Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Proposed Rules 15963 

for any or all of the prior 3 calendar 

years, but no calendar year shall be 

subject to audit more than once. 

(c) Notice of intent to audit. The 

Collective must file with the Copyright 

Royalty Judges a notice of intent to audit 

CPB and Covered Entities, which shall, 

within 30 days of the filing of the 

notice, publish in the Federal Register 

a notice announcing such filing. The 

notification of intent to audit shall be 

served at the same time on CPB. Any 

such audit shall be conducted by an 

independent and Qualified Auditor 

identified in the notice, and shall be 

binding on all parties. 

(d) Acquisition and retention of 

report. CPB and Covered Entities shall 

use commercially reasonable efforts to 

obtain or to provide access to any 

relevant books and records maintained 

by third parties for the purpose of the 

audit. The Collective shall retain the 

report of the verification for a period of 

not less than 3 years. 

(e) Consultation. Before rendering a 

written report to the Collective, except 

where the auditor has a reasonable basis 

to suspect fraud and disclosure would, 

in the reasonable opinion of the auditor, 

prejudice the investigation of such 

suspected fraud, the auditor shall 

review the tentative written findings of 

the audit with the appropriate agent or 

employee of CPB in order to remedy any 

factual errors and clarify any issues 

relating to the audit; provided that an 

appropriate agent or employee of CPB 

reasonably cooperates with the auditor 

to remedy promptly any factual errors or 

clarify any issues raised by the audit. 

(f) Costs of the verification procedure. 

The Collective shall pay the cost of the 

verification procedure, unless it is 

finally determined that there was an 

underpayment of 10% or more, in 

which case CPB shall, in addition to 

paying the amount of any 

underpayment, bear the reasonable costs 

of the verification procedure. 

§ 380.36 Verification of royalty 

distributions. 

(a) General. This section prescribes 

procedures by which any Copyright 

Owner or Performer may verify the 

royalty distributions made by the 

Collective; provided, however, that 

nothing contained in this section shall 

apply to situations where a Copyright 

Owner or Performer and the Collective 

have agreed as to proper verification 

methods. 

(b) Frequency of verification. A 

Copyright Owner or Performer may 

conduct a single audit of the Collective 

upon reasonable notice and during 

reasonable business hours, during any 

given calendar year, for any or all of the 

prior 3 calendar years, but no calendar 

year shall be subject to audit more than 

once. 

(c) Notice of intent to audit. A 

Copyright Owner or Performer must file 

with the Copyright Royalty Judges a 

notice of intent to audit the Collective, 

which shall, within 30 days of the filing 

of the notice, publish in the Federal 

Register a notice announcing such 

filing. The notification of intent to audit 

shall be served at the same time on the 

Collective. Any audit shall be 

conducted by an independent and 

Qualified Auditor identified in the 

notice, and shall be binding on all 

Copyright Owners and Performers. 

(d) Acquisition and retention of 

report. The Collective shall use 

commercially reasonable efforts to 

obtain or to provide access to any 

relevant books and records maintained 

by third parties for the purpose of the 

audit. The Copyright Owner or 

Performer requesting the verification 

procedure shall retain the report of the 

verification for a period of not less than 

3 years. 

(e) Consultation. Before rendering a 

written report to a Copyright Owner or 

Performer, except where the auditor has 

a reasonable basis to suspect fraud and 

disclosure would, in the reasonable 

opinion of the auditor, prejudice the 

investigation of such suspected fraud, 

the auditor shall review the tentative 

written findings of the audit with the 

appropriate agent or employee of the 

Collective in order to remedy any 

factual errors and clarify any issues 

relating to the audit; Provided that the 

appropriate agent or employee of the 

Collective reasonably cooperates with 

the auditor to remedy promptly any 

factual errors or clarify any issues raised 

by the audit. 

(f) Costs of the verification procedure. 

The Copyright Owner or Performer 

requesting the verification procedure 

shall pay the cost of the procedure, 

unless it is finally determined that there 

was an underpayment of 10% or more, 

in which case the Collective shall, in 

addition to paying the amount of any 

underpayment, bear the reasonable costs 

of the verification procedure. 

§ 380.37 Unclaimed funds. 

If the Collective is unable to identify 

or locate a Copyright Owner or 

Performer who is entitled to receive a 

royalty distribution under this subpart, 

the Collective shall retain the required 

payment in a segregated trust account 

for a period of 3 years from the date of 

distribution. No claim to such 

distribution shall be valid after the 

expiration of the 3-year period. After 

expiration of this period, the Collective 

may apply the unclaimed funds to offset 

any costs deductible under 17 U.S.C. 

114(g)(3). The foregoing shall apply 

notwithstanding the common law or 

statutes of any State. 

Dated: March 20, 2015. 

Jesse M. Feder, 

Copyright Royalty Judge. 

[FR Doc. 2015–06896 Filed 3–25–15; 8:45 am] 

BILLING CODE 1410–72–P 

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. 

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 (O3) and the 2010 

NAAQS for Nitrogen Dioxide (NO2), 

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 (PM2.5) 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: 

• www.regulations.gov. Follow the 

online instructions. 

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1The previous O3 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). 

• Email: Ms. Sherry Fuerst at 

fuerst.sherry@epa.gov. 

• 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, 

fuerst.sherry@epa.gov. 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 O3 and 2010 

NO2 NAAQS 

III. EPA’s Evaluation of New Mexico’s 2008 

O3 and 2010 NO2 NAAQS Infrastructure 

Submissions 

IV. EPA’s Evaluation of Interstate Transport 

of Air Pollution and Visibility Protection 

for the 2006 PM2.5 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 O3 NAAQS 

and the second was submitted on March 

12, 2014, for the 2010 NO2 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 

PM2.5 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 PM2.5 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 PM2.5 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 PM2.5 NAAQS 

promulgated in 2006 (the 2006 PM2.5

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 PM2.5

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 O3

and 2010 NO2 NAAQS 

On March 27, 2008, EPA revised the 

primary and secondary O3 NAAQS 

(hereafter the 2008 O3 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 O3, setting an AQI value of 100 equal 

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2Although 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 O3 NAAQS was 

March 27, 2011. 3The previous NO2 NAAQS was issued in 1996. 

It established a primary and secondary standards of 

for nitrogen dioxide (NO2) as 0.053 parts per 

million (ppm) (100 micrograms per meter cubed (g/ 

m3)) annual arithmetic average. (61 FR 52852, 

October 8, 1996). 4Although 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 NO2 NAAQS was 

February 9, 2013. 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. 

6The 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 O3 or NO2 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. 7 40 CFR part 58 Appendix D 4.1. 

to 0.075 ppm, 8-hour average, and 

making proportional changes to the AQI 

values of 50, 150 and 200 measured as 

O3 and not to be exceeded with an 

averaging time of a rolling 3-month 

period. (73 FR 16436).2

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 NO2 NAAQS) 3 for 

oxides of nitrogen as measured by 

nitrogen dioxide (NO2), EPA made 

revisions to the primary NO2 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 NO2 monitoring 

network that includes monitors at 

locations where maximum NO2

concentrations are expected to occur, 

including within 50 meters of major 

roadways, as well as monitors sited to 

measure the area-wide NO2

concentrations that occur more broadly 

across communities. (75 FR 6474).4

For both the 2008 O3 and 2010 NO2

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. 

III. EPA’s Evaluation of New Mexico’s 

2008 O3 and 2010 NO2 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 O3 NAAQS 

and the 2010 NO2 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 O3 and NO2

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

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; recodified 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 O3 and 2010 NO2 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 O3 and 2010 NO2 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 O3

NAAQS, EPA regulations require that 

states and, where appropriate, local 

agencies must operate O3 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 O3

NAAQS).7 For the 2010 NO2 NAAQS, 

EPA regulations require that state and, 

where appropriate, local agencies must 

operate a minimum number of required 

NO2 monitoring sites as described in 40 

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8A copy of the 2013 AAMNP and EPA’s approval 

letter are included in the docket for this proposed 

rulemaking. 

9A copy of the 2010 5-year ambient monitoring 

network assessment and EPA’s approval letter are 

included in the docket for this proposed 

rulemaking. 

10See http://www.nmenv.state.nm.us/aqb/ 

monitor/airmonitoringnetwork.html, http:// 

drdasnm1.alink.com/ and http://airnow.gov. 

11See http://air.nmenv.state.nm.us. 

12These 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. 

13As 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. 

CFR part 58 Appendix D 4.3.1. Ambient 

NO2 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). 

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 O3 and 2010 NO2 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 

O3 and NO2, 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 

O3 and NO2 in its most recent 5-year 

monitoring network assessment, NMED 

concluded that monitors should be 

upgraded to newer models for both O3

and NO2, which is part of their 

continuing routine maintenance. NMED 

will continue to evaluate the ambient 

monitoring for O3 and NO2 every five 

years when it performs its recurrent 

ambient monitoring network 

assessment. 

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. 

Based upon review of the state’s 

infrastructure SIP submissions for the 

2008 O3 and 2010 NO2 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 O3

and 2010 NO2 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

(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 

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14This prong 4 discussion pertains to the SIP 

submittals for the 2008 O3 and 2010 NO2 SIP 

submittals. The prong 4 discussion for the 2006 

PM2.5 SIP submittal is below. 

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 O3 and 2010 NO2

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 O3

and 2010 NO2 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 PM2.5, 

respectively. EPA approved the portions 

of the June 11, 2009 submittal 

associated with implementing NOX 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 PM2.5 standard 

(78 FR 4339). 

Based upon review of the state’s 

infrastructure SIP submissions for the 

2008 O3 and 2010 NO2 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

Finally, § 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 O3 and 2010 NO2 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 

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needed to address sections 

110(a)(2)(D)(i)(II) (prongs 3 and 4), and 

110(a)(2)(D)(ii) for the 2008 O3 and 2010 

NO2 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 O3 and 

2010 NO2 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, § 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 O3 and 2010 NO2 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 O3 and 2010 NO2 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 O3 and 2010 NO2 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. 

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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 O3 and 2010 NO2 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 O3 and 2010 NO2 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, § 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 mg/m3. 

The 2010–2012 ozone ambient air 

quality monitoring data for New Mexico 

does not exceed 195 mg/m3. 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 NO2, Priority III areas are those 

monitoring less than 60 ppb for an 

annual arithmetic mean. The 2010–2012 

NO2 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 

NO2 levels have consistently remained 

below these levels and, furthermore, the 

State has appropriate general emergency 

powers to address NO2 related episodes 

to protect the environment and public 

health. 

Based upon review of the state’s 

infrastructure SIP submissions for the 

2008 O3 and 2010 NO2 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 O3 and 

2010 NO2 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 O3 and 2010 NO2 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 

O3 and 2010 NO2 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 

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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 O3 or NO2. 

(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 generalpurpose 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 O3 and 2010 NO2 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 O3 and 2010 NO2 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 PM2.5 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 

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15See 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. 

16As indicated in New Mexico’s 2008 O3 and 

2010 NO2 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). 

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 O3 and 2010 NO2 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 O3 and 2010 NO2 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). 

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. 

Based upon review of the state’s 

infrastructure SIP submissions for the 

2008 O3 and 2010 NO2 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 O3 and 2010 NO2 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 O3 and 2010 NO2 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 PM2.5

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 

PM2.5 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, 

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15972 Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Proposed Rules 

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 PM2.5 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 O3 and 

2010 NO2 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 

O3 and 2010 NO2 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 PM2.5 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: 

• 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); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 300 

[EPA–HQ–SFUND–2015–0136, 0137, 0138, 

0139, 0140 and 0141; FRL 9924–31–OSWER] 

National Priorities List 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Comprehensive 

Environmental Response, 

Compensation, and Liability Act 

(‘‘CERCLA’’ or ‘‘the Act’’), as amended, 

requires that the National Oil and 

Hazardous Substances Pollution 

Contingency Plan (‘‘NCP’’) include a list 

of national priorities among the known 

releases or threatened releases of 

hazardous substances, pollutants or 

contaminants throughout the United 

States. The National Priorities List 

(‘‘NPL’’) constitutes this list. The NPL is 

intended primarily to guide the 

Environmental Protection Agency 

(‘‘EPA’’ or ‘‘the agency’’) in determining 

which sites warrant further 

investigation. These further 

investigations will allow the EPA to 

assess the nature and extent of public 

health and environmental risks 

associated with the site and to 

determine what CERCLA-financed 

remedial action(s), if any, may be 

appropriate. This rule proposes to add 

six sites to the General Superfund 

section of the NPL. 

DATES: Comments regarding any of these 

proposed listings must be submitted 

(postmarked) on or before May 26, 2015. 

ADDRESSES: Identify the appropriate 

docket number from the table below. 

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