the CAA, relating to prevention of significant deterioration of air 
quality and visibility protection.
    (1) With respect to interagency consultation, the SIP should 
provide a process for consultation with general-purpose local 
governments, designated organizations of elected officials of local 
governments, and any Federal Land Manager having authority over Federal 
land to which the SIP applies. New Mexico's Air Quality Control Act 
provides that ``no regulations or emission control requirement shall be 
adopted until after a public hearing by the environmental improvement 
board or the local board'' and that, ``at the hearing, the 
environmental improvement board or the local board shall allow all 
interested persons reasonable opportunity to submit data, views, or 
arguments orally or in writing and to examine witnesses testifying at 
the hearing'' (see NMSA 1978, 74-2-6(B) and (D)). In addition, the Air 
Quality Control Act provides that the NMED shall have the power and 
duty to ``advise, consult, contract with and cooperate with local 
authorities, other states, the federal government and other interested 
persons or groups in regard to matters of common interest in the field 
of air quality control . . .'' (see 1978 74-2-5.2(B)). Furthermore, New 
Mexico's PSD rules at 20.2.74.400 NMAC mandate that the NMED shall 
provide for public participation and notification regarding permitting 
applications to any other state or local air pollution control 
agencies, local government officials of the city or county where the 
source will be located, tribal authorities, and FLMs whose lands may be 
affected by emissions from the source or modification. Additionally, 
the State's PSD rules at 20.2.74.403 NMAC require the NMED to consult 
with Federal Land Managers (FLMs) regarding permit applications for 
sources with the potential to impact Class I Federal Areas (75 FR 72688 
and 72 FR 50879). Finally, the State of New Mexico has committed in the 
SIP to consult continually with the FLMs on the review and 
implementation of the visibility program, and the State recognizes the 
expertise of the FLMs in monitoring and new source review applicability 
analyses for visibility and has agreed to notify the FMLs of any 
advance notification or early consultation with a major new or 
modifying source prior to the submission of the permit application (71 
FR 4490). The State's Transportation Conformity rules at 20.2.99.116 
through 20.2.99.124 NMAC provide procedures for interagency 
consultation, resolution of conflicts, and public notification (65 FR 
14873 and 75 FR 21169).
    (2) With respect to the requirements for public notification in 
section 127 of the CAA, the infrastructure SIP should provide citations 
to regulations in the SIP requiring the air agency to regularly notify 
the public of instances or areas in which any NAAQS are exceeded; 
advise the public of the health hazard associated with such 
exceedances; and enhance public awareness of measures that can prevent 
such exceedances and of ways in which the public can participate in the 
regulatory and other efforts to improve air quality. Provisions 
regarding public notification of instances or areas in which any 
primary NAAQS was exceeded were approved into the New Mexico SIP on 
August 24, 1983 (48 FR 38466). In addition, as discussed for 
infrastructure element B above, the NMED air monitoring Web site 
provides live air quality data for each of the monitoring stations in 
New Mexico.\10\ The Web site also provides information on the health 
effects of ozone, particulate matter, and other criteria pollutants.
    (3) Regarding the applicable requirements of part C of the CAA, 
relating to prevention of significant deterioration of air quality and 
visibility protection, as noted above under infrastructure element C, 
the New Mexico SIP meets the PSD requirements. With respect to the 
visibility component of section 110(a)(2)(J), EPA recognizes that 
states are subject to visibility and regional haze program requirements 
under part C of the CAA, which includes sections 169A and 169B. 
However, when EPA establishes or revises a NAAQS, these visibility and 
regional haze requirements under part C do not change. Therefore, EPA 
believes that there are no new visibility protection requirements under 
part C as a result of a revised NAAQS, and consequently there are no 
newly applicable visibility protection obligations pursuant to 
infrastructure element J after the promulgation of a new or revised 
NAAQS.
    Based upon review of the state's infrastructure SIP submission for 
the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS, and relevant 
statutory and regulatory authorities and provisions referenced in these 
submissions or referenced in New Mexico's SIP, EPA believes that New 
Mexico has met the applicable requirements of section 110(a)(2)(J) for 
the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS in the state and 
is therefore proposing to approve this element of the August 27, 2013 
and March 12, 2014, submissions.
    (K) Air quality and modeling/data: The CAA Section 110(a)(2)(K) 
requires that SIPs provide for performing air quality modeling, as 
prescribed by EPA, to predict the effects on ambient air quality of any 
emissions of any NAAQS pollutant, and for submission of such data to 
EPA upon request.
    The NMED has the power and duty, under the Air Quality Control Act 
to ``develop facts and make investigations and studies,'' thereby 
providing for the functions of environmental air quality assessment 
(see NMSA 1978, 74-2-5). Past modeling and emissions reductions 
measures have been submitted by the State and approved into the SIP. 
For example, the air modeling and control measures submitted within the 
attainment demonstration for the San Juan County Early Action Compact 
Area, approved by EPA and adopted into the SIP on August 17, 2005 (70 
FR 48285). Additionally, New Mexico has the ability to perform modeling 
for the primary and secondary PM<INF>2.5</INF> standards and other 
criteria pollutant NAAQS on a case-by-case permit basis consistent with 
their SIP-approved PSD rules and with EPA protocols on Air Quality 
Models at 40 CFR part 51, Appendix W.
    This section of the CAA also requires that a SIP provide for the 
submission of data related to such air quality modeling to the EPA upon 
request. The New Mexico Air Quality Control Act authorizes and requires 
NMED to cooperate with the federal government and local authorities in 
regard to matters of common interest in the field of air quality 
control, thereby allowing the

[[Page 15971]]

agency to make such submissions to the EPA (see NMSA 1978, 74-2-
5.2(B)).
    Based upon review of the state's infrastructure SIP submissions for 
the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS, and relevant 
statutory and regulatory authorities and provisions referenced in these 
submissions or referenced in New Mexico's SIP, EPA believes that New 
Mexico has the adequate infrastructure needed to address section 
110(a)(2)(K) for the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS 
and is proposing to approve this element of the Aug 27, 2013 and March 
12, 2014, submissions.
    (L) Permitting Fees: The CAA Section 110(a)(2)(L) requires SIPs to 
require each major stationary source to pay permitting fees to the 
permitting authority, as a condition of any permit required under the 
CAA, to cover the cost of reviewing and acting upon any application for 
such a permit, and, if the permit is issued, the costs of implementing 
and enforcing the terms of the permit. The fee requirement applies 
until a fee program established by the state pursuant to Title V of the 
CAA, relating to operating permits, is approved by EPA.
    The Air Quality Control Act provides the EIB with the legal 
authority for establishing an emission fee schedule and a construction 
permit fee schedule to recover the reasonable costs of acting on permit 
applications, implementing, and enforcing permits.\15\ New Mexico's fee 
schedule for construction permits is codified at 20.2.75 NMAC, 
Construction Permit Fees. These regulations implement a fee schedule 
for all preconstruction air permits issued by NMED and were approved by 
EPA into the SIP on September 16, 1991 (56 FR 32511) and November 25, 
1997 (62 FR 50514).
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    \15\ See Environmental Improvement Act, Paragraph 4 of 
Subsection A of Section 74-1-8 NMSA 1978, and Air Quality Control 
Act, Chapter 74, Article 2 NMSA 1978, including specifically, 
Paragraph 6 of Subsection B of Section 74-2-7 NMSA 1978.
---------------------------------------------------------------------------

    In addition to preconstruction fees, New Mexico also requires major 
sources subject to the federal Title V operating permit program to pay 
annual operating permit fees. This operating permit fee schedule is 
codified at 20.2.71 NMAC, Operating Permit Emission Fees. Title V 
operating permit programs and associated fees legally are not part of 
the SIP, but were approved by EPA on November 26, 1996 (61 FR 60032) as 
part of the New Mexico Title V Program (see 40 CFR part 70, Appendix 
A).\16\ EPA reviews the New Mexico Title V program, including Title V 
fee structure, separately from this proposed action. Because the Title 
V program and associated fees legally are not part of the SIP, the 
infrastructure SIP action we are proposing today does not preclude EPA 
from taking future action regarding New Mexico's Title V permitting 
program and associated fees.
---------------------------------------------------------------------------

    \16\ As indicated in New Mexico's 2008 O<INF>3</INF> and 2010 
NO<INF>2</INF> infrastructure SIP submissions, NEMD's operating 
permit fees regulation was inadvertently adopted into the SIP by EPA 
on November 25, 1997 (62 FR 50514). This regulation was removed from 
the SIP by EPA in a subsequent action on July 15, 2011 (76 FR 
41698).
---------------------------------------------------------------------------

    Based upon review of the state's infrastructure SIP submissions for 
the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS, and relevant 
statutory and regulatory authorities and provisions referenced in these 
submissions or referenced in New Mexico's SIP, EPA believes that the 
requirements of section 110(a)(2)(L) are met and is proposing to 
approve this element of the August 27, 2013 and March 12, 2014 
submissions.
    (M) Consultation/participation by affected local entities: The CAA 
Section 110(a)(2)(M) requires SIPs to provide for consultation and 
participation by local political subdivisions affected by the SIP.
    New Mexico's Air Quality Control Act provides that, ``no 
regulations or emission control requirement shall be adopted until 
after a public hearing by the environmental improvement board or the 
local board'' and provides that, ``at the hearing, the environmental 
improvement board or the local board shall allow all interested persons 
reasonable opportunity to submit data, views, or arguments orally or in 
writing and to examine witnesses testifying at the hearing'' (see NMSA 
1978, 74-2-6(B) and (D)). In addition, the Air Quality Control Act 
provides that the NMED shall have the power and duty to ``advise, 
consult, contract with and cooperate with local authorities, other 
states, the federal government and other interested persons or groups 
in regard to matters of common interest in the field of air quality 
control . . .'' (see NMSA 1978, 74-2-5.2(B)). The Act also requires 
initiation of cooperative action between local authorities and the 
NMED, between one local authority and another, or among any combination 
of local authorities and the NMED 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. NMED has a long 
history of successful cooperation with the local air quality authority 
in Albuquerque/Bernalillo County and tribal governments.
    With regard to permitting actions, New Mexico's PSD regulations at 
20.2.74.400 NMAC, approved into the SIP on March 30, 1987 (52 FR 5964) 
and December 16, 1996 (61 FR 53642), mandate that the NMED shall 
provide for public participation and notification regarding permitting 
applications to any other state or local air pollution control 
agencies, local government officials of the city or county where the 
source will be located, and Federal Land Managers whose lands may be 
affected by emissions from the source or modification. New Mexico's 
Transportation Conformity regulations at 20.2.99.116 and 20.2.99.124 
NMAC, both approved into the SIP on April 23, 2010 (75 FR 21169), 
require that interagency consultation and opportunity for public 
involvement be provided before making transportation conformity 
determinations and before adopting applicable SIP revisions on 
transportation-related SIPs.
    Based upon review of the state's infrastructure SIP submissions for 
the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS, and relevant 
statutory and regulatory authorities and provisions referenced in the 
submissions or referenced in New Mexico's SIP, EPA believes that New 
Mexico has the adequate infrastructure needed to address section 
110(a)(2)(M) for the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS 
and is proposing to approve this element of the August 27, 2013 and 
March 12, 2014 submissions.

IV. EPA's Evaluation of Interstate Transport of Air Pollution and 
Visibility Protection for the 2006 PM<INF>2.5</INF> NAAQS in New 
Mexico's SIP

    One of the SIP requirements for new or revised NAAQS is to provide 
adequate provisions prohibiting emissions which interfere with required 
measures in any other State to protect visibility (CAA 
110(a)(2)(D)(i)(II)). In a June 12, 2009 SIP submittal, New Mexico 
stated that they had satisfied the SIP requirements of CAA 110(a) for 
the PM<INF>2.5</INF> NAAQS promulgated in 2006. The other portions of 
the June 12, 2009 SIP submittal were previously approved (January 22, 
2013, 78 FR 4337, July 9, 2013, 78 FR 40966). No action was taken on 
the portion pertaining to CAA 110(a)(2)(D)(i)(II) and visibility 
protection. As noted above, we approved the New Mexico Regional Haze 
SIP and found that the New Mexico SIP satisfies the requirements of CAA 
110(a)(2)(D)(i)(II) with respect to interstate transport of air 
pollution and visibility protection. (November 27, 2012, 77 FR 70693 
and October 9, 2014,

[[Page 15972]]

79 FR 60985). In our rulemaking that was finalized on October 9, 2014 
we overlooked an opportunity to act on a portion of the June 12, 2009 
SIP submittal pertaining to interstate transport of air pollution and 
visibility protection. Because New Mexico has a fully approved Regional 
Haze SIP and Visibility Transport SIP, we propose to approve this 
portion of the June 12, 2009 SIP submittal and find that New Mexico 
meets the CAA 110(a)(2)(D)(i)(II) visibility protection requirement for 
the 2006 PM<INF>2.5</INF> NAAQS.

V. Proposed Action

    EPA is proposing to approve the August 27, 2013 and March 12, 2014, 
infrastructure SIP submissions from New Mexico, which address the 
requirements of CAA sections 110(a)(1) and (2) as applicable to the 
2008 O<INF>3</INF> and 2010 NO<INF>2</INF> NAAQS. Specifically, EPA is 
proposing to approve the following infrastructure elements, or portions 
thereof: 110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), 
(H), (J), (K), (L), and (M). As discussed in applicable sections of 
this rulemaking, EPA is not proposing action on section 110(a)(2)(I)--
Nonattainment Area Plan or Plan Revisions Under Part D, nor on the 
visibility protection portion of section 110(a)(2)(J). Based upon 
review of the state's infrastructure SIP submissions and relevant 
statutory and regulatory authorities and provisions referenced in these 
submissions or referenced in New Mexico's SIP, EPA believes that New 
Mexico has the infrastructure in place to address all applicable 
required elements of sections 110(a)(1) and (2) (except otherwise 
noted) to ensure that the 2008 O<INF>3</INF> and 2010 NO<INF>2</INF> 
NAAQS are implemented in the state.
    We are also proposing to approve the visibility protection portion 
of the June 12, 2009 SIP submittal and find that the New Mexico 
Visibility SIP meets the CAA 110(a)(2)(D)(i)(II) requirement for the 
2006 PM<INF>2.5</INF> NAAQS.

VI. Incorporation by Reference

    In this action, we are proposing to include in a final rule 
regulatory text that includes incorporation by reference. In accordance 
with the requirements of 1 CFR 51.4, we are proposing to incorporate by 
reference revisions to the New Mexico SIP regulations as described in 
the Proposed Action section above. We have made, and will continue to 
make, these documents generally available electronically through 
www.regulation.gov and/or in hard copy at the appropriate EPA office 
(see the ADDRESSES section of this preamble for more information).

VII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely proposes to approve state law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR3821, January 21, 
2011);
    <bullet> does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
    <bullet> does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the proposed 
rule does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Interstate transport of 
pollution, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Visibility.

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

    Dated: March 13, 2015.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2015-06932 Filed 3-25-15; 8:45 am]
 BILLING CODE 6560-50-P


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