SUSANA MARTINEZ 

Governor 

JOHN A SANCHEZ 

Lieutenant Governor 

June 11, 2015 

Mr. Ron Curry 

Regional Administrator 

NEW MEXICO 

ENVIRONMENT DEPARTMEN@ 

Harold Runnels Building 15 JUN 25 PH 

www.nmenv.state.nm.us 

U.S. Environmental Protection Agency, Region 6 

1445 Ross Ave, Suite 1200 

Dallas, TX 75202-2733 

RYAN FLYNN 

Cabinet Secretary 

BUTCH TONGATE 

Deputy Secretary 

Subject: Proposed revision to the New Mexico State Implementation Plan (SIP) for Air 

Quality by amending 20.11.61 NMAC, Prevention ofSignificant Deterioration 

Dear Mr. Curry: 

I am writing on behalf of Governor Susana Martinez to request approval of the attached 

documentation which is proposed to serve as the basis for a revision to the New Mexico SIP. 

Specifically, I am submitting documentation for the amended regulation 20.11.61 NMAC, 

Prevention of Significant Deterioration, adopted pursuant to Title I of the CAA Amendments of 

1990. This rule applies exclusively to Albuquerque and Bernalillo County, New Mexico. 

This request follows my earlier request to EPA, in a letter of March 4, 2015, for parallel 

processing of this proposed SIP revision. 

The Albuquerque- Bernalillo County Air Quality Control Board (Air Board) adopted the 

amended 20.11.61 NMAC at its regular monthly meeting on April30, 2015, following a public 

hearing held the same evening. The public hearing was held in accordance with state law and 

public hearing requirements of 40 CFR 51.1 02. The amended regulations were filed with the 

New Mexico State Records Center on May 8, 2015 and became effective locally on May 29, 

2015. 

To facilitate your review, one hard copy of this SIP submittal and one exact duplicate in 

electronic form are enclosed. I believe that the submitted materials provide adequate 

documentation to support the requested SIP revision. 

The following materials are enclosed in the SIP submittal: 

1) SIP Completeness Checklist pursuant to 40 CFR 51, Appendix V; 
2) hearing record; 

4) the amended 20.11.61 NMAC adopted by the Air Board; and 

5) other supporting documentation. 

Your favorable consideration of this request is appreciated. If you have any questions, please 

contact Mary Lou Leonard, Director of the Albuquerque Environmental Health Department 

(EHD), at (505) 768-2631. 

y 

New Mexico Environment Department 

cc: Honorable Susana Martinez, Governor, State of New Mexico 

Jeffrey Kendall, General Counsel, NMED 

Michael Vonderheide, Director, Environmental Protection Division, NMED 

Richard Goodyear, Chief, Air Quality Bureau, NMED 

Kelsey Curran, Chair, Albuquerque - Bernalillo County Air Quality Control Board 

Danny Nevarez, Deputy Director, Albuquerque EHD 

Margaret Nieto, Control Strategies Manager, Air Quality Program, EHD 
Attachment C 

Attachment C contains copies of the following. 

Notice of Intent to Present Technical Testimony, with 

supporting exhibits, ftled April 14, 2015, regarding Air Board 

hearing on proposed amended 20.11.61 NMAC. 
BEFORE THE ALBUQUERQUE-BERN~ILLO COUNTY 

AIR QUALITY CONTROL BOARD 

IN THE MATTER OF THE PETITION TO AMEND 20.11.61 NMAC, PREVENTION OF 

SIGNIFICANT DETERIORATION AND SUBMIT THE ADOPTED 20.11.61 NMAC TO 

THE U.S. ENVIRONMENTAL PROTECTION AGENCY FOR PROPOSED 

INCORPORATION INTO THE NEW MEXICO STATE IMPLEMENTATION PLAN 

FOR AIR QUALITY (SIP). 

Air Quality Program, 

Environmental Health Department, 

City of Albuquerque, Petitioner 

AQCB Petition No. 2015-2 

CITY OF ALBUQUERQUE'S NOTICE OF INTENT 

TO PRESENT TECHNICAL TESTIMONY 

CJ1 

:J:. 

-o 

::Q 

.&-

-o 

:X 

r.a 

Pursuant to 20.11.82 NMAC, Rulemaking Procedures- Air Quality Control Board, the 

fJ'I ' 

:r 

< 

;o 

CJ 

:;r:"p;a 

:trn 

mo 

:Z:rt'l 

-i ..... l>< ,rn 

;tio 

J> 

!:; 

::t: 

City of Albuquerque Environmental Health Department, Air Quality Program, hereby submits its 

Notice oflntent to present technical testimony (NO I) in this proceeding. 

1. The person for whom the witness will testify. 

Air Quality Program, Environmental Health Department, City of Albuquerque, New 

Mexico. 

2. The name and qualifications of each technical witness. 

Ed Merta. Air Quality Regulation Development Coordinator, Control Strategies 

Division, Air Quality Program, Environmental Health Department, City of Albuquerque, New 

Notice of Intent Page 1 of 14 
Mexico. J.D. (Natural Resources Certificate), University ofNew Mexico; M.A. (and "ABD") 

History, Harvard University; M.A. History, Ohio University; B.A. International Studies, Ohio 

State University. Employed by the City of Albuquerque's Environmental Health Department 

since October 2014. Previously employed by the following organizations: New Mexico 

Renewable Energy Industries Association (law clerk school, temporary, 2014); WildEarth 

Guardians (intern, 2014); Western Resource Advocates (intern, 2013); Department ofFamily 

and Community Medicine, University ofNew Mexico School ofMedicine (2007 to 2011); 

Health Sciences Library and Informatics Center , University ofNew Mexico (1998 to 2007). 

Chief responsibility is to facilitate promulgation of air quality regulation through the 

Albuquerque- Bernalillo County Air Quality Control Board (Air Board) for implementation 

within the City of Albuquerque and the County of Bernalillo, including research, drafting and 

editing of technical and legal documents, hearing preparation, testifying, and submittal, through 

the New Mexico Records Center and Archives and the New Mexico Environment Department, to 

the U.S. Environmental Protection Agency (EPA) for approval. 

Isreal Tavarez, P.E. Environmental Health Manager, Permitting Division, Air Quality 

Program, Environmental Health Department, City of Albuquerque, New Mexico. M.S. Chemical 

Engineering, New Mexico State University; B.S. Chemical Engineering, NMSU. Registered 

Professional Engineer (New Mexico). Employed by the City of Albuquerque's Environmental 

Health Department, Air Quality Program for 18 years. Previously employed by the State of New 

Mexico, Air Quality Bureau (1994-1996). 

Mr. Tavarez's primary responsibility is to manage the air quality stationary source 

permitting program which includes reviewing and approving all air quality stationary source 

permits to ensure the permits are issued in accordance with local, state and federal regulations. 

Notice of Intent Page 2 of 14 
Damon Reyes. Environmental Health Manager, Enforcement and Compliance Division, Air 

Quality Program, Environmental Health Department, City of Albuquerque, New Mexico. B.S. in 

Environmental Science, College of Santa Fe, May 2001. Trained in extensive array of 

manufacturing and industrial technologies, related air pollution control approaches. Employed by 

City of Albuquerque Environmental Health Department, Air Quality Program, for ten years. 

Previously employed by Air Quality Bureau, New Mexico Environment Department (2002 to 

2005), Pueblo Office of Environmental Protection, All Indian Pueblo Council (2000 to 2002), 

Philips Semiconductor (1998 to 2000). 

Main responsibilities include: overseeing enforcement and compliance actions and bringing 

them to resolution; reviewing inspection reports that have designated a source as out of 

compliance, to determine if an enforcement action can be pursued; drafting penalty calculations 

and notices of violation. 

Dan Gates. Quality Assurance Section Supervisor, Air Quality Program, Environmental 

Health Department, City of Albuquerque, New Mexico. B.A. Architecture, University of New 

Mexico. Employed by the City of Albuquerque for 20 years. Four years with the Wastewater 

Utility Division and 16 years with the Environmental Health Department's Air Quality Program. 

Mr. Gates oversees the Program's quality assurance activities including data quality 

management, data validation, and the monitoring equipment auditing program. Mr. Gates also 

evaluates all the air monitoring data prior to submission to the EPA and works closely with EPA 

Regional staff to ensure that the Air Quality Program's Air Monitoring data meets all applicable 

federal requirements. 

Notice of Intent Page 3 of 14 
3. Summary and Estimated Duration of Testimony 

Mr. Merta's written testimony is attached as AQP Exhibit 4. Presentation of that 

testimony is expected to take ten minutes or less. Mr. Merta will testify that an amended 

20.11.61 NMAC, Prevention ofSignificant Deterioration, as indicated in the Public Review 

Draft, AQP Exhibit 1, should be adopted and be approved for submittal to EPA as a proposed 

revision to the New Mexico State Implementation Plan (SIP). It is estimated that the hearing will 

take one hour or less. The Department is petitioning the Albuquerque - Bernalillo County Air 

Quality Control Board to adopt the amended 20.11.61 NMAC and approve its submittal to EPA 

for the following reasons. 

A. Federal law requires states and local air authorities to adopt a Prevention 

of Signification Deterioration (PSD) permit program. This requirement is contained in: 

the Federal Clean Air Act and the Code of Federal Regulations, as described in the 

Department's petition for rulemaking, shown as AQP Exhibit Ia. To implement a local 

PSD program, the Air Board has promulgated 20.11.61 NMAC, Prevention ofSignificant 

Deterioration. 

B. On April10, 2013, the Air Board approved amendments to 20.11.61 

NMAC, Sections 2, 5, 6, 7, 10, 11, 12, 14, 15, 1S, 20, 23, 24, 27,29 and 30, effective 

May 13, 2013. These amendments were required by several EPA rulemakings related to 

PSD, which revised the Code of Federal Regulations and thus required revisions to the 

SIP. More detailed information on the EPA rulemakings and the Air Board's response is 

included in the Exhibits related to the Board's April 10, 2013 hearing, which are attached 

as AQP Exhibits Sa to Sf. 

Notice of Intent Page 4 of 14 
C. On July 26, 2013, New Mexico Environment Secretary Ryan Flynn 

submitted the amendments to 20.11.61 NMAC to EPA as a proposed SIP revision. 

Secretary Flynn's letter is included with this NOI as AQP Exhibit Sf. EPA review of the 

proposed revision is underway. 

D. In February 2015, EPA informed the Air Quality Program that approval of 

the proposed 2013 SIP revision would depend on three particular amendments to the 

current locally effective version of20.11.61 NMAC. These proposed amendments are 

indicated in EHD's Public Review Draft ofthe amended 20.11.61 NMAC. EPA's reasons 

for requesting the amendments are described in the EPA's communications with EHD, 

shown in AQP Exhibits 2a and 2b. In sum, EPA states that the currently effective 

versions of20.11.61.11(B) and 20.11.61 11(C) NMAC are inconsistent with federal 

regulations found in 40 CFR § 51.166, regarding applicability ofPSD regulations to a 

permitted source. EPA notes that the previous versions of these provisions, prior to the 

Air Board's April2013 amendments, were consistent with federal regulations. The Air 

Quality Program's proposed draft of a revised 20.11.61 will restore the language of 

20.11.61.11(B) and (C) to that ofthe versions in effect prior to the April2013 

amendments. EPA further notes that the currently effective version of20.11.61.7(CCC) 

NMAC includes language inconsistent with a federal court decision made after the 2013 

amendments were approved. That decision, Center for Biological Diversity v. 

Environmental Protection Agency, 722 F.3d 401 (D.C. Cir. 2013), is attached to this NOI 

as AQP Exhibit 9. Per EPA's request, the Air Quality Program's proposed draft of a 

revised 20.11.61 NMAC excises the language pointed to by EPA to bring the regulation 

up to date. 

Notice of Intent Page 5 of 14 
E. EPA attaches particular urgency to submission of an amended 20.11.61 

NMAC as a proposed SIP revision. This urgency is due in part to the need for EPA to 

clear its backlog of proposed local SIP revisions. Revisions to the local PSD regulation 

and their incorporation into the New Mexico SIP are an important component in a multiyear work plan, agreed upon by EHD and EPA, to address EPA's large backlog in SIP 

revisions. In addition to the backlog, another reason for the urgency ofthis proposed SIP 

revision is that the amendments EPA has requested must be made in order for EPA to act 

on three other pending SIP revisions related to 20.11.61 NMAC. One is an Infrastructure 

SIP for the 2010 National Ambient Air Quality Standards (NAAQS) for nitrogen dioxide 

(N02), approved by the Air Board on June 12,2013 and submitted to EPA in July 2013. 

A second pending SIP revision is an Infmstructure SIP for the 2008 NAAQS for lead, 

adopted by the Board on January 11,2012 and submitted to EPA in May 2012. The third 

pending SIP revision that depends on amendment of20.11.61 NMAC is the proposed 

Infrastructure SIP for the 20 I 0 sulfur dioxide NAAQS, presented to the Board in AQCB 

petition 2015-1. EPA's interpretation ofthe Clean Air Act, Section IIO(a)(2), makes 

EPA approval of an Infrastructure SIP conditional on the presence of a fully EPA 

approved PSD permitting program. EPA's policy on this matter is described in its 

guidance to state and local air agencies on preparation of Infrastructure SIP, shown as 

AQP Exhibit 10. 

F. In consultation with EPA, EHD requested that EPA consider the proposed 

amended 20.11.61 NMAC by a procedure known as "parallel processing," provided for 

in Appendix V, Section 2.3 of 40 CFR, Part 51. This process entails EPA reviewing a 

proposed revision to a State Implementation Plan (SIP) simultaneously with state or local 

rulemaking on the proposed revision, rather than, as is typically the case, after the state or 

Notice of Intent Page 6 of 14 
local rulemaking process is complete. EPA utilizes parallel processing for proposed SIP 

revisions that are expected to be non-controversial and will not be further amended 

during the state or local rule-making process. Correspondence related to initiation of EPA 

parallel processing for the proposed amended 20.11.61 NMAC are shown as AQP 

Exhibits 3a, 3b, and 3c. 

G. The rulemaking for adopting the amended 20.11.61 NMAC, Prevention of 

Significant Deterioration, is being carried out in accordance with federal and state 

procedural requirements and with 20.11.82 NMAC, Rulemaking Procedures --Air 

Quality Control Board. Consistent with the provisions of these legal authorities, EHD 

circulated the Public Review Draft, AQP Exhibit 1, attached to EHD's petition for 

rulemaking to the Albuquerque Bernalillo County Air Quality Control Board (Air Board), 

which is shown as AQP Exhibit la. To further demonstrate compliance with procedural 

requirements, EHD is submitting the following exhibits. Notice of the petition is attached 

as AQP Exhibit lb. Draft minutes of the Air Board meeting at which the Air Board 

approved EHD's request for a hearing on the proposed Infrastructure SIP are shown as 

AQP Exhibit 4. Notices of the rulemaking hearing, scheduled for April30, 2015, are 

shown as AQP Exhibits Sa, 5b, and 5c. The draft agenda for the April 30 Air Board 

meeting and hearing is shown as AQP Exhibit 6. 

H. Due to the urgency of this rulemaking, as described above, EHD solicited 

stakeholder comments as part of the rulemaking procedures under 20.11.82 NMAC, 

rather than obtaining stakeholder comments in advance of beginning these rulemaking 

procedures. EHD pursued this approach in consultation with EPA in order to expedite the 

urgent rulemaking at EPA's request. Stakeholders were afforded ample opportunity to 

comment on the proposed amended 20.11.61 NMAC by the following: circulation of the 

Notice of Intent Page 7 of 14 
Public Review Draft attached to EHD's petition to rulemak:ing; legal notice of the 

rulemaking hearing; the holding of the hearing itself, at which members of the public 

may comment. In sending notices of the above rulemak:ing actions, EHD specifically 

notified stakeholders likely to have an interest in amendments to the local PSD 

regulation, including PSD permit holders, environmental consultants and consulting 

organizations, Title V permit holders, and Synthetic Minor sources. 

I. The Department anticipates that the proposed amendments will not have a 

local adverse impact on the regulated community. In part, this is because the proposed 

amendments are procedural, not substantive. They alter language in the regulation to 

align with federal regulations, but they do not require a regulated source to alter its 

behavior. In addition, the PSD regulation, 20.11.61 NMAC, applies only to a very narrow 

category of sources. These sources are: (1) very large sources of potential air pollutant 

emissions; (2) sources that are proposed for new construction, or major new construction 

that will result in a major modification of an existing source, thereby leading to emissions 

potential sufficiently large to trigger PSD requirements; (3) in an area that is in 

attainment for a NAAQS. Because sources meeting these conditions have been rare 

locally, the PSD regulation has rarely been triggered. There have been only two such 

instances. The first was in 1977, when the PSD program was administered locally by the 

EPA. At that time, EPA issued a PSD permit for a construction project that modified an 

existing facility, by building a finish mill at a large cement manufacturing plant in 

Tijeras, New Mexico (currently known as the GCC Rio Grande Inc. -Tijeras Plant). The 

second instance of a PSD permit issued locally was in 1998, for construction of what is 

currently the Rio Bravo Generating Station near Rio Bravo and Broadway Boulevard SE, 

in Albuquerque, owned by Public Service Company ofNew Mexico. 

Notice of Intent Page 8 of 14 
4. Text of Recommended Amendments to 20.11.61 NMAC for Submission to EPA as a 

Proposed Revision to the New Mexico State Implementation Plan 

EHD recommends adoption ofthe proposed amendments to 20.11.61 NMAC, Prevention 

of Significant Deterioration as proposed in the Public Review Draft attached to the petition for 

regulatory change, filed February 20,2015. The petition and Public Review Draft are shown as 

AQP Exhibits 1 and 1a. 

S. List and Description of Exhibits 

The Division has attached the following exhibits to this Notice of Intent: 

Exhibit Number 

AQP Exhibit 1/la/1b 

Title of Exhibit 

{ 1} Public Review Draft, amended 20.11.61 NMAC, Prevention 

of Significant Deterioration; 

{la} Petition to amend 20.11.61 NMAC, Prevention of Significant 

Deterioration, and submit the adopted 20.11.61 NMAC to the U.S. 

Environmental Protection Agency for proposed incorporation into the 

New Mexico State Implementation Plan (SIP), as filed February 20,2015 

{1b} text of email notice ofpetition, sent February 20,2015 to 

"Air Quality Control Board Announce List Serve" and list of stakeholders 

with special interest in PSD program (stakeholder review was conducted 

by seeking comments during rulemaking process under 20.11.82 NMAC, 

Rulemaking Procedures --Air Quality Control Board) 

Notice of Intent Page 9 of 14 
AQP Exhibit 2a 

AQP Exhibit 2b 

AQP Exhibit 3a 

AQP Exhibit 3b 

AQP Exhibit 3c 

AQP Exhibit 4 

EPA letter to EHD, requesting amendments to 20.11.61 NMAC, received 

by U.S. mail February 12, 2015 (this rulemaking originated as request 

from EPA-- thus, EPA review was initiated by EPA rather than by EHD) 

EPA email to EHD, requesting additional amendment to 20.11.61 NMAC, 

received February 17,2015 

EPA email to EHD, describing proposed parallel processing of 

amendments to 20.11.61 NMAC, received February 13,2015 

Letter from Director, City of Albuquerque Environmental Health 

Department, to Ryan Flynn, Cabinet Secretary, New Mexico Environment 

Department, on request to EPA for parallel processing, March 3, 2015 

Letter from Ryan Flynn, Cabinet Secretary, New Mexico Environment 

Department, requesting parallel processing, March 4, 2015 

Draft minutes of Air Quality Control Board Meeting, March 11, 2015 

(during which petition for rulemaking was presented) 

AQP Exhibits 5a/b/c Notices of rulemaking hearing, including: 

{ 5a} Legal advertisement of hearing in Albuquerque Journal, 

3/15/15; 

Notice of Intent Page 10 of 14 
AQP Exhibit 6 

AQP Exhibit 7 

{5b} Legal advertisement ofhearing in New Mexico Register, 

3/16/15; 

{ 5c} text of email notice to "Air Quality Control Board 

Announce" List Serve and to list of stakeholders with special interest in 

PSD program, 3/16/15 

Draft agenda of Air Quality Control Board meeting and hearings, 

scheduled to be held April 30, 2015 

Direct Testimony of Ed Merta, Air Quality Program, in support of 

adoption of amended 20.11.61 NMAC, Prevention of Significant 

Deterioration, to be presented at hearing on AQCB Petition No. 2015-2 

AQP Exhibit 8a to 8f Records related to April2013 rulemaking hearing: 

{8a} Department's Petition for Regulatory Change, filed January 

29, 2013, proposing amendments to 20.11.42 NMAC, Operating Permits, 

20.11.60 NMAC, Permitting in Nonattainment Areas, and 20.11.61 

NMAC, Prevention ofSignificant Deterioration, for submission to EPA as 

proposed revision ofNew Mexico State Implementation Plan; 

{8b} Department's Notice of Intent to Present Technical 

Testimony at April10, 2013 Air Board hearing on AQCB Petition 2013-1, 

as filed March 20, 2013; 

{ 8c} Agenda for Air Quality Control Board meeting and hearings, 

April10, 2013; 

Notice of Intent Page 11 of 14 
AQP Exhibit 9 

AQP Exhibit I 0 

{8d} Direct Testimony ofNeal Butt supporting AQCB Petition 

2013-I, adoption of amended 20.Il.42 NMAC, Operating Permits, 

20.11.60 NMAC, Permitting in Nonattainment Areas, and 20.Il.6I 

NMAC, Prevention ofSignificant Deterioration, delivered at ApriliO, 

2013 Air Board hearing; 

{8e}Minutes of Air Quality Control Board meeting and hearings, 

April IO, 2013; 

{Sf} Letter from Ryan Flynn, Cabinet Secretary, New Mexico 

Environment Department, to Ron Curry, Regional Administrator, U.S. 

Environmental Protection Agency Region 6,, July 26,2013, transmitting 

amended 20.I1.42 NMAC, Operating Permits, 20.1I.60 NMAC, 

Permitting in Nonattainment Areas, and 20.1I.6I NMAC, Prevention of 

Significant Deterioration, as proposed revisions to the New Mexico State 

Implementation Plan 

Decision by Federal Court of Appeals for the D.C. Circuit, vacating EPA's 

"biogas deferral" rule, Center for Biological Diversity v. Environmental 

Protection Agency, 722 F.3d 40I (D.C. Cir. 2013). 

EPA Guidance on Infrastructure State Implementation Plan (SIP) 

Elements under Clean Air Act Sections II 0( a )(I) and II 0( a )(2), 

September 20 I3 

6. Reservation of Rights 

Notice of Intent Page 12 of 14 
This Notice oflntent to Present Technical Testimony is based on the Department's 

Petition for Regulatory Change, filed February 20, 2015.The Department reserves the right to 

call any person to testify and to present any exhibit in response to another notice of intent or 

public comment filed in this matter or to any testimony or exhibit offered at the public hearing. 

The Department also reserves the right to call any person as a rebuttal witness and to present any 

exhibit in support thereof. 

Respectfully submitted, 

~ ~ )__ Y!ltd 

Ed Merta 

Air Quality Regulation Development Coordinator 

Air Quality Program 

Environmental Health Department 

One Civic Plaza, NW, Suite 3023 

Albuquerque, New Mexico 871 03 

(505) 768-2660 

Notice of Intent Page 13 of 14 
CERTIFICATION 

I hereby certify that on April 14, 2015, an original and 15 copies of this Notice oflntent to 

present technical testimony (NO I), with attached exhibits were delivered to the following person 

for filing. 

Andrew Daffern 

Air Quality Control Board Liaison 

Air Quality Division 

Environmental Health Department 

One Civic Plaza, NW, Room 3023 

Albuquerque, New Mexico 87103 

And that on April14, 2015 a copy of this NOI with attached exhibits was sent by email to the 

Attorney for the Board, Felicia Orth. 

~J-tf;(tt Ed Merta 

Air Quality Regulation Development Coordinator 

Air Quality Department 

Environmental Health Department 

Notice of Intent Page 14 of 14 

1 

I TITLE 20 ENVIRONMENTAL PROTECTION , 'r • .I, I . L l, ·-/ 

2 CHAPTER 11 ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY CONTROL BOARD 

3 PART 61 PREVENTION OF SIGNIFICANT DETERI61f.i1JQ~ PH 2: 4 I 

4 

5 20.11.61.1 ISSUING AGENCY: Albuquerque- Bernalillo County Air Quality Control Board. P.O. Box 

6 1293, Albuquerque, NM 87103. Telephone: (505) 768-260 I. 

7 (20.11.61.1 NMAC- Rp, 20.11.61.1 NMAC, 1123/06; A, 8/30/10] 

8 

9 20.11.61.2 SCOPE: Any person constructing any new major stationary source or major modification, as 

I 0 defined in 20.11.61 NMAC, that emits or will emit regulated new source review (NSR) pollutants in an attainment 

11 or unclassifiable area shall obtain a permit from the department in accordance with the requirements of20.11.41 

12 NMAC, Authority-to-Construct, and 20.11.61 NMAC prior to the construction or modification. 

13 A. Exempt: 

14 (I) sources within Bernalillo county which are located on Indian lands over which the AlbuquerqueIS Bernalillo county air quality control board lacks jurisdiction; 

16 (2) each regulated NSR pollutant emitted by a source or modification located in a nonattainment area 

17 for that pollutant; 

18 (3) after a public hearing, consistent with the public notice and participation provisions of 20.11.41 

19 NMAC, Authority-to-Construct, the board may exempt major stationary sources or major modifications if: 

20 (a) the major stationary source would be a nonprofit health or nonprofit educational institution, 

21 or a major modification that would occur at such an institution; or 

22 (b) the source or modification is a portable stationary source which has previously received a 

23 permit pursuant to 20.11.61 NMAC if: 

24 (i) the owner or operator proposes to relocate the source, and emissions from the source 

25 at the new location would be temporary; and 

26 (ii) the emissions from the source would not exceed its allowable emission rate; and 

27 {iii) the emissions from the source would not impact any federal class I area nor any area 

28 where an applicable increment is known to be violated; and 

29 (iv) reasonable notice is given to the department prior to the relocation identifYing the 

30 proposed new location and the probable duration of operation at the new location; such notice shall be given to the 

31 department not less than I 0 days in advance of the proposed relocation unless a different time duration is previously 

32 approved by the department; 

33 (4) sources or modifications that would be major only if quantifiable fugitive emissions are 

34 considered in calculating the potential to emit, and the source does not belong to: 

35 {a) any category in Table I of20.11.61.26 NMAC; or 

36 (b) any other stationary source category which as of August 7, 1980, is being regulated under 

37 Section III or 112 ofthe act. 

38 B. Variances: The director may grant a variance to any person constructing a major stationary 

39 source or major modification from the federal class I maximum allowable increases consistent with the requirements 

40 listed in 40 CFR 52.21 (p)(5). 

41 [20.11.61.2 NMAC- Rp, 20.11.61.2 NMAC, 1/23/06; A, 8/30/10; A, 5/13113] 

42 

43 20.11.61.3 STATUTORY AUTHORITY: 20.11.61 NMAC is adopted pursuant to the authority provided in 

44 the New Mexico Air Quality Control Act, NMSA 1978 Sections 74-2-4 and 74-2-5; the Joint Air Quality Control 

45 Board Ordinance; Bernalillo county Ordinance No. 94-5, Sections 4 and 5; and the Joint Air Quality Control Board 

46 Ordinance, Revised Ordinances of Albuquerque 1994 Sections 9-5-1-3 and 9-5-1-4. 

47 [20.11.61.3 NMAC- Rp, 20.11.61.3 NMAC, 1123/06] 

48 

49 20.11.61.4 DURATION: Permanent. 

50 [20.11.61.4 NMAC - Rp, 20.11.61.4 NMAC, I /23/06] 

51 

52 20.11.61.5 EFFECTIVE DATE: January 23, 2006, unless a later date is cited at the end ofa section. 

53 [20.11.61.5 NMAC- Rp, 20.11.61.5 NMAC, 1123/06; A, 5/13/13] 

54 

20.11.61 NMAC Public Review Draft 2120/2015 
I 20.11.61.6 OBJECTIVE: To minimize air pollutant emissions from new major stationary sources or major 

2 modifications in areas classified as in attainment ofthe national ambient air quality standards (NAAQS) or 

3 determined to be unclassifiable pursuant to Section 1 07( d) of the act. 

4 [20.11.61.6 NMAC- Rp, 20.11.61.6 NMAC, 1/23/06; A, 1/10111; A, 5/13/13] 

5 

6 20.1 1.61. 7 DEFINITIONS: In addition to the definitions in 20.11.61 NMAC, the definitions in 20.11.1 

7 NMAC, General Provisions, shall apply unless there is a conflict between definitions, in which case the definition in 

8 20.11.61 NMAC shall govern. 

9 A. "Act" means the federal Clean Air Act, as amended, 42 U.S. C. Sections 7401 et seq. 

l 0 B. "Actual emissions" means the actual rate of emissions of a regulated NSR pollutant from an 

ll emissions unit, as determined in accordance with Paragraphs (2) through (4) of Subsection B of20.11.61.7 NMAC. 

12 (I) This definition shall not apply for calculating whether a significant emissions increase has 

13 occurred, or for establishing a PAL under 20.11.61.20 NMAC. Instead, Subsections I and VV of20.11.61.7 NMAC 

14 shall apply for those purposes. 

15 (2) In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at 

16 which the unit actually emitted the pollutant during a consecutive 24-month period which precedes the particular 

17 date and which is representative of normal source operation. The department shall allow the use of a different time 

18 period upon a determination that it is more representative of normal source operation. Actual emissions shall be 

19 calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or 

20 combusted during the selected time period. 

21 (3) The department may presume that source-specific allowable emissions for the unit are equivalent 

22 to the actual emissions of the unit 

23 (4) For any emissions unit that has not begun normal operations on the particular date, actual 

24 emissions shall equal the potential to emit of the unit on that date. 

25 C. "Administrator" means the administrator of the U.S. environmental protection agency (EPA) or 

26 an authorized representative. 

27 D. "Adverse impact on visibility" means visibility impairment which interferes with the 

28 management, protection, preservation, or enjoyment of the visitor's visual experience of the federal class I area. 

29 This determination must be made on a case-by-case basis taking into account the geographic extent, intensity, 

30 duration, frequency, and time of the visibility impairments and how these factors correlate with the following: 

31 (I) times of visitor use of the federal class I area; and 

32 (2) the frequency and timing of natural conditions that reduce visibility. This term does not include 

33 effects on integral vistas as defined in 40 CFR 51.30 I Definitions. 

34 E. "Air quality related values (AQRV)" means visibility and other scenic, cultural, physical, 

35 biological, ecological, or recreational resources which may be affected by a change in air quality resulting from the 

36 emissions of a proposed major stationary source or major modification that interferes with the management, 

37 protection, preservation, or enjoyment ofthe AQRV of a federal class I area. 

38 F. "Allowable emissions" means the emissions rate of a stationary source calculated using the 

39 maximum rated capacity of the source (unless the source is subject to federally enforceable limits which restrict the 

40 operating rate, or hours of operation, or both) and the most stringent of the following: 

41 (I) the applicable standards as set forth in 40 CFR Parts 60 and 61; 

42 (2) the applicable state implementation plan emissions limitation, including those with a future 

43 compliance date; or 

44 (3) the emissions rate specified as a federally enforceable permit condition, including those with a 

45 future compliance date. 

46 G. "Associated emission sources" means secondary emissions and all reasonably foreseeable 

47 emissions ofregulated pollutants from the growth of general residential, commercial, industrial, governmental 

48 emission sources and other mobile and non-mobile emission sources which are associated with or support the 

49 proposed new major stationary source or major modification. Other mobile and non-mobile emission sources shall 

50 include, but not be limited to, new highways and roads or improvements to existing highways and roads to increase 

51 capacity, new parking facilities or improvements to existing parking facilities to increase capacity, service 

52 enhancements to ground and air public transportation to include the building of new public transportation facilities 

53 or improvements to existing public transportation facilities to increase capacity; and the building of new public or 

54 private educational facilities or improving existing public or private educational facilities to increase enrollment. 

20.1 1.61 NMAC Public Review Draft2/20/2015 2 
I H. "Attainment area" means, for any air pollutant, an area which is shown by monitored data or 

2 which is calculated by air quality modeling not to exceed any NAAQS for such pollutant, and is so designated under 

3 Section I 07(d)(I)(D) or (E) of the act. 

4 I. "Baseline actual emissions" means the rate of emissions, in tons per year, of a regulated NSR 

5 pollutant, as determined in accordance with Paragraphs (I)-(4) ofSubsection I of20.11.61.7 NMAC. 

6 (I) For any existing electric utility steam generating unit, baseline actual emissions means the 

7 average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-month 

8 period selected by the owner or operator within the five year period immediately preceding when the owner or 

9 operator begins actual construction of the project. The department shall allow the use of a different time period 

I 0 upon a determination that it is more representative of normal source operation. 

II (a) The average rate shall include fugitive emissions to the extent quantifiable, and emissions 

12 associated with startups, shutdowns, and malfunctions. 

13 (b) The average rate shall be adjusted downward to exclude any non-compliant emissions that 

14 occurred while the source was operating above an emission limitation that was legally enforceable during the 

15 consecutive 24-month period. 

16 (c) For a regulated NSR pollutant, when a project involves multiple emissions units, only one 

17 consecutive 24-month period must be used to determine the baseline actual emissions for the emissions units being 

18 changed. A different consecutive 24-month period can be used for each regulated NSR pollutant. 

19 (d) The average rate shall not be based on any consecutive 24-month period for which there is 

20 inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required 

21 by Subparagraph (b) of Paragraph (I) of Subsection I of 20.11.61. 7 NMAC. 

22 (2) For an existing emissions unit (other than an electric utility steam generating unit), baseline actual 

23 emissions means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during 

24 any consecutive 24-month period selected by the owner or operator within the I 0 year period immediately preceding 

25 either the date the owner or operator begins actual construction of the project, or the date a complete permit 

26 application is received by the department for a permit required either under 20.11.61 NMAC or under a plan 

27 approved by the administrator, whichever is earlier, except that the I 0 year period shall not include any period 

28 earlier than November 15, 1990. 

29 (a) The average rate shall include fugitive emissions to the extent quantifiable, and emissions 

30 associated with startups, shutdowns, and malfunctions. 

31 (b) The average rate shall be adjusted downward to exclude any non-compliant emissions that 

32 occurred while the source was operating above an emission limitation that was legally enforceable during the 

33 consecutive 24-month period. 

34 (c) The average rate shall be adjusted downward to exclude any emissions that would have 

35 exceeded an emission limitation with which the major stationary source must currently comply, had such major 

36 stationary source been required to comply with such limitations during the consecutive 24-month period. However, 

37 if an emission limitation is part of a maximum achievable control technology standard that the administrator 

38 proposed or promulgated under 40 CFR Part 63, the baseline actual emissions need only be adjusted if the state has 

39 taken credit for such emissions reductions in an attainment demonstration or maintenance plan consistent with the 

40 requirements of 40 CFR 51.165(a)(3)(ii)(G). 

41 (d) For a regulated NSR pollutant, when a project involves multiple emissions units, only one 

42 consecutive 24-month period must be used to determine the baseline actual emissions for the emissions units being 

43 changed. A different consecutive 24-month period can be used for each regulated NSR pollutant. 

44 (e) The average rate shall not be based on any consecutive 24-month period for which there is 

45 inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required 

46 by Subparagraphs (b) and (c) of Paragraph (2) of Subsection I of20.11.61.7 NMAC. 

47 (3) For a new emissions unit, the baseline actual emissions for purposes of determining the emissions 

48 increase that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for 

49 all other purposes, shall equal the unit's potential to emit. 

50 (4) For a PAL for a stationary source, the baseline actual emissions shall be calculated for existing 

51 electric utility steam generating units in accordance with the procedures contained in Paragraph (I) of Subsection I 

52 of20.11.61.7 NMAC, for other existing emissions units in accordance with the procedures contained in Paragraph 

53 (2) of Subsection I of20.11.61.7 NMAC, and for a new emissions unit in accordance with the procedures contained 

54 in Paragraph (3) of Subsection I of20.11.61.7 NMAC. 

55 J. "Baseline area" 

20.11.61 NMAC Public Review Draft 2/20/2015 3 
1 (l) Means any intrastate area (and every part thereof) designated as attainment or unclassifiable under 

2 Section 107(d)(IXA)(ii) or (iii) of the act in which the major source or major modification establishing the minor 

3 source baseline date would construct or would have an air quality impact for the pollutant for which the baseline 

4 date is established, as follows: equal to or greater than one microgram per cubic meter (I )!g/m3

) (annual average) 

5 for 801, N02 or PM10; or equal to or greater than 0.3 J.1g/m3 (annual average) for PM2.

5• 

6 (2) Area redesignations under Section 107(d)(I)(A)(ii) or (iii) of the act cannot intersect or be smaller 

7 than the area of impact of any major stationary source or major modification which: 

8 (a) establishes a minor source baseline date; or 

9 (b) is subject to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR 51.166, and 

10 would be constructed in the same state as the state proposing the redesignation. 

11 {3) Any baseline area established originally for total suspended particulates (TSP) increments shall 

12 remain in effect and shall apply for purposes of determining the amount of available PM10 increments, except that 

13 such baseline area shall not remain in effect if the department rescinds the corresponding minor source baseline date 

14 in accordance with Paragraph (3) of Subsection MM of20.11.61.7 NMAC. 

15 K. "Baseline concentration" means that ambient concentration level that exists in the baseline area 

16 at the time of the applicable minor source baseline date. 

17 (I) A baseline concentration is determined for each pollutant for which a minor source baseline date 

18 is established and shall include: 

19 (a) the actual emissions representative of sources in existence on the applicable minor source 

20 baseline date, except as provided in Paragraph (2) of Subsection K of20.11.61.7 NMAC; 

21 (b) the allowable emissions of major stationary sources that commenced construction before 

22 the major source baseline date, but were not in operation by the applicable minor source baseline date. 

23 (2) The following will not be included in the baseline concentration and will affect the applicable 

24 maximum allowable increase(s): 

25 (a) actual emissions from any major stationary source on which construction commenced after 

26 the major source baseline date; and 

27 (b) actual emissions increases and decreases at any stationary source occurring after the minor 

28 source baseline date. 

29 L. "Begin actual construction" means, in general, the initiation of physical onsite construction 

30 activities on an emissions unit which are of a permanent nature. Such activities include, but are not limited to, 

31 installation of building supports and foundations, laying of underground pipework and construction of permanent 

32 storage structures. With respect to a change in method of operation, this term refers to those on-site activities, other 

33 than preparatory activities which mark the initiation of the change. 

34 M. "Best available control technology (BACT)" means an emissions limitation {including a visible 

35 emission standard) based on the maximum degree of reduction for each regulated NSR pollutant which would be 

36 emitted from any proposed major stationary source or major modification, which the director on a case-by-case 

37 basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable 

38 for such source or modification through application of production processes or available methods, systems, and 

39 techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such 

40 pollutant. In no event shall application of best available control technology result in emissions of any pollutant 

41 which would exceed the emissions allowed by any applicable standard under 40 CFR Parts 60 and 61. If the 

42 director determines that technological or economic limitations on the application of measurement methodology to a 

43 particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment, work 

44 practice, operational standard, or combination thereof, may be prescribed instead to satisfy the requirement for the 

45 application of best available control technology. Such standard shall, to the degree possible, set forth the emissions 

46 reduction achievable by implementation of such design, equipment, work practice, or operation, and shall provide 

47 for compliance by means which achieve equivalent results. 

48 N. "Building, structure, facility or installation" means all of the pollutant emitting activities which 

49 belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under 

50 the control of the same person (or persons under common control) except the activities of any vessel. Pollutant51 emitting activities shaH be considered as part of the same industrial grouping if they belong to the same "major 

52 group" (i.e., which have the same first two-digit code) as described in the standard industrial classification (SIC) 

53 manual, 1972, as amended by the 1977 supplement (U.S. government printing office stock numbers 4101-0066 and 

54 003-005-00176-0, respectively) or any superseding SIC manual. 

55 0. "Class I area" means any federal land that is classified or reclassified as "class I" as listed in 

56 20.11.61.25 NMAC. 

20.1 !.61 NMAC Public Review Draft 2/20/2015 4 
I P. "Commence" as applied to construction of a major stationary source or major modification, 

2 means that the owner or operator has all necessary preconstruction approvals or permits and either has: 

3 (I) begun, or caused to begin, a continuous program of actual on-site construction of the source, to be 

4 completed within a reasonable time; or 

5 (2) entered into binding agreements or contractual obligations, which cannot be cancelled or modified 

6 without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be 

7 completed within a reasonable time. 

8 Q. "Complete" means, in reference to an application for a permit, that the department has determined 

9 the application contains all of the information necessary for processing the application. Designating an application 

10 complete for purposes of permit processing does not preclude the department from requesting or accepting any 

11 additional information. 

12 R. "Construction" means any physical change or change in the method of operation (including 

13 fabrication, erection, installation, demolition, or modification of an emissions unit) that would result in a change in 

14 emissions. 

15 S. "Continuous emissions monitoring system (CEMS)" means all of the equipment that may be 

16 required to meet the data acquisition and availability requirements of20.11.61 NMAC, to sample, condition (if 

17 applicable), analyze, and provide a record of emissions on a continuous basis. 

18 T. "Continuous emissions rate monitoring system (CERMS)" means the total equipment required 

19 for the determination and recording of the pollutant mass emissions rate (in terms of mass per unit of time). 

20 U. "Continuous parameter monitoring system (CPMS}" means all of the equipment necessary to 

21 meet the data acquisition and availability requirements of 20.1 1.61 NMAC, to monitor process and control device 

22 operational parameters (for example, control device secondary voltages and electric currents) and other information 

23 (for example, gas flow rate, 0 2 or C02 concentrations), and to record average operational parameter value(s) on a 

24 continuous basis. 

25 V. "Department" means the city of Albuquerque, environmental health department or its successor 

26 agency. 

27 W. "Director" means the director of the city of Albuquerque, environmental health department or the 

28 director of its successor agency. 

29 X. "Electric utility steam generating unit" means any steam electric generating unit that is 

30 constructed for the purpose of supplying more than one-third ofits potential electric output capacity and more than 

31 25 megawatts electrical output to any utility power distribution system for sale. Any steam supplied to a steam 

32 distribution system for the purpose of providing steam to a steam-electric generator that would produce electrical 

33 energy for sale is also considered in determining the electrical energy output capacity of the affected facility. 

34 Y. "Emissions unit" means any part of a stationary source that emits or would have the potential to 

35 emit any regulated NSR pollutant and includes an electric utility steam generating unit as defined in 20.11.61.7 

36 NMAC. For purposes of20.11.61 NMAC, there are two types of emissions units as follows: 

37 (I) a new emissions unit is any emissions unit that is (or will be) newly constructed and that has 

38 existed for less than two years from the date such emissions unit first operated; 

39 (2) an existing emissions unit is any emissions unit that does not meet the requirements in Paragraph 

40 (I) of Subsection Y of20.11.61.7 NMAC. A replacement unit is an existing unit. 

41 Z. "Federal land manager" means, with respect to any lands in the United States, a federal level 

42 cabinet secretary of a federal level department (e.g. interior department) with authority over such lands. 

43 AA. "Federally enforceable" means all limitations and conditions which are enforceable by the 

44 administrator, including: 

45 (I) those requirements developed pursuant to 40 CFR Parts 60 and 61; 

46 (2) requirements within any applicable state implementation plan (SIP); 

47 (3) any permit requirements established pursuant to 40 CFR 52.21; or 

48 (4) under regulations approved pursuant to 40 CFR Part 51, Subpart I, including operating permits 

49 issued under an EPA·approved program that expressly requires adherence to any permit issued under such program. 

50 88. "Fugitive emissions" means those emissions which could not reasonably pass through a stack, 

51 chimney, vent, or other functionally equivalent opening. 

52 CC. "Greenhouse gases" or "GHGs" means the air pollutant defined in § 86.1818-l2(a) of Chapter I 

53 of'I'itle 40 of the CFR, as the aggregate group of six greenhouse gases: carbon dioxide, nitrous oxide, methane, 

54 hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. 

55 DD. "High terrain" means any area having an elevation 900 feet or more above the base of a source's 

56 stack. 

20.11.61 NMAC Public Review Draft 2/20/2015 5 
I EE. "Indian governing body" means the governing body of any tribe, band, or group of Indians 

2 subject to the jurisdiction of the United States and recognized by the United States as possessing power of self3 government. 

4 FF. "Innovative control technology" means any system of air pollution control that has not been 

5 adequately demonstrated in practice, but would have a substantial likelihood of achieving greater continuous 

6 emissions reduction than any control system in current practice or achieving at least comparable reductions at lower 

7 cost in tenns of energy, economics, or non-air quality environmental impacts. 

8 GG. "Low terrain" means any area other than high terrain. 

9 HH. "Lowest achievable emission rate (LAER)" means, for any source, the more stringent rate of 

I 0 emissions based on the following: 

II (1) the most stringent emissions limitation which is contained in the implementation plan of any state 

12 for such class or category of stationary source, unless the owner or operator of the proposed stationary source 

13 demonstrates that such limitations are not achievable; or 

14 (2) the most stringent emissions limitation which is achieved in practice by such class or category of 

I 5 stationary source; this limitation, when applied to a modification, means the lowest achievable emissions rate for the 

16 new or modified emissions units within the stationary source; in no event shall the application of this tenn permit a 

17 proposed new or modified stationary source to emit any pollutant in excess of the amount allowable under an 

18 applicable new source standard of performance. 

19 II. "Major modification" 

20 (I) Means any physical change in or change in the method of operation of a major stationary source 

21 that would result in: a significant emissions increase of a regulated NSR pollutant; and a significant net emissions 

22 increase of that pollutant from the major stationary source. 

23 (2) Any significant emissions increase from any emissions units or net emissions increase at a major 

24 stationary source that is significant for volatile organic compounds or oxides of nitrogen shall be considered 

25 significant for ozone. 

26 (3) A physical change or change in the method of operation shall not include: 

27 (a) routine maintenance, repair, and replacement; 

28 (b) use of an alternative fuel or raw material by reason of an order under Section 2(a) and (b) of 

29 the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a 

30 natural gas curtailment plan pursuant to the Federal Power Act; 

31 (c) use of an alternative fuel by reason of an order or rule under Section 125 of the act; 

32 (d) use of an alternative fuel at a steam generating unit to the extent that the fuel is generated 

33 from municipal solid waste; 

34 (e) use of an alternative fuel or raw material by a stationary source which: 

35 (i) the source was capable of accommodating before January 6, 1975, unless such change 

36 would be prohibited under any federally enforceable permit condition which was established after January 6, 1975 

37 pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR Subpart I or 40 CFR 51.166; or 

38 (ii) the source is approved to use under any permit issued under 40 CFR 52.21 or under 

39 regulations approved pursuant to 40 CFR 51.166; 

40 (f) an increase in the hours of operation or in the production rate, unless such change would be 

41 prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 

42 40 CFR 52.21 or under regulations approved pursuant to 40 CFR Subpart I or 40 CFR 51.166; 

43 (g) any change in ownership at a stationary source; 

44 (h) the installation, operation, cessation, or removal of a temporary clean coal technology 

45 demonstration project, provided that the project complies with: 

46 (i) the state implementation plan for the state in which the project is located; and 

47 (ii) other requirements necessary to attain and maintain the NAAQS during the project 

48 and after it is tenninated; 

49 (i) the installation or operation of a permanent clean coal technology demonstration project that 

50 constitutes repowering, provided that the project does not result in an increase in the potential to emit of any 

51 regulated NSR pollutant emitted by the unit; this exemption shall apply on a pollutant-by-pollutant basis; or 

52 (j) the reactivation of a very clean coal-fired electric utility steam generating unit. 

53 (4) This definition shall not apply with respect to a particular regulated NSR pollutant when the 

54 major stationary source is complying with the requirements under 20.11.61.20 NMAC for a PAL for that pollutant 

55 Instead, the definition at Paragraph (8) of Subsection B of20.1 1.61.20 NMAC shall apply. 

56 JJ. "Major source baseline date" means: 

20.11.61 NMAC Public Review Draft 2/20/2015 6 
1 (1) in the case of PM10 and sulfur dioxide, January 6, 1975; 

2 (2) in the case of nitrogen dioxide, February 8, 1988; and 

3 (3) in the case of PM25, October 20, 2010. 

4 KK. "Major stationary source" 

5 (I) means: 

6 (a) any stationary source listed in Table I of 20.11.61.26 NMAC which emits, or has the 

7 potential to emit, 100 tons per year or more of any regulated NSR pollutant; 

8 (b) notwithstanding the stationary source categories specified in Subparagraph (a) of Paragraph 

9 (I) of Subsection KK of 20.11.61. 7 NMAC, any stationary source which emits, or has the potential to emit, 250 tons 

I 0 per year or more of any regulated NSR pollutant; or 

11 (c) any physical change that would occur at a stationary source not otherwise qualifying under 

12 Subsection KK of20.11.61.7 NMAC, as a major stationary source if the change would constitute a major stationary 

13 source by itself. 

14 (2) A major source that is major for volatile organic compounds or oxides of nitrogen shall be 

15 considered major for ozone. 

16 (3) The fugitive emissions of a stationary source shall not be included in determining whether it is a 

17 major stationary source, unless the source belongs to one of the stationary source categories found in Table I of 

18 20.11.61.26 NMAC or any other stationary source category which, as of August 7, 1980, is being regulated under 

19 Section Ill or 112 ofthe act. 

20 LL. "Mandatory federal class I area" means any area identified in 40 CFR Part 81, Subpart D. 

21 MM. "Minor source baseline date" means the earliest date after the trigger date on which a major 

22 stationary source or major modification subject to 40 CFR 52.21, or to regulations approved pursuant to 40 CFR 

23 51.166, submits a complete application under the relevant regulations. 

24 (1) The trigger dates are: 

25 (a) August 7, 1977, for PM10 and sulfur dioxide; and 

26 (b) February 8, 1988 for nitrogen dioxide; and 

27 (c) October20,20ll,forPM25. 

28 (2) The baseline date is established for each pollutant for which increments or other equivalent 

29 measures have been established if: 

30 (a) the area in which the proposed major stationary source or major modification would 

31 construct is designated as attainment or unclassifiable under Section 1 07( d)(l )(A)(ii) or (iii) of the federal act for the 

32 pollutant on the date of its complete application under 40 CFR 52.21 or under regulations approved pursuant to 40 

33 CFR 51.166; and 

34 (b) in the case of a major stationary source, the pollutant would be emitted in significant 

35 amounts, or in the case of a major modification, there would be a significant net emissions increase of the pollutant. 

36 (3) Any minor source baseline date established originally for the TSP increments shall remain in 

37 effect and shall apply for purposes of determining the amount of available PM10 increments, except that the 

38 department may rescind any such minor source baseline date where it can be shown, to the director's satisfaction 

39 that, either the emissions increase from the major stationary source, or the net emissions increase from the major 

40 modification, responsible for triggering. that date did not result in a significant amount of PM10 emissions. 

41 NN. "Natural conditions" includes naturally occurring phenomena that reduce visibility as measured 

42 in terms of visual range, contrast or coloration. 

43 00. "Necessary preconstruction approvals or permits" mean those permits or approvals required 

44 under federal air quality control laws and regulations and those air quality control laws and regulations which are 

45 part of the New Mexico state implementation plan. 

46 PP. "Net emissions increase" 

47 (I) Means, that with respect to any regulated NSR pollutant emitted by a major stationary source, the 

48 amount by which the sum of the following exceeds zero: 

49 (a) the increase in emissions from a particular physical change or change in the method of 

50 operation at a stationary source as calculated pursuant to Subsection D of 20.11.61.11 NMAC; and 

51 (b) any other increases and decreases in actual emissions at the major stationary source that are 

52 contemporaneous with the particular change and are otherwise creditable; baseline actual emissions for calculating 

53 increases and decreases shall be determined as provided in Subsection I of 20.11.61. 7 NMAC, except that 

54 Subparagraph (c) of Paragraph (I) and Subparagraph (d) of Paragraph (2) of Subsection I of20.11.61.7 NMAC shall 

55 not apply. 

20.11.61 NMAC Public Review Draft 2/20/2015 7 
1 (2) An increase or decrease in actual emissions is contemporaneous with the increase from the 

2 particular change only if it occurs between: 

3 (a) the date five years prior to the commencement of construction on the particular change; and 

4 (b) the date that the increase from the particular change occurs. 

5 (3) An increase or decrease in actual emissions is creditable only if: 

6 (a) it occurs between: 

7 (i) the date five years prior to the commencement of construction on the particular 

8 change; and 

9 (ii) the date that the increase from the particular change occurs; and 

10 (b) the department has not relied on it in issuing a permit for the source under regulations 

I 1 approved pursuant to 40 CFR 51.166, which permit is in effect when the increase in actual emissions from the 

12 particular change occurs; and 

13 (c) the increase or decrease in emissions did not occur at a clean unit, as defined in 40 CFR 

14 51.166 (b)(3)(iii)(c) and Federal Register Vol. 76 No. 61,3/30/11, p. 17554. 

15 (d) As it pertains to an increase or decrease in fugitive emissions (to the extent quantifiable), it 

16 occurs at an emissions unit that is part of one of the source categories listed in Paragraph (3) of Subsection KK of 

17 20.1 1 .61. 7 NMAC or it occurs at an emission unit that is located at a major stationary source that belongs to one of 

18 the listed source categories. Fugitive emission increases or decreases are not included for those emissions units 

19 located at a facility whose primary activity is not represented by one of the source categories listed in Paragraph (3) 

20 of Subsection KK of 20.11.61 .7 NMAC and that are not, by themselves, part of a listed source category. 

21 (4) An increase or decrease in actual emissions of sulfur dioxide, particulate matter, or oxides of 

22 nitrogen that occurs before the applicable minor source baseline date is creditable only if it is required to be 

23 considered in calculating the amount of maximum allowable increases remaining available. 

24 (5) An increase in actual emissions is creditable only to the extent that the new level of actual 

25 emissions exceeds the old level. 

26 (6) A decrease in actual emissions is creditable only to the extent that: 

27 (a) the old level of actual emissions or the old level of allowable emissions, whichever is lower, 

28 exceeds the new level of actual emissions; 

29 (b) it is enforceable as a practical matter at and after the time that actual construction on the 

30 particular change begins; and 

31 (c) it has approximately the same qualitative significance for public health and welfare as that 

32 attributed to the increase from the particular change; and 

33 (7) an increase that results from a physical change at a source occurs when the emissions unit on 

34 which construction occurred becomes operational and begins to emit a particular pollutant; any replacement unit that 

35 requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days. 

36 (8) Paragraph (2) of Subsection B of20. 1 1 .61.7 NMAC shall not apply for determining creditable 

37 increases and decreases. 

38 QQ. "Nonattainment area" means an area which has been designated under Section I 07 of the act as 

39 nonattainment for one or more of the NAAQS by EPA. 

40 RR. "Portable stationary source" means a source which can be relocated to another operating site 

41 with limited dismantling and reassembly. 

42 SS. "Potential to emit" means the maximum capacity of a stationary source to emit a pollutant under 

43 its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a 

44 pollutant, including air pollutant control equipment and restrictions on hours of operation or on the type or amount 

45 of material com busted, stored, or processed, shall be treated as part of its design if the limitations or the effect the 

46 limitation would have on emissions is federally enforceable. Secondary emissions do not count in determining the 

47 potential to emit of a stationary source. 

48 TT. "Predictive emissions monitoring system (PEMS)" means all of the equipment necessary to 

49 monitor process and control device operational parameters (for example, control device secondary voltages and 

50 electric currents) and other infonnation (for example, gas flow rate, 0 2 or C02 concentrations), and calculate and 

51 record the mass emissions rate (for example, lblhr) on a continuous basis. 

52 UU. "Project" means a physical change in, or change in method of operation of, an existing major 

53 stationary source. 

54 VV. "Projected actual emissions" 

55 (I) Means the maximum annual rate, in tons per year, at which an existing emissions unit is projected 

56 to emit a regulated NSR pollutant in any one of the five years (12-month period) following the date the unit resumes 

20~11.61 NMAC Public Review Draft 2120/2015 8 
1 regular operation after the project, or in any one of the I 0 years following that date, if the project involves increasing 

2 the emissions unit's design capacity or its potential to emit that regulated NSR pollutant, and full utilization of the 

3 unit would result in a significant emissions increase, or a significant net emissions increase at the major stationary 

4 source. 

5 (2) In determining the projected actual emissions (before beginning actual construction), the owner or 

6 operator of the major stationary source: 

7 (a) shall consider all relevant information, including but not limited to, historical operational 

8 data, the company's own representations, the company's expected business activity and the company's highest 

9 projections of business activity, the company's filings with the state or federal regulatory authorities, and 

10 compliance plans under an approved SIP; and 

11 (b) shall include fugitive emissions to the extent quantifiable and emissions associated with 

12 startups, shutdowns, and malfunctions; and 

13 (c) shall exclude, in calculating any increase in emissions that results from the particular 

14 project, that portion of the unit's emissions following the project that an existing unit could have accommodated 

15 during the consecutive 24-month period used to establish the baseline actual emissions under Subsection I of 

16 20.11.61. 7 NMAC and that are also unrelated to the particular project, including any increased utilization due to 

17 product demand growth; or 

18 (3) in lieu of using the method set out in Subparagraphs (a)-( c) of Paragraph (2) of Subsection VV of 

19 20.11.61.7 NMAC, may elect to use the emissions unit's potential to emit in tons per year. 

20 WW. "Regulated new source review pollutant" or "regulated NSR pollutant" means the following: 

21 (I) any pollutant for which a NAAQS has been promulgated; this includes, but is not limited to the 

22 following: 

23 (a) PM2.s emissions and PM10 emissions shall include gaseous emissions from a source or 

24 activity which condense to form particulate matter at ambient temperatures; on or after January I, 2011, such 

25 condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions 

26 limitations for PM2.s and PM10 in PSD permits; compliance with emissions limitations for PM2.s and PM10 issued 

27 prior to this date shall not be based on condensable particulate matter unless required by the terms and conditions of 

28 the permit or the applicable implementation plan; applicability determinations made prior to this date without 

29 accounting for condensable particulate matter shall not be considered in violation of 40 CFR 51.166 unless the 

30 applicable implementation plan required condensable particulate matter to be included; 

31 (b) any pollutant identified under Subparagraph (b) of Paragraph ( 1) of Subsection WW of 

32 20.11.61.7 NMAC as a constituent or precursor to a pollutant for which a NAAQS has been promulgated; precursors 

33 identified by the administrator for purposes ofNSR are the following: 

34 (i) volatile organic compounds and nitrogen oxides are precursors to ozone in all 

35 attainment and unclassifiable areas; 

36 (ii) sulfur dioxide is a precursor to PM2.s in all attainment and unclassifiable areas; 

37 (iii) nitrogen oxides are presumed to be precursors to PM2.s in all attainment and 

38 unclassifiable areas, unless the state demonstrates to the administrator's satisfaction or EPA demonstrates that 

39 emissions of nitrogen oxides from sources in a specific area are not a significant contributor to that area's ambient 

40 PM 2.5 concentrations; 

41 (iv) volatile organic compounds are presumed not to be precursors to PM2.s in any 

42 attainment or unclassifiable area, unless the state demonstrates to the administrator's satisfaction or EPA 

43 demonstrates that emissions of volatile organic compounds from sources in a specific area are a significant 

44 contributor to that area's ambient PM2.s concentrations; 

45 (2) any pollutant that is subject to any standard promulgated under Section Ill of the act; 

46 (3) any class I or II substance subject to a standard promulgated under or established by Title VI of 

47 the act; 

48 (4) any pollutant that otherwise is "subject to regulation" underthe act as defined in Subsection CCC 

49 of 20.11.61 .7 NMAC; 

50 (5) notwithstanding Paragraphs (1) through (4) of Subsection WW of20.11.61.7 NMAC, the term 

51 "regulated NSR pollutant" shall not include any or all hazardous air pollutants either listed in Section 112 of the act, 

52 or added to the list pursuant to Section 112(b)(2) of the act, and which have not been delisted pursuant to Section 

53 112(b)(3) of the act, unless the listed hazardous air pollutant is also regulated as a constituent or precursor of a 

54 general pollutant listed under Section 108 of the act; 

55 (6) particulate matter (PM) emissions, PM25 emissions, and PM10 emissions shall include gaseous 

56 emissions from a source or activity which condense to form particulate matter at ambient temperatures; on or after 

20.11.61 NMAC Public Review Draft 2/20/2015 9 
I January 1, 2011 (or any earlier date established in the upcoming rulemaking codifying test methods), such 

2 condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions 

3 limitations for PM, PM2..s and PM10 in PSD permits; compliance with emissions limitations for PM, PM2., and PM10 

4 issued prior to this date shall not be based on condensable particulate matter unless required by the terms and 

5 conditions of the permit or the applicable implementation plan; applicability determinations made prior to this date 

6 without accounting for condensable particulate matter shall not be considered in violation of20.11.61 NMAC unless 

7 the applicable implementation plan required condensable particulate matter to be included. 

8 XX. "Replacement unit" means an emission unit for which all of the following criteria are met. No 

9 creditable emission reductions shall be generated from shutting down the existing emissions unit that is replaced. 

10 (1) The emissions unit is a reconstructed unit within the meaning of 40 CFR 60.15(bXl), or the 

II emissions unit completely takes the place of an existing emissions unit. 

12 (2) The emissions unit is identical to or functionally equivalent to the replaced emissions unit. 

13 (3) The replacement unit does not change the basic design parameter(s) of the process unit. 

14 (4) The replaced emissions unit is permanently removed from the major stationary source, otherwise 

15 permanently disabled, or permanently barred from operation by a permit that is enforceable as a practical matter. If 

16 the replaced emissions unit is brought back into operation, it shall constitute a new emissions unit. 

17 YY. "Secondary emissions" means emissions which occur as a result of the construction or operation 

18 of a major stationary source or major modification, but do not come from the major stationary source or major 

19 modification itself. For the purpose of 40 CFR 51.166, secondary emissions must be specific, well defined, 

20 quantifiable, and impact the same general areas as the stationary source or modification which causes the secondary 

21 emissions. Secondary emissions include emissions from any offsite support facility which would not be constructed 

22 or increase its emissions except as a result of the construction or operation of the major stationary source or major 

23 modification. Secondary emissions do not include any emissions which come directly from a mobile source, such as 

24 emissions from the tailpipe of a motor vehicle, from a train, or from a vessel. 

25 ZZ. "Significant" means: 

26 ( 1) in reference to a net emissions increase or the potential of a source to emit any of the pollutants 

27 listed in Table 2 of20.11.61.27 NMAC, a rate of emissions that would equal or exceed any of the corresponding 

28 emission rates listed in Table 2 of20.11.61.27 NMAC; 

29 (2) in reference to a net emissions increase or the potential of a source to emit a regulated NSR 

30 pollutant that Paragraph (I) of Subsection ZZ of20.11.61.7 NMAC, does not list, any emissions rate; and 

31 (3) notwithstanding Paragraph (1) of Subsection ZZ of20.1 1.61.7 NMAC, any emissions rate or any 

32 net emissions increase associated with a major stationary source or major modification, which would construct 

33 within I 0 kilometers of a class I area, and have an impact on such area equal to or greater than 1 J.lgfm3 (24-hour 

34 average). 

35 AAA. "Signifieant emissions inerease" means, for a regulated NSR pollutant, an increase in emissions 

36 that is significant for that pollutant. 

37 BBB. "Stationary source" means any building, structure, facility, or installation which emits, or may 

38 emit, any regulated NSR pollutant. 

39 CCC. "Subject to regulation" means, for any air pollutant, that the pollutant is subject to either a 

40 provision in the Clean Air Act, or a nationally-applicable regulation codified by the administrator in Subchapter C of 

41 Chapter I of Title 40 of the CFR, that requires actual control of the quantity of emissions of that pollutant, and that 

42 such a control requirement has taken effect and is operative to control, limit or restrict the quantity of emissions of 

43 that pollutant released from the regulated activity. Except that: 

44 (l) Greenhouse gases (GHGs) shall not be subject to regulation except as provided in Paragraphs (4) 

45 and (5) of Subsection CCC of20.11.61.7 NMAC and shall not be subject to regulation if the stationary source 

46 maintains its total source-wide emissions below the GHG PAL level, meets the requirements in 20.11.61.20 NMAC, 

47 and complies with the PAL permit containing the GHG PAL. 

48 (2) For purposes of Paragraphs (3) through (5) ofSubseetion CCC of20.11.61.7 NMAC, the term 

49 "tpy CO:z equivalent emissions (C02e)" shall represent an amount ofGHGs emitted, and shall be computed as 

50 follows: 

51 (a) multiplying the mass amount of emissions (tpy), for each of the six greenhouse gases in the 

52 pollutant GHGs, by the gas's associated global warming potential published at Table A-1 to subpart A of Part 98 of 

53 Chapter I of Title 40 of the CFR- Global Warming Potentials; fer puFfleses efPamgmph (2) efSYbseetieR CCC 

54 ef29.1 Uil.7 NMAC, prier te Jttly 21, 2014, the Rtass efthe gHeRhause gas ettmeR dieKide shall Ftet inehule £arbon 

55 dioMiee eRtissiens res\tlting WRI tke eeR'IeustieA er deeeR'Ipasitien eheH fessilizea aaa biedegraeaele ergmtie 

56 Rt!Kerial erigiaating tfaR'I pla1lts, anii'Rals, or miem ergtmisffts (ineh:tding pfeeuas, ~ pl'eduets, residues ana waste 

20.11.61 NMAC Public Review Draft 2fl.0/2015 10 
1 f.rem agrieultuFe, ferestry and related industries as well as the neA fessiliz:ed a~tEI biedegr:adable erganie f.ractiens ef 

2 industrial a~td munieif)al wastes, ineluding gases and liEJt~ids reea•;ered fi:em the deeam~esitiaH of nan fessili2ed and 

3 biadegradable orgaAie material). 

4 (b) sum the resultant value from Subparagraph (a) of Paragraph (2) of Subsection CCC of 

5 20.11.61.7 NMAC for each gas to compute a tpy C02e. 

6 (3) The term "emissions increase" as used in Paragraphs (4) and (5) of Subsection CCC of20.11.61.7 

7 NMAC, shall mean that both a significant emissions increase (as calculated using the procedures in Subsection D of 

8 20.11.61.11 NMAC) and a significant net emissions increase (as defined in Subsection PP of20.11.61.7 NMAC and 

9 Subsection ZZ of20.11.61.7 NMAC) occur. For the pollutant GHGs, an emissions increase shall be based on tpy 

10 C02e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and "significant" is 

11 defined as 75,000 tpy C02e instead of applying the value in Table 2 of 20.11.61.27 NMAC. 

12 (4) Beginning January 2, 2011, the pollutant GHGs is subject to regulation if: 

13 (a) the stationary source is a new major stationary source for a regulated NSR pollutant that is 

14 not GHGs, and also will emit or will have the potential to emit 75,000 tpy C02e or more; or 

15 (b) the stationary source is an existing major stationary source for a regulated NSR pollutant 

16 that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase 

17 of75,000 tpy C02e or more; and, 

18 (5) beginning July 1, 2011, in addition to the provisions in Paragraph (4) of Subsection CCC of 

19 20.11.61. 7 NMAC, the pollutant GHGs shall also be subject to regulation: 

20 (a) at a new stationary source that will emit or have the potential to emit 100,000 tpy C02e; or 

21 (b) at an existing stationary source that emits or has the potential to emit 100,000 tpy C02e, 

22 when such stationary source undertakes a physical change or change in the method of operation that will result in an 

23 emissions increase of75,000 tpy C02e or more. 

24 ODD. "Temporary source" means a stationary source which changes its location or ceases to exist 

25 within two years from the date of initial start of operations. 

26 EEE. "Visibility impairment" means any humanly perceptible change in visibility (visual range, 

27 contrast, coloration) from that which would have existed under natural conditions. 

28 FFF. "Volatile organic compound (VOC)" means any compound of carbon, excluding carbon 

29 monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which 

30 participates in atmospheric photochemical reactions; this includes any such organic compound other than those 

31 which the administrator designates as having negligible photochemical reactivity under 40 CFR 51.1 OO(s). 

32 (20.11.61.7 NMAC- Rp, 20.11.61.7 NMAC, 1123/06; A, 5/15/06; A, 8/30110; A, 1/10/11; A, 5113/13] 

33 

34 20.11.61.8 SAVINGS CLAUSE: Any amendment to 20.11.61 NMAC, Prevention of Significant 

35 Deterioration that is filed with the state records center and archives shall not affect actions pending for violation of a 

36 city or county ordinance or board regulation. Prosecution for a violation under prior regulation wording shall be 

37 governed and prosecuted under the statute, ordinance, part or section in effect at the time the violation was 

38 committed. 

39 (20.11.61.8 NMAC- Rp, 20.11.61.9 NMAC, 1123/06] 

40 

41 20.ll.61.9 SEVERABILITY: If any section, paragraph, sentence, clause, or word of20.11.61 NMAC or 

42 any federal standards incorporated herein is for any reason held to be unconstitutional or otherwise invalid by any 

43 court, the decision shall not affect the validity of remaining provisions of 20.11.61 NMAC. 

44 [20.11.61.9 NMAC- Rp, 20.11.61.10 NMAC, 1123/06] 

45 

46 20.11.61.10 DOCUMENTS: Documents incorporated and cited in 20.1 I .61 NMAC may be viewed at the 

47 Albuquerque environmental health department, One Civic Plaza NW, 3rd Floor, Suite 3023, Albuquerque, NM 

48 87102. 

49 [20.11.61.10 NMAC- Rp, 20.11.61.11 NMAC, 1/23/06; A, 5/13/13] 

50 

51 20.ll.6l.ll APPLICABILITY: 

52 A. The requirements of20.11.61 NMAC apply to the construction of any new major stationary 

53 source or any project at an existing major stationary source in an area designated as attainment or unclassifiable. 

54 B. The Fequirements ef SeetieHs 2Q.IJ.(j 1.12l'lMAC aRd 20.11.6 I. J:; NMft,C, Subseetiens •"• tllreu~ 

55 C ef2Q.J J.(jl.l4 'NMAC, Pamgi=aph (I) efSubseetiaa B af20.11.(il.IS Jl>lMAC, Subseetians A aRd B af 

56 2G.ll.61.16 NM,",C, 20.11.61.17 NMAC, SubseetiaRs A through C of2(U U 1.18 NMAC, SubseetioRs BaRd C of 

20.11.61 NMAC Public Review Draft 2/20/2015 11 
1 2Q.I1Ji 1.21 NMAC aad 20.11.e 1.24 NMAC appJ.y ta the e&flstAtetiea afllfly new majer stati&flary searee er the 

2 majer medifieatiea efllfly existiBg majer statieAary seuree, e!Eeept as 2C:U 1.61 NMA.C atheF\vise pl'e>··ides. ~ 

3 requirements of20.11.61.12 NMAC through 20.11.61.18 NMAC, 20.11.61.21 NMAC and 20.1 1.61.24 NMAC 

4 m;wty to the construction of any new major stationary source or the major modification of any existing major 

5 stationary source except as 20.11.6 I NMAC otherwise provides. 

6 C. Ne new majer statieflary se1:1.ree er majer meaifieatiea m whieh the req1:1iremeRts ef 8\ibseetiaas 

7 A, 8, C &Hd 0 enG. I 1.61.12 NMAC, Seetiefi2G.J 1.61.13 ~IMAC, SueseetieRs A thFeugh C ef2Q.ll.61.14 

8 NMI.cC, Pa~h (I) efS\ibseetieA 8 ef2Q.l UUS 'NMAC, 8\ibseetieas A aml8 ef21U 1.61.16 JIJMAC, 

9 2G.II.61.17 'NM,A,C, SaeseetiaRs >'"• threugh C efaQ.II.61.18 'NMAC, Stteseetiens 8 ~me C ef2G.I1.61.21 'NMAC 

10 BAd 2G.ll.6 1.24 NMAC apply shall aegiR aetual eoastFuetieA witl'lel:lt a permit that states that tl'le major statioRary 

11 seuree or majer meEiifiGatiea v1ill meet tkese TeqHiremeats. No new major stationary source or major modification 

12 to which the requirements of Subsections A. B. C and D of20.11.6l.l2 NMAC. Sections 20.11.61.13 NMAC 

13 thrgush 20.11.61,18 NMAC. 20.11.61.21 NMAC and 20.11.61.24 NMAC apply shall begin actual cQnstruction 

14 without a pennit that states that the majgr stationary source or majQr mQdification will meet those requirements. 

15 D. Applicability procedures. 

16 ( 1) Except as otherwise provided in Subsection E of 20.11.61.11 NMAC, and consistent with the 

17 defmition of major modification, a project is a major modification for a regulated NSR pollutant if it causes a 

18 significant emissions increase and a significant net emissions increase. The project is not a major modification if it 

19 does not cause a significant emissions increase. lfthe project causes a significant emissions increase, then the 

20 project is a major modification only if it also results in a significant net emissions increase. 

21 (2) The procedure for calculating (before beginning actual construction) whether a significant 

22 emissions increase (i.e., the first step of the process) will occur depends upon the type of emissions units being 

23 modified, according to Paragraphs (3) through (5) of Subsection D of20.11.61.11 NMAC. The procedure for 

24 calculating (before beginning actual construction) whether a significant net emissions increase will occur at the 

25 major stationary source (i.e., the second step of the process) is contained in the definition in Subsection PP of 

26 20 .11.61. 7 NMAC. Regardless of any such preconstruction projections, a major modification results if the project 

27 causes a significant emissions increase and a significant net emissions increase. 

28 (3) Actual-to-projected-actual applicability test for projects that only involve existing emissions 

29 units. A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the 

30 difference between the projected actual emissions and the baseline actual emissions for each existing emissions unit 

31 equals or exceeds the significant amount for that pollutant. 

32 (4) Actual-to-potential test for projects that only involve construction of a new emissions 

33 unit(s). A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum ofthe 

34 difference between the potential to emit fi:om each new emissions unit following completion of the project and the 

35 baseline actual emissions of these units before the project equals or exceeds the significant amount for that pollutant. 

36 (5) Hybrid test for projects that involve multiple types of emissions units. A significant 

37 emissions increase of a regulated NSR pollutant is projected to occur if the sum of the emissions increases for each 

38 emissions unit, using the method specified in Paragraphs (3) and (4) of Subsection D of20.11.6l.ll NMAC as 

39 applicable with respect to each emissions unit, for each type of emissions unit equals or exceeds the significant 

40 amount for that pollutant. 

41 E. For any major stationary source for a PAL for a regulated NSR pollutant, the major stationary 

42 source shall comply with requirements under 20.11.61.20 NMAC. 

43 [20.1 1.61.11 NMAC- N, 1/23/06; A, 8/30/1 0; A, III 0/11; A, 5/13/13] 

44 

45 20.11.61.12 OBLIGATIONS OF OWNERS OR OPERATORS OF SOURCES: 

46 A. Any owner or operator who begins actual construction or operates a source or modification 

47 without, or not in accordance with, a permit issued under the requirements of20.11.61 NMAC shall be subject to 

48 enforcement action. 

49 B. Approval to construct shall not relieve any person from the responsibility to comply fully with the 

50 provisions ofthe Air Quality Control Act, Sections 74-2-1 to 74-2-17, NMSA 1978; any applicable regulations of 

51 the board; and any other requirements under local, state, or federal law. 

52 C. Approval to construct shall become invalid if construction is not commenced within 18 months 

53 after receipt of such approval, if construction is discontinued for a period of 18 months or more, or if construction is 

54 not completed within a reasonable time; the administrator may extend the 18-month period upon a satisfactory 

55 showing that an extension is justified; this provision does not apply to the time period between construction of the 

20.11.61 NMAC Public Review Draft 2120/2015 12 
1 approved phases of a phased construction project; each phase must commence construction within 18 months of the 

2 projected and approved commencement date. 

3 D. At such time that a particular source or modification becomes a major stationary source or major 

4 modification solely by virtue of a relaxation in any enforceable limitation which was established after August 7, 

5 1980, on the capacity of the source or modification otherwise to emit a pollutant, such as a restriction on hours of 

6 operation, then 20.11.61 NMAC shall apply to the source or modification as though construction had not yet 

7 commenced on the source or modification. 

8 E. Except as otherwise provided in Paragraph (6) of Subsection E of20.11.61.12 NMAC the 

9 following specific provisions apply with respect to any regulated NSR pollutant emitted from projects at existing 

I 0 emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where 

II there is a reasonable possibility within the meaning of Paragraph (6) of Subsection E of20.11.61.12 NMAC that a 

12 project that is not a part of a major modification may result in a significant emissions increase of such pollutant and 

13 the owner or operator elects to use the method specified in Paragraphs (1) through (3) of Subsection VV of 

14 20.11.61.7 NMAC for calculating projected actual emissions. 

15 (I) Before beginning actual construction ofthe project, the owner or operator shall document and 

16 maintain a record ofthe following information: 

17 (a) a description of the project; 

18 (b) identification of the emissions unit(s) whose emissions of a regulated NSR pollutant could 

19 be affected by the project; and 

20 (c) a description of the applicability test used to determine that the project is not a major 

21 modification for any regulated NSR pollutant, including the baseline actual emissions, the projected actual 

22 emissions, the amount of emissions excluded under Paragraph (3) of Subsection VV of20.11.61. 7 NMAC and an 

23 explanation for why such amount was excluded, and any netting calculations, if applicable. 

24 (2) If the emissions unit is an existing electric utility steam generating unit, before beginning actual 

25 construction, the owner or operator shall provide a copy of the information set out in Paragraph (1) of Subsection E 

26 of20.11.61.12 NMAC to the department. Nothing in Paragraph (2) of Subsection E of 20.11.61.12 NMAC shall be 

27 construed to require the owner or operator of such a unit to obtain any determination from the department before 

28 beginning actual construction; however, necessary preconstruction approvals and/or permits must be obtained before 

29 beginning actual construction. 

30 (3) The owner or operator shall monitor the emissions of any regulated NSR pollutant that could 

31 increase as a result of the project and that is emitted by any emissions unit identified in Subparagraph (b) of 

32 Paragraph ( 1) of Subsection E of 20.11.61.12 NMAC; and calculate and maintain a record of the annual emissions, 

33 in tons per year on a calendar year basis, for a period of five years following resumption of regular operations after 

34 the change, or for a period of 10 years following resumption of regular operations after the change ifthe project 

35 increases the design capacity or potential to emit of that regulated NSR pollutant at such emissions unit. For 

36 purposes of Paragraph (3) of Subsection E of20.11.61.12 NMAC, fugitive emissions (to the extent quantifiable) 

37 shall be monitored if the emissions unit is part of one of the source categories listed in Table 1 of20.11.61.26 

38 NMAC or if the emissions unit is located at a major stationary source that belongs to one of the listed source 

39 categories. 

40 (4) If the unit is an existing electric utility steam generating unit, the owner or operator shall submit a 

41 report to the department within 60 days after the end of each year during which records must be generated under 

42 Subparagraph (c) of Paragraph (1) of Subsection E of20.11.61.12 NMAC setting out the unit's annual emissions 

43 during the calendar year that preceded submission of the report. 

44 (5) If the unit is an existing unit other than an electric utility steam generating unit, the owner or 

45 operator shall submit a report to the department if the annual emissions, in tons per year, from the project identified 

46 in Paragraph (I) of Subsection E of 20.11.61.12 NMAC, exceed the baseline actual emissions (as documented and 

47 maintained pursuant to Subparagraph (c) of Paragraph (1) of Subsection E of20.11.61.12 NMAC) by a significant 

48 amount for that regulated NSR pollutant, and if such emissions differ from the preconstruction projection as 

49 documented and maintained pursuant to Subparagraph (c) of Paragraph (I) of Subsection E of 20.11.61.12 NMAC. 

50 Such report shall be submitted to the department within 60 days after the end of such year. The report shall contain 

51 the following: 

52 (a) the name, address and telephone number of the major stationary source; 

53 (b) the annual emissions as calculated pursuant to Paragraph (3) of Subsection E of20.11.61.12 

54 NMAC; and 

55 (c) any other information that the owner or operator wishes to include in the report (e.g., an 

56 explanation as to why the emissions differ from the preconstruction projection). 

20.11.61 NMAC Public Review Draft 2/20/2015 13 
I (6) A ''reasonable possibility" under Subsection E of20.11.61.12 NMAC occurs when the owner or 

2 operator calculates the project to result in either: 

3 (a) a projected actual emissions increase of at least 50 percent of the amount that is a 

4 ''significant emissions increase," as defined under Subsection AAA of20.11.61.7 NMAC (without reference to the 

5 amount that is a significant net emissions increase), for the regulated NSR pollutant; or 

6 (b) a projected actual emissions increase that, added to the amount of emissions excluded under 

7 Paragraph (3) of Subsection VV of 20.11.61.7 NMAC, sums to at least 50 percent of the amount that is a 

8 "significant emissions increase," as defined under Subsection AAA of 20.11.61. 7 NMAC (without reference to the 

9 amount that is a significant net emissions increase), for the regulated NSR pollutant; for a project for which a 

10 reasonable possibility occurs only within the meaning ofSubparagraph (b) of Paragraph (6) of Subsection E of 

11 20.11.61.12 NMAC, and not also within the meaning of Subparagraph (a) of Paragraph (6) of Subsection E of 

12 20.11.61.12 NMAC, then provisions of Paragraphs (2) through (5) of Subsection E of20.11.61.12 NMAC do not 

13 apply to the project. 

14 F. The owner or operator of the source shall make the information required to be documented and 

15 maintained pursuant to Subsection E of 20.11.61.12 NMAC available for review upon request for inspection by the 

16 department or the general public pursuant to the requirements contained in 40 CFR 70.4(bX3)(viii). 

17 [20.11.61.12 NMAC- Rp, 20.11.61.12 NMAC, 1/23/06; A, 8/30/10; A, 1/10/11; A, 5/13/13] 

18 

19 20.11.61.13 SOURCE INFORMATION: The owner or operator of a proposed source or modification shall 

20 submit all information necessary to perform any analysis or make any determination required by 20.11.61 NMAC. 

21 A. Information shall include, but is not limited to: 

22 (I) a description ofthe nature, location, design capacity, and typical operating schedule of the source 

23 or modification, including specifications and drawings showing the design and plant layout; and 

24 (2) a detailed schedule of construction ofthe source or modification; and 

25 (3) a detailed description of the planned system of continuous emission reduction for the source or 

26 modification, emission estimates, and other information necessary to determine that best available control 

27 technology will be applied. 

28 B. Upon request by the department, the owner or operator shall also provide information on: 

29 (I) the air quality impact of the source or modification, including meteorological and topographic 

30 data necessary to estimate such impact; and 

31 (2) the air quality impacts, and the nature and extent of any or all general commercial, residential, 

32 industrial, and other growth which has occurred since August 7, 1977 in the area the source or modification would 

33 affect. 

34 [20.1 1.61.13 NMAC- Rp, 20.11.61.13 NMAC, 1/23/06] 

35 

36 20.ll.6l.l4 CONTROL TECHNOLOGY REVIEW AND INNOVATIVE CONTROL TECHNOLOGY: 

37 A. A new major stationary source shall apply best available control technology for each regulated 

38 NSR pollutant that it would have the potential to emit in amounts equal to or greater than the significance levels as 

39 listed in Table 2 of20.11.61.27 NMAC. This requirement applies to each proposed emissions unit or operation that 

40 will emit such pollutant. 

41 B. A major modification shall apply best available control technology for each regulated NSR 

42 pollutant at the source when a significant net emissions increase occurs. This requirement applies to each proposed 

43 emissions unit or operation where a net emissions increase in the pollutant would occur as a result of a physical 

44 change or change in the method of operation in the unit. 

45 C. For phased construction projects, the determination of best available control technology shall be 

46 reviewed and modified as appropriate at the latest reasonable time but no later than 18 months prior to 

47 commencement of construction of each independent phase of the project. At such time, the owner or operator of the 

48 applicable stationary source may be required to demonstrate the adequacy of any previous determination of best 

49 available control technology for the source. 

50 D. Innovative control technology. The department may approve a system of innovative control 

51 technology for the major stationary source or major modification if: 

52 (1) the proposed control system would not cause or contribute to an unreasonable risk to public 

53 health, welfare, or safety in its operation or function; and 

54 (2) the owner or operator agrees to achieve a level of continuous emissions reduction equivalent to 

55 that which would have been required under Subsection A of 20.11.61.14 NMAC by a date specified by the 

20.1 1.61 NMAC Public Review Draft 2/20/20 15 14 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

46 

47 

48 

49 

50 

51 

52 

53 

54 

55 

56 

department Such date shall not be later than four years from the time of startup or seven years from permit 

issuance; and 

(3) the source or modification would meet the requirements equivalent to 20.11.61.14 NMAC and 

20.11.61.15 NMAC based on the emissions rate that the stationary source employing the system of innovative 

control technology would be required to meet on the date specified by the department; and 

would not: 

(4) during the interim period of achieving the permitted emission level, the source or modification 

(a) cause or contribute to a violation of an applicable NAAQS; nor 

(b) impact any federal class I area; nor 

(c) impact any area where an applicable increment is known to be violated; and 

(5) all other applicable requirements including those for public participation have been met. 

E. The department shall withdraw any approval to employ a system of innovative control technology 

if: 

(I) the proposed system fails by the specified date to achieve the required continuous emissions 

reduction rate; or 

(2) the proposed system fails before the specified date so as to contribute to an unreasonable risk to 

public health, welfare, or safety; or 

(3) the department decides at any time that the proposed system is unlikely to achieve the required 

level of control or to protect the public health, welfare, or safety. 

F. If a source or modification fails to meet the required level of continuous emission reduction within 

the specified time period or the approval is withdrawn in accordance with Subsection E of20.1l.61.14 NMAC, the 

department may allow the source or modification up to an additional three years to meet the requirement for the 

application of best available control technology through use of a demonstrated system of control. 

G. If the owner or operator of a major stationary source or major modification previously issued a 

permit under 20.11.61 NMAC applies for an extension, and the new proposed date of construction is greater than 18 

months from the date the permit would become invalid, the determination of best available control technology shall 

be reviewed and modified as appropriate before such an extension is granted. At such time, the owner or operator of 

the applicable stationary source may be required to demonstrate the adequacy of any previous determination of best 

available control technology for the source. 

[20.11.61.14 NMAC- Rp, 20.11.61.14 NMAC, 1/23/06; A, 8/30/10; A, 5/13/13] 

20.11.61.15 AMBIENT IMPACT REQUIREMENTS: 

A. The requirements of20.11.61.15 NMAC shall apply to each pollutant emitted by a new major 

stationary source or major modification in amounts equal to or greater than that in Table 2 of 20.11.61.27 NMAC. 

For particulate matter, the source will only be required to perform ambient impact analysis for PM10 when the source 

has the potential to emit significant amounts ofPM10 as determined from Table 2 of20.11.61.27 NMAC. 

B. Source impact analysis. 

(I) Required demonstration. The owner or operator of the proposed source or modification shall 

demonstrate that the allowable emission increases from the proposed source or modification, in conjunction with all 

other applicable emissions increases or reductions, (including secondary emissions), would not cause or contribute 

to air pollution in violation of: 

(a) any NAAQS in any air quality control region; or 

(b) any applicable maximum allowable increase (as shown in Table 4 of20.11.61.29 NMAC) 

over the baseline concentrations in any area. 

(2) Reserved 

C. The owner or operator of the proposed major stationary source or major modification shall 

demonstrate that neither a violation of Subparagraph (a) or (b) of Paragraph (I) of Subsection B of20.11.61.15 

NMAC will occur. 

[20.11.61.15 NMAC- Rp, 20.11.61.15 NMAC, 1/23/06; A, 8/30/10; A, 5/13/13] 

20.11.61.16 ADDITIONAL IMPACT ANALYSES: 

A. The owner or operator of the proposed major stationary source or major modification shall provide 

an analysis of the impairment to visibility, soils, and vegetation that would occur as a result of the source or 

modification and general commercial, residential, industrial, and other growth associated with the source or 

modification. The owner or operator need not provide an analysis of the impact on vegetation having no significant 

commercial or recreational value. The analysis can use data or information available from the department. 

20.11.61 NMAC Public Review Draft 2!20/2015 15 
B. The owner or operator shall also provide an analysis of the air quality impact projected for the area 

2 as a result of general commercial, residential, industrial, and other growth associated with the source or 

3 modification. 

4 C. The department may require monitoring of visibility in any federal class I area where the 

5 department determines that an adverse impact on visibility may occur due primarily to the operations ofthe 

6 proposed new source or modification. Such monitoring shall be conducted following procedures approved by the 

7 department and subject to the following: 

8 (1) visibility monitoring methods specified by the department shall be reasonably available and not 

9 require any research and development; and 

10 (2) the cost of visibility monitoring required by the department shall not exceed 50 percent of the cost 

II of ambient monitoring required by 20.11.61 NMAC; if ambient monitoring is not required, the cost shall be 

12 estimated as if it were required for each pollutant to which 20.11.61 NMAC applies; 

13 (3) both preconstruction and post construction visibility monitoring may be required; in each case, the 

14 duration of such monitoring shall not exceed one year. 

15 [20.11.61.16 NMAC- Rp, 20.11.61.16 NMAC, 1/23/06; A, 8/30/ I OJ 

16 

17 20.11.61.17 AMBIENT AIR QUALITY MODELING: All estimates of ambient concentrations required by 

18 20.11.61 NMAC shall be based on applicable air quality models, data bases, and other requirements as specified in 

19 Appendix W to 40 CFR Part 5 I, its revisions, or any superseding EPA document, and approved by the department. 

20 Where an air quality model specified in the Appendix W to 40 CFR Part 51, Guideline on Air Quality Models, is 

21 inappropriate, the model may be modified or another model substituted. Any substitution or modification of a 

22 model must be approved by the department. Notification shall be given by the department of such a substitution or 

23 modification and the opportunity for public comment provided for in fulfilling the public notice requirements in 

24 Subsection B of20.11.61.21 NMAC. The department will seek EPA approval of such substitutions or 

25 modifications. 

26 [20.11.61.17 NMAC- Rp, 20.11.61.17 NMAC, 1123/06; A, 8/30/1 0] 

27 

28 20.11.61.18 AIR QUALITY ANALYSIS AND MONITORING REQUIREMENTS: 

29 A. Preapplication analysis. 

30 (I) Any application for a permit under regulations approved pursuant to 40 CFR 51.166 (e.g. 

3 I 20.11.61 NMAC) shall contain an analysis of ambient air quality in the area that the major stationary source or 

32 major modification would affect for each of the following pollutants: 

33 (a) for a major stationary source, each pollutant that it would have the potential to emit in a 

34 significant amount; or 

35 (b) for a major modification, each pollutant for which it would result in a significant net 

36 emission increase. 

37 (2) If no NAAQS for a pollutant exists, and there is an acceptable method for monitoring that 

38 pollutant, the analysis shall contain such air quality monitoring data as the department determines is necessary to 

39 assess ambient air quality for that pollutant in any area that the emissions ofthat pollutant would affect. 

40 (3) For pollutants (other than nonmethane hydrocarbons) for which a standard does exist, the analysis 

41 shall contain continuous air quality monitoring data gathered for purposes of determining whether emissions of that 

42 pollutant would cause or contribute to a violation of the standard or any maximum allowable increase. 

43 (4) The continuous air quality monitoring data that is required shall have been gathered over a period 

44 of one year and shall represent the one year period preceding receipt of the permit application. The department has 

45 the discretion to: 

46 (a) determine that a complete and adequate analysis can be accomplished with monitoring data 

47 gathered over a period shorter than one year but not less than four months; or 

48 (b) determine that existing air quality monitoring data is representative of air quality in the 

49 affected area and accept such data in lieu of additional monitoring by the applicant. 

50 (5) Ozone monitoring shall be performed if monitoring data is required for volatile organic 

51 compounds or oxides of nitrogen. The owner or operator of a proposed major stationary source or major 

52 modification of volatile organic compounds who satisfies all conditions of 40 CFR Part 51 Appendix S, Section IV 

53 may provide post-approval monitoring data for ozone in lieu of providing preconstruction data as required under 

54 Subsection A of20.11.61.18 NMAC. 

55 B. Post-construction monitoring. The owner or operator of a major stationary source or major 

56 modification shall, after construction of the stationary source or modification, conduct such ambient monitoring as 

20.1 L61 NMAC Public Review Draft 2/20/2015 16 
1 the department determines is necessary to determine the effect emissions from the stationary source or modification 

2 may have, or are having, on air quality in any area, including monitoring to validate attainment of ambient air 

3 quality standards and to assure that increments are not exceeded. 

4 C. Operation of monitoring stations. The owner or operator of a major stationary source or major 

5 modification shall meet the requirements of 40 CFR 58, Appendix B during the operation of monitoring stations for 

6 purposes of satisfying the requirements of Subsections A through C of 20.11.61.18 NMAC. 

7 D. Exceptions. The department has the discretion to exempt a proposed major stationary source or 

8 major modification from the requirements of Subsections A through C of 20.11.61.18 NMAC with respect to 

9 monitoring for a particular pollutant if: 

10 (1) the emissions increase of the pollutant from a new stationary source or the net emissions increase 

11 of the pollutant from a modification would cause, in any area, air quality impacts less than the levels listed in Table 

12 3 of20.11.61.28 NMAC; 

13 (2) the existing ambient concentrations of the pollutant in the area affected by the source or 

14 modification are less than the concentrations listed in Table 3 of20.11.61.28 NMAC; or 

15 (3) the pollutant is not listed in Table 3 of20.11.61.28 NMAC. 

16 [20.11.61.18 NMAC- Rp, 20.11.61.18 NMAC, 1/23/06; A, 8/30/10; A, 5/13/13] 

17 

18 20.11.61.19 TEMPORARY SOURCE EXEMPTIONS: The requirements of Subsection B of20.11.61.15 

19 NMAC, 20.11.61.16 NMAC and 20.11.61.18 NMAC shall not apply to a major source or modification with respect 

20 to a particular pollutant, if the allowable emissions of that pollutant from the source, or the net emissions increase of 

21 that pollutant from the modification: would not impact any federal class I area or any areas where an applicable 

22 increment is known to be violated; and would be temporary. 

23 [20.11.61.19 NMAC- Rp, 20.11.61.19 NMAC, 1/23/06; A, 8/30/1 0] 

24 

25 20.11.61.20 ACTUALS PLANTWIDE APPLICABILITY LIMITS (PALs): 

26 A. Applicability. 

27 (1) The department may approve the use of an actuals PAL, including for GHGs on either a mass 

28 basis or a C02e basis, for any existing major stationary source or any existing GHG-only source if the PAL meets 

29 the requirements of20.11.61.20 NMAC. The term "PAL" shall mean "actuals PAL" throughout 20.11.61.20 

30 NMAC. 

31 (2) Any physical change in or change in the method of operation of a major stationary source or a 

32 GHG-only source that maintains its total source-wide emissions below the PAL level, meets the requirements of 

33 20.11.61.20 NMAC, and complies with the PAL permit: 

34 (a) is not a major modification for the PAL pollutant; 

35 (b) does not have to be approved through the plan's major NSR program; 

36 (c) is not subject to the provisions in Subsection D of 20.11.61.12 NMAC (restrictions on 

37 relaxing enforceable emission limitations that the major stationary source used to avoid applicability of the major 

38 NSR program); and 

39 (d) does not make GHGs "subject to regulation" as defined by Subsection CCC of20.11.61.7 

40 NMAC. 

41 (3) Except as provided under Subparagraph (c) of Paragraph (2) of Subsection A of20.11.61.20 

42 NMAC, a major stationary source or a GHG-only source shall continue to comply with all applicable federal or state 

43 requirements, emission limitations, and work practice requirements that were established prior to the effective date 

44 ofthe PAL. 

45 B. Definitions applicable to 20.11.61.20 NMAC. 

46 (1) Actuals PAL for a major stationary source means a PAL based on the baseline actual emissions 

47 (as defined in Subsection I of 20.11.61.7 NMAC) of all emissions units (as defined in Subsection Y of20.11.61.7 

48 NMAC) at the source, that emit or have the potential to emit the PAL pollutant. For a GHG-only source, actuals 

49 PAL means a PAL based on the baseline actual emissions (as defined in Paragraph (13) of Subsection B of 

50 20.11.61.20 NMAC) of all emissions units (as defined in Paragraph (14) of Subsection B of 20.11.61.20 NMAC) at 

51 the source, that emit or have the potential to emit GHGs. 

52 (2) Allowable emissions means "allowable emissions" as defined in Subsection F of 20.11.61.7 

53 NMAC, except as this definition is modified in accordance with the following. 

54 (a) The allowable emissions for any emissions unit shall be calculated considering any 

55 emission limitations that are enforceable as a practical matter on the emissions unit's potential to emit. 

20.11.61 NMAC Public Review Draft 2/20/2015 17 
1 (b) An emissions unit's potential to emit shall be detennined using the definition in Subsection 

2 SS of20.ll.61.7 NMAC, except that the words "or enforceable as a practical matter" should be added after 

3 "federally enforceable". 

4 (3) Small emissions unit means an emissions unit that emits or has the potential to emit the PAL 

5 pollutant in an amount less than the significant level for that PAL pollutant, as defined in Subsection ZZ of 

6 20.11.6l.7 NMAC or in the act, whichever is lower. For a GHG PAL issued on a C02 e basis, small emissions 

7 unit means an emissions unit that emits or has the potential to emit less than the amount of GHGs on a C02 e basis 

8 defmed as "significant" for the purposes of Paragraph (3) of Subsection CCC of20.11.61.7 NMAC at the time the 

9 PAL pennit is being issued. 

10 (4) Major emissions unit means: 

11 (a) Any emissions unit that emits or has the potential to emit 100 tons per year or more of the 

12 PAL pollutant in an attainment area; or 

l3 (b) any emissions unit that emits or has the potential to emit the PAL pollutant in an amount 

14 that is equal to or greater than the major source threshold for the PAL pollutant as defined by the act for 

IS nonattainment areas. For example, in accordance with the definition of major stationary source in Section 182(c) of 

16 the act, an emissions unit would be a major emissions unit for VOC if the emissions unit is located in a serious 

17 ozone nonattainment area and it emits or has the potential to emit 50 or more tons of VOC per year. 

18 (c) For a GHG PAL issued on a C02 e basis, any emissions unit that emits or has the potential 

19 to emit equal to or greater than the amount of GHGs on a C02 e basis that would be sufficient for a new source to 

20 trigger pennitting requirements under Subsection CCC of20.11.61.7 NMAC at the time the PAL pennit is being 

21 issued. 

22 (5) Plantwide applicability limitation (PAL) means an emission limitation expressed on a mass 

23 basis in tons-per-year, or expressed in tpy C02 e for a C02 e-based GHG emission limitation, for a pollutant at a 

24 major stationary source or GHG-only source, that is enforceable as a practical matter and established source-wide in 

25 accordance with 20.11.61.20 NMAC. 

26 (6) PAL effective date generally means the date of issuance ofthe PAL permit. However, the PAL 

27 effective date for an increased PAL is the date any emissions unit that is part of the PAL major modification 

28 becomes operational and begins to emit the PAL pollutant. 

29 (7) PAL effective period means the period beginning with the PAL effective date and ending I 0 

30 years later. 

31 (8) PAL major modification means, notwithstanding the definitions for major modification, net 

32 emissions increase and subject to regulation at Subsections II, PP and CCC of20.11.61.7 NMAC respectively, any 

33 physical change in or change in the method of operation of the PAL source that causes it to emit the PAL pollutant 

34 at a level equal to or greater than the PAL. 

35 (9) PAL permit means the major NSR permit, the minor NSR pennit, or the state operating permit 

36 under a program that is approved into the SIP, or the title V permit issued by the department that establishes a PAL 

37 for a major stationary source or a GHG-only source. 

38 (10) PAL pollutant means the pollutant for which a PAL is established at a major stationary source 

39 or a GHG-only source. For a GHG-only source, the only available PAL pollutant is GHGs. 

40 (II) Significant emissions unit means an emissions unit that emits or has the potential to emit a PAL 

41 pollutant in an amount that is equal to or greater than the significant level (as defined in Subsection ZZ of 20.11.61. 7 

42 NMAC or in the act, whichever is lower) for that PAL pollutant, but less than the amount that would qualifY the unit 

43 as a major emissions unit as defined in Paragraph (4) of Subsection B of20.11.61.20 NMAC. For a GHG PAL 

44 issued on a C02 e basis, significant emissions unit means any emissions unit that emits or has the potential to emit 

45 GHGs on a C02 e basis in amounts equal to or greater than the amount that would qualify the unit as small 

46 emissions unit as defined in Paragraph (3) of Subsection B of20.11.61.20 NMAC, but less than the amount that 

47 would qualify the unit as a major emissions unit as defined in Subparagraph (c) of Paragraph (4) of Subsection B of 

48 20.11.61.20 NMAC. 

49 (12) GHG-only source means any existing stationary source that emits or has the potential to emit 

50 GHGs in the amount equal to or greater than the amount ofGHGs on a mass basis that would be sufficient for a new 

51 source to trigger pennitting requirements for GHGs under Subsection KK of20.11.61.7 NMAC and the amount of 

52 GHGs on a C02 e basis that would be sufficient for a new source to" trigger permitting requirements for GHGs under 

53 Subsection CCC of 20.11.61. 7 NMAC at the time the PAL penn it is being issued, but does not emit or have the 

54 potential to emit any other non-GHG regulated NSR pollutant at or above the applicable major source threshold. A 

55 GHG-only source may only obtain a PAL for GHG emissions under 20.11.61.20 NMAC. 

20.11.6 J NMAC Public Review Draft 2/20/20 IS 18 
1 (13) Baseline actual emissions for a GHG PAL means the average rate, in tpy C02 e or tpy GHG, as 

2 applicable, at which the emissions unit actually emitted GHGs during any consecutive 24-month period selected by 

3 the owner or operator within the l 0-year period immediately preceding either the date the owner or operator begins 

4 actual construction of the project, or the date a complete permit application is received by the administrator for a 

5 permit required under 40 CFR 52.21 or by the department for a permit required by a plan, whichever is earlier. For 

6 any existing electric utility steam generating unit, baseline actual emissions for a GHG PAL means the average rate, 

7 in tpy C02 e or tpy GHG, as applicable, at which the emissions unit actually emitted the GHGs during any 

8 consecutive 24-month period selected by the owner or operator within the 5-year period immediately preceding 

9 either the date the owner or operator begins actual construction of the project, except that the administrator shall 

I 0 allow the use of a different time period upon a determination that it is more representative of normal source 

11 operation. 

12 (a) The average rate shall include fugitive emissions to the extent quantifiable, and emissions 

13 associated with startups, shutdowns, and malfunctions. 

14 (b) The average rate shall be adjusted downward to exclude any non-compliant emissions that 

15 occurred while the source was operating above an emission limitation that was legally enforceable during the 

16 consecutive 24-month period. 

17 (c) The average rate shall be adjusted downward to exclude any emissions that would have 

18 exceeded an emission limitation with which the stationary source must currently comply, had such stationary source 

19 been required to comply with such limitations during the consecutive 24-month period. 

20 (d) The average rate shall not be based on any consecutive 24-month period for which there is 

21 inadequate information for determining annual GHG emissions and for adjusting this amount if required by 

22 Subparagraphs (b) and (c) of Paragraph (13) of Subsection B of20.ll.61.20 NMAC. 

23 (14) Emissions unit witll respect to GHGs means any part of a stationary source that emits or has the 

24 potential to emit GHGs. For purposes of 40 CFR 52.21, there are two types of emissions units as described in the 

25 following: 

26 (a) a new emissions unit is any emissions unit that is (or will be) newly constructed and that 

27 has existed for less than 2 years from the date such emissions unit first operated; 

28 (b) an existing emissions unit is any emissions unit that does not meet the requirements in 

29 Subparagraph (a) of Paragraph (14) of Subsection B of20.11.61.20 NMAC. 

30 (15) Minor source means any stationary source that does not meet the definition of major stationary 

31 source in Subsection KK of20.11.61.7 NMAC for any pollutant at the time the PAL is issued. 

32 C. Permit application requirements. As part of a permit application requesting a PAL, the owner 

33 or operator of a major stationary source or a GHG-only source shall submit the following information to the 

34 department for approval. 

35 (I) A list of all emissions units at the source designated as small, significant or major based on their 

36 potential to emit. In addition, the owner or operator of the source shall indicate which, if any, federal or state 

37 applicable requirements, emission limitations, or work practices apply to each unit. 

38 (2) Calculations of the baseline actual emissions (with supporting documentation). Baseline actual 

39 emissions are to include emissions associated not only with operation of the unit, but also emissions associated with 

40 startup, shutdown, and malfunction. 

41 (3) The calculation procedures that the major stationary source owner or operator proposes to use to 

42 convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for 

43 each month as required by Subsection M of20.11.6L20 NMAC. 

44 (4) As part of a permit application requesting a GHG PAL, the owner or operator of a major 

45 stationary source or a GHG-only source shall submit a statement by the source owner or operator that clarifies 

46 whether the source is an existing major source as defined in Subparagraphs (a) and (b) of Paragraph (I) of 

47 Subsection KK of20.11.61.7 NMAC or a GHG-only source as defined in Paragraph (12) of Subsection B of 

48 20.11.61.20 NMAC. 

49 D. General requirements for establishing PALs. 

50 (1) The department may establish a PAL at a major stationary source or a GHG-only source, provided 

51 that at a minimum, the following requirements are met. 

52 (a) The PAL shall impose an annual emission limitation expressed on a mass basis in tons per 

53 year, or expressed in tpy C02 e, that is enforceable as a practical matter, for the entire major stationary source or 

54 GHG-only source. For each month during the PAL effective period after the first 12 months of establishing a PAL, 

55 the major stationary source or GHG-only source owner or operator shall show that the sum of the monthly emissions 

56 from each emissions unit under the PAL for the previous 12 consecutive months is less than the PAL (a 12-month 

20.11.61 NMAC Public Review Draft 2/20/2015 19 
I average, rolled monthly). For each month during the first 11 months from the PAL effective date, the major 

2 stationary source or GHG-only source owner or operator shall show that the sum ofthe preceding monthly 

3 emissions from the PAL effective date for each emissions unit under the PAL is less than the PAL. 

4 (b) The PAL shall be established in a PAL permit that meets the public participation 

5 requirements in Subsection E of20.11.61.20 NMAC. 

6 (c) The PAL permit shall contain all the requirements of Subsection G of20.11.61.20 NMAC. 

7 (d) The PAL shall include fugitive emissions, to the extent quantifiable, from all emissions 

8 units that emit or have the potential to emit the PAL pollutant at the major stationary source or GHG-only source. 

9 (e) Each PAL shall regulate emissions of only one pollutant. 

10 (f) Each PAL shall have a PAL effective period of 10 years. 

11 (g) The owner or operator of the major stationary source or GHG-only source with a PAL shall 

12 comply with the monitoring, recordkeeping, and reporting requirements provided in Subsections L through N of 

13 20.11.61.20 NMAC for each emissions unit under the PAL through the PAL effective period. 

14 (2) At no time during or after the PAL effective period are emissions reductions of a PAL pollutant 

15 that occur during the PAL effective period creditable as decreases for purposes of offsets under 40 CFR 

16 51.165(a)(3)(ii) unless the level of the PAL is reduced by the amount of such emissions reductions and such 

17 reductions would be creditable in the absence of the PAL. 

18 E. Public participation requirements for PALs. PALs for existing major stationary sources or 

19 GHG-only sources shall be established, renewed, or increased, through a procedure that is consistent with 40 CFR 

20 51.160 and 161. This includes the requirement that the department provide the public with notice of the proposed 

21 approval of a PAL permit and at least a 30-day period for submittal of public comment. The department must 

22 address all material comments before taking final action on the permit 

23 F. Setting the 1 0-year actuals PAL level. 

24 (1) Except as provided in Paragraph (2) of Subsection F of20.11.61.20 NMAC, the actuals PAL level 

25 for a major stationary source or a GHG-only source shall be established as the sum of the baseline actual emissions 

26 (as defined in Subsection I of20.11.61.7 NMAC or, for GHGs Paragraph (13) of Subsection B of20.11.61.20 

27 NMAC) of the PAL pollutant for each emissions unit at the source; plus an amount equal to the applicable 

28 significant level for the PAL pollutant under Subsection ZZ of20.11.61.7 NMAC or under the act, whichever is 

29 lower. When establishing the actuals PAL level, for a PAL pollutant, only one consecutive 24-month period must 

30 be used to determine the baseline actual emissions for all existing emissions units. However, a different consecutive 

31 24-month period may be used for each different PAL pollutant. Emissions associated with units that were 

32 permanently shutdown after this 24-month period must be subtracted from the PAL level. The department shall 

33 specify a reduced PAL level(s) (in tons/yr) in the PAL permit to become effective on the future compliance date(s) 

34 of any applicable federal or state regulatory requirement(s) that the department is aware of prior to issuance of the 

35 PAL permit. For instance, if the source owner or operator will be required to reduce emissions from industrial 

36 boilers in half from baseline emissions of60 ppm NOx to a new rule limit of30 ppm, then the permit shall contain a 

37 future effective PAL level that is equal to the current PAL level reduced by half of the original baseline emissions of 

38 such unit(s). 

39 (2) For newly constructed units (which do not include modifications to existing units) on which 

40 actual construction began after the 24-month period, in lieu of adding the baseline actual emissions as specified in 

41 Paragraph (1) of Subsection F of20.11.61.20 NMAC, the emissions must be added to the PAL level in an amount 

42 equal to the potential to emit of the units. 

43 (3) For C02 e based GHG PAL, the actuals PAL level shall be established as the sum of the GHGs 

44 baseline actual emissions (as defined in Paragraph (13) of Subsection B of20.11.61.20 NMAC) ofGHGs for each 

45 emissions unit at the source, plus an amount equal to the amount defined as "significant" on a C02 e basis for the 

46 purposes ofParagraph (3) of Subsection CCC of20.11.61.7 NMAC at the time the PAL permit is being issued. 

47 When establishing the actuals PAL level for a C02 e-based PAL, only one consecutive 24-month period must be 

48 used to determine the baseline actual emissions for all existing emissions units. Emissions associated with units that 

49 were permanently shut down after this 24-month period must be subtracted from the PAL level. The department 

50 shall specify a reduced PAL level (in tpy C02 e) in the PAL permit to become effective on the future compliance 

51 date(s) of any applicable federal or state regulatory requirement(s) that the department is aware of prior to issuance 

52 ofthe PAL permit. 

53 G. Contents of the PAL permit. The PAL permit shall contain, at a minimum, the following 

54 information. 

55 (I) The PAL pollutant and the applicable source-wide emission limitation in tons per year or tpy C02 

56 e. 

20.11.61 NMAC Public Review Draft 2/20/2015 20 
1 (2) The PAL permit effective date and the expiration date of the PAL (PAL effective period). 

2 (3) Specification in the PAL permit that if a major stationary source or a GHG-only source owner or 

3 operator applies to renew a PAL in accordance with Subsection J of20. 11.61.20 NMAC before the end of the PAL 

4 effective period, then the PAL shall not expire at the end of the PAL effective period. It shall remain in effect until a 

5 revised PAL permit is issued by the department. 

6 ( 4) A requirement that emission calculations for compliance purposes include emissions from 

7 startups, shutdowns and malfunctions. 

8 (5) A requirement that, once the PAL expires, the major stationary source or GHG-only source is 

9 subject to the requirements of Subsection I of 20. 11.61.20 NMAC. 

10 (6) The calculation procedures that the major stationary source or GHG-only source owner or 

II operator shall use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-

12 month rolling total for each month as required by Paragraph (1) of Subsection M of20.11.61.20 NMAC. 

13 (7) A requirement that the major stationary source or GHG-on1y source owner or operator monitor all 

14 emissions units in accordance with the provisions under Subsection L of20.11.61 .20 NMAC. 

15 (8) A requirement to retain the records required under Subsection M of 20.11.61.20 NMAC on site. 

16 Such records may be retained in an electronic format. 

17 (9) A requirement to submit the reports required under Subsection N of20.11 .61.20 NMAC by the 

18 required deadlines. 

19 (1 0) Any other requirements that the department deems necessary to implement and enforce the PAL. 

20 (11) A permit for a GHG PAL issued to a GHG-only source shall also include a statement denoting 

21 that GHG emissions at the source will not be subject to regulation under Subsection CCC of 20.11.61. 7 NMAC as 

22 long as the source complies with the PAL. 

23 H. PAL effective period and reopening of the PAL permit. 

24 (I) PAL effective period. The PAL effective period shall be 10 years. 

25 (2) Reopening of the PAL permit. 

26 (a) During the PAL effective period, the department shall reopen the PAL permit to: 

27 (i) correct typographicaVcalculation errors made in setting the PAL or reflect a more 

28 accurate determination of emissions used to establish the PAL; 

29 (ii) reduce the PAL if the owner or operator of the major stationary source creates 

30 creditable emissions reductions for use as offsets under 40 CFR 5 t .165(a)(3)(ii); and 

31 (iii) revise the PAL to reflect an increase in the PAL as provided under Subsection K of 

32 20.11.61.20 NMAC. 

33 (b) The department may reopen the PAL permit for the following: 

34 (i) to reduce the PAL to reflect newly applicable federal requirements (for example, 

35 NSPS) with compliance dates after the PAL effective date; 

36 (ii) to reduce the PAL consistent with any other requirement, that is enforceable as a 

37 practical matter, and that the department may impose on the major stationary source or GHG-only source under the 

38 plan; and 

39 (iii) to reduce the PAL if the department determines that a reduction is necessary to avoid 

40 causing or contributing to a NAAQS or PSD increment violation, or to an adverse impact on an air quality related 

41 values (AQRV) that has been identified for a federal class I area by a federal land manager and for which 

42 information is available to the general public. 

43 (c) Except for the permit reopening in Item (i) of Subparagraph (a) of Paragraph (2) of 

44 Subsection H of20.l 1.61.20 NMAC for the correction of typographical/calculation errors that do not increase the 

45 PAL level, all reopenings shall be carried out in accordance with the public participation requirements of Subsection 

46 E of20.11.61.20 NMAC. 

47 I. Expiration of a PAL. Any PAL that is not renewed in accordance with the procedures in 

48 Subsection J of20.1 1.61.20 NMAC shall expire at the end of the PAL effective period, and the requirements in 

49 Subsection I of20.11 .61.20 NMAC shall apply. 

50 (1) Each emissions unit, or each group of emissions units, that existed under the PAL shall comply 

51 with an allowable emission limitation under a revised permit established according to the procedures in Paragraph 

52 (I) of Subsection I of20.ll.61.20 NMAC. 

53 (a) Within the time frame specified for PAL renewals in Paragraph (2) of Subsection J of 

54 20.11.61.20 NMAC, the major stationary source or GHG-only source shall submit a proposed allowable emission 

55 limitation for each emissions unit, (or each group of emissions units, if such a distribution is more appropriate as 

56 decided by the department), by distributing the PAL allowable emissions for the major stationary source or GHG· 

20.11.61 NMAC Public Review Draft 2/20/2015 21 
I only source among each of the emissions units that existed under the PAL. If the PAL had not yet been adjusted for 

2 an applicable requirement that became effective during the PAL effective period, as required under Paragraph (5) of 

3 Subsection J of20.11.61.20 NMAC, such distribution shall be made as if the PAL had been adjusted. 

4 (b) The department shall decide whether and how the PAL allowable emissions will be 

5 distributed and issue a revised permit incorporating allowable limits for each emissions unit, or each group of 

6 emissions units, as the department determines is appropriate. 

7 (2) Each emissions unit(s) shall comply with the allowable emission limitation on a 12-month rolling 

8 basis. The department may approve the use of monitoring systems (source testing, emission factors, etc.) other than 

9 CEMS, CERMS, PEMS or CPMS to demonstrate compliance with the allowable emission limitation. 

10 (3) Until the department issues the revised permit incorporating allowable limits for each emissions 

II unit, or each group of emissions units, as required under Subparagraph (b) of Paragraph (1) of Subsection I of 

12 20.11.61.20 NMAC, the source shall continue to comply with a source-wide, multi-unit emissions cap equivalent to 

l3 the level ofthe PAL emission limitation. 

14 ( 4) Any physical change or change in the method of operation at the major stationary source or GHG15 only source will be subject to major NSR requirements if such change meets the definition of major modification in 

16 Subsection II of20.1 1.61.7 NMAC. 

17 (5) The major stationary source owner or operator shall continue to comply with any state or federal 

18 applicable requirements (BACT, RACT, NSPS, etc.) that may have applied either during the PAL effective period 

19 or prior to the PAL effective period except for those emission limitations that had been established pursuant to 

20 Subsection D of20.1 1.61.12 NMAC, but were eliminated by the PAL in accordance with the provisions in 

21 Subparagraph (c) of Paragraph (2) of Subsection A of20.11.61.20 NMAC. 

22 J. Renewal of a PAL. 

23 (1) The department shall follow the procedures specified in Subsection E of20.11.61.20 NMAC in 

24 approving any request to renew a PAL for a major stationary source or a GHG-only source, and shall provide both 

25 the proposed PAL level and a written rationale for the proposed PAL level to the public for review and comment. 

26 During such public review, any person may propose a PAL level for the source for consideration by the department. 

27 (2) Application deadline. A major stationary source or GHG-only source owner or operator shall 

28 submit a timely application to the department to request renewal of a PAL. A timely application is one that is 

29 submitted at least six months prior to, but not earlier than 18 months from, the date of permit expiration. This 

30 deadline for application submittal is to ensure that the permit will not expire before the permit is renewed. If the 

31 owner or operator of a major stationary source or GHG-only source submits a complete application to renew the 

32 PAL within this time period, then the PAL shall continue to be effective until the revised permit with the renewed 

33 PAL is issued. 

34 (3) Application requirements. The application to renew a PAL permit shall contain the following 

35 information. 

36 (a) The information required in Subsection C of20.11.61.20 NMAC. 

37 (b) A proposed PAL level. 

38 (c) The sum of the potential to emit of all emissions units under the PAL, with supporting 

39 documentation. 

40 (d) Any other information the owner or operator wishes the department to consider in 

41 determining the appropriate level for renewing the PAL. 

42 (4) PAL adjustment. In determining whether and how to adjust the PAL, the department shall 

43 consider the options outlined in Subparagraphs (a) and (b) of Paragraph (4) Subsection J of20.11.61.20 NMAC. 

44 However, in no case may any such adjustment fail to comply with Subparagraph (c) of Paragraph 4 of Subsection J 

45 of20.11.61.20NMAC. 

46 (a) Ifthe emissions level calculated in accordance with Subsection F of20.11.61.20 NMAC is 

47 equal to or greater than 80 percent of the PAL level, the department may renew the PAL at the same level without 

48 considering the factors set forth in Subparagraph (b) of Paragraph (4) of Subsection J of20.11.61.20 NMAC; or 

49 (b) the department may set the PAL at a level that it determines to be more representative of 

50 the source's baseline actual emissions, or that it determines to be appropriate considering air quality needs, advances 

51 in control technology, anticipated economic growth in the area, desire to reward or encourage the source's voluntary 

52 emissions reductions, or other factors as specifically identified by the department in its written rationale. 

53 (c) Notwithstanding Subparagraphs (a) and (b) of Paragraph (4) ofSubsection J of20.11.6l.20 

54 NMAC: 

55 (i) if the potential to emit ofthe major stationary source or GHG-only source is less than 

56 the PAL, the department shall adjust the PAL to a level no greater than the potential to emit of the source; and 

20.11.61 NMAC Public Review Draft 2120/2015 22 
1 (ii) the department shall not approve a renewed PAL level higher than the current PAL, 

2 unless the major stationary source or GHG-only source has complied with the provisions of Subsection K of 

3 20.11.61.20 NMAC, Increasing a PAL during the PAL effective period. 

4 (5) lfthe compliance date for a state or federal requirement that applies to the PAL source occurs 

5 during the PAL effective period, and if the department has not already adjusted for such requirement, the PAL shall 

6 be adjusted at the time of PAL permit renewal or Title V permit renewal, whichever occurs first. 

7 K. Increasing a PAL during the PAL effective period. 

8 (1) The department may increase a PAL emission limitation only if the major stationary source or 

9 GHG-only source complies with the following provisions. 

10 (a) The owner or operator of the major stationary source or GHG-only source shall submit a 

11 complete application to request an increase in the PAL limit for a PAL major modification. Such application shall 

12 identify the emissions unit(s) contributing to the increase in emissions so as to cause the major stationary or GHG13 only source's emissions to equal or exceed its PAL. 

14 (b) As part of this application, the major stationary source or GHG-only source owner or 

15 operator shall demonstrate that the sum of the baseline actual emissions of the small emissions units, plus the sum of 

16 the baseline actual emissions of the significant and major emissions units assuming application of BACT equivalent 

17 controls, plus the sum of the allowable emissions ofthe new or modified emissions unit(s), exceeds the PAL. The 

18 level of control that would result from BACT equivalent controls on each significant or major emissions unit shall 

19 be determined by conducting a new BACT analysis at the time the application is submitted, unless the emissions 

20 unit is currently required to comply with a BACT or LAER requirement that was established within the preceding 

21 10 years. In such a case, the assumed control level for that emissions unit shall be equal to the level of BACT or 

22 LAER with which that emissions unit must currently comply. 

23 (c) The owner or operator obtains a major NSR permit for all emissions unit(s) identified in 

24 Subparagraph (a) of Paragraph (1) of Subsection B of20.1 1.61.20 NMAC, regardless of the magnitude of the 

25 emissions increase resulting from them, that is, no significant levels apply. These emissions unit(s) shall comply 

26 with any emissions requirements resulting from the major NSR process, for example, BACT, even though they have 

27 also become subject to the PAL or continue to be subject to the PAL. 

28 (d) The PAL permit shall require that the increased PAL level shall be effective on the day any 

29 emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant. 

30 (2) The department shall calculate the new PAL as the sum of the allowable emissions for each 

31 modified or new emissions unit, plus the sum of the baseline actual emissions of the significant and major emissions 

32 units (assuming application of BACT equivalent controls as determined in accordance with Subparagraph (b) of 

33 Paragraph (I) of Subsection K of20.1 1.61.20 NMAC), plus the sum of the baseline actual emissions of the small 

34 emissions units. 

35 (3) The PAL permit shall be revised to reflect the increased PAL level pursuant to the public notice 

36 requirements of Subsection E of20.11.61.20 NMAC. 

37 L. Monitoring requirements for PALs. 

38 (I) General requirements. 

39 (a) Each PAL permit must contain enforceable requirements for the monitoring system that 

40 accurately determines plantwide emissions of the PAL pollutant in terms of mass per unit of time or C02 e per unit 

41 of time. Any monitoring system authorized for use in the PAL permit must be based on sound science and meet 

42 generally acceptable scientific procedures for data quality and manipulation. Additionally, the information 

43 generated by such system must meet minimum legal requirements for admissibility in a judicial proceeding to 

44 enforce the PAL permit. 

45 (b) The PAL monitoring system must employ one or more of the four general monitoring 

46 approaches meeting the minimum requirements set forth in Paragraph (2) of Subsection L of20.11.61.20 NMAC 

47 and must be approved by the department. 

48 (c) Notwithstanding Subparagraph (b) of Paragraph (I) of Subsection L of20.11.61.20 NMAC, 

49 you may also employ an alternative monitoring approach that meets Subparagraph (a) of Paragraph (I) of 

50 Subsection L of20.11.61.20 NMAC if approved by the department. 

51 (d) Failure to use a monitoring system that meets the requirements of20.ll.6 1.20 NMAC 

52 renders the PAL invalid. 

53 (2) Minimum performance requirements for approved monitoring approaches. The following 

54 are acceptable general monitoring approaches when conducted in accordance with the minimum requirements in 

55 Paragraphs (3) through (9) of Subsection L of20.11.61.20 NMAC: 

56 (a) mass balance calculations for activities using coatings or solvents; 

20.11.61 NMAC Public Review Draft 2/20/2015 23 
I (b) CEMS; 

2 (c) CPMS or PEMS; and 

3 (d) emission factors. 

4 (3) Mass balance calculations. An owner or operator using mass balance calculations to monitor 

5 PAL pollutant emissions from activities using coating or solvents shall meet the following requirements: 

6 (a) provide a demonstrated means of validating the published content of the PAL pollutant that 

7 is contained in or created by all materials used in or at the emissions unit; 

8 (b) assume that the emissions unit emits all of the PAL pollutant that is contained in or created 

9 by any raw material or fuel used in or at the emissions unit, if it cannot otherwise be accounted for in the process; 

10 and 

11 (c) where the vendor of a material or fuel, which is used in or at the emissions unit, publishes a 

12 range of pollutant content from such material, the owner or operator must use the highest value of the range to 

13 calculate the PAL pollutant emissions unless the department determines there is site-specific data or a site-specific 

14 monitoring program to support another content within the range. 

15 ( 4) CEMS. An owner or operator using CEMS to monitor PAL pollutant emissions shall meet the 

16 following requirements: 

17 (a) CEMS must comply with applicable performance specifications found in 40 CFR part 60, 

18 Appendix B; and 

19 (b) CEMS must sample, analyze, and record data at least every 15 minutes while the emissions 

20 unit is operating. 

21 (S) CPMS or PEMS. An owner or operator using CPMS or PEMS to monitor PAL pollutant 

22 emissions shall meet the following requirements: 

23 (a) the CPMS or the PEMS must be based on current site-specific data demonstrating a 

24 correlation between the monitored parameter(s) and the PAL pollutant emissions across the range of operation of the 

25 emissions unit; and 

26 (b) each CPMS or PEMS must sample, analyze, and record data at least every 15 minutes, or at 

27 another less frequent interval approved by the department, while the emissions unit is operating. 

28 (6) Emission factors. An owner or operator using emission factors to monitor PAL pollutant 

29 emissions shall meet the following requirements: 

30 (a) all emission factors shall be adjusted, if appropriate, to account for the degree of uncertainty 

31 or limitations in the factors' development; 

32 (b) the emissions unit shall operate within the designated range of use for the emission factor, if 

33 applicable; and 

34 (c) if technically practicable, the owner or operator of a significant emissions unit that relies on 

35 an emission factor to calculate PAL pollutant emissions shall conduct validation testing to determine a site-specific 

36 emission factor within six months ofPAL permit issuance, unless the department determines that testing is not 

37 required. 

38 (7) A source owner or operator must record and report maximum potential emissions without 

39 considering enforceable emission limitations or operational restrictions for an emissions unit during any period of 

40 time that there is no monitoring data, unless another method for determining emissions during such periods is 

41 specified in the PAL permit. 

42 (8) Notwithstanding the requirements in Paragraphs (3) through (7) of Subsection L of 20.11.61.20 

43 NMAC, where an owner or operator of an emissions unit cannot demonstrate a correlation between the monitored 

44 parameter(s) and the PAL pollutant emissions rate at all operating points of the emissions unit, the department shall, 

45 at the time of permit issuance: 

46 (a) establish default value(s) for determining compliance with the PAL based on the highest 

47 potential emissions reasonably estimated at such operating point(s); or 

48 (b) determine that operation of the emissions unit during operating conditions when there is no 

49 correlation between monitored parameter(s) and the PAL pollutant emissions is a violation of the PAL. 

50 (9) Revalidation. All data used to establish the PAL pollutant must be revalidated through 

51 performance testing or other scientifically valid means approved by the department. Such testing must occur at least 

52 once every five years after issuance of the PAL. 

53 M. Record keeping requirements. 

54 (1) The PAL permit shall require an owner or operator to retain a copy of all records necessary to 

55 determine compliance with any requirement of20.11.61.20 NMAC and of the PAL, including a determination of 

56 each emissions unit's 12-month rolling total emissions, for five years from the date of such record. 

20.11.61 NMAC Public Review Draft 2/20/2015 24 
1 (2) The PAL permit shall require an owner or operator to retain a copy of the following records, for 

2 the duration ofthe PAL effective period plus five years: 

3 (a) a copy of the PAL permit application and any applications for revisions to the PAL; and 

4 (b) each annual certification of compliance pursuant to 20.11.42 NMAC, Operating Permits, 

5 and the data relied on in certifYing the compliance. 

6 N. Reporting and notification requirements. The owner or operator shall submit semi-annual 

7 monitoring reports and prompt deviation reports to the department in accordance with 20.11.42 NMAC, Operating 

8 Permits. The reports shall meet the following requirements. 

9 (1) Semi-annual report. The semi-annual report shall be submitted to the department within 30 days 

I 0 of the end of each reporting period. This report shall contain the following information. 

11 (a) The identification of owner and operator and the permit number. 

12 (b) Total annual emissions (expressed on a mass-basis in tons/year, or expressed in tpy C02 e) 

13 based on a 12-month rolling total for each month in the reporting· period recorded pursuant to Paragraph (l) of 

14 Subsection M of20.11.61.20 NMAC. 

15 (c) All data relied upon, including, but not limited to, any quality assurance or quality control 

16 data, in calculating the monthly and annual PAL pollutant emissions. 

17 (d) A list of any emissions units modified or added to the major stationary source or GHG-only 

18 source during the preceding six-month period. 

19 (e) The number, duration, and cause of any deviations or monitoring malfunctions (other than 

20 the time associated with zero and span calibration checks), and any corrective action taken. 

21 (f) A notification of a shutdown of any monitoring system, whether the shutdown was 

22 permanent or temporary, the reason for the shutdown, the anticipated date that the monitoring system will be fully 

23 operational or replaced with another monitoring system, and whether the emissions unit monitored by the 

24 monitoring system continued to operate, and the calculation of the emissions of the pollutant or the number 

25 determined by method included in the permit, as provided by Paragraph (7) of Subsection L of 20.11.61.20 NMAC. 

26 (g) A signed statement by the responsible official as defined by 20.11.42.7 NMAC certifYing 

27 the truth, accuracy, and completeness of the information provided in the report. 

28 (2) Deviation report. The major stationary source or GHG-only source owner or operator shall 

29 promptly submit reports of any deviations or exceedance of the PAL requirements, including periods where no 

30 monitoring is available. A report submitted pursuant to 40 CFR 70.6(a)(3)(iii)(B) shall satisfY this reporting 

31 requirement. The deviation reports shall be submitted within the time limits prescribed by the applicable program 

32 implementing 40 CFR 70.6(a)(3)(iii)(B). The reports shall contain the following information: 

33 (a) the identification of owner and operator and the permit number; 

34 (b) the PAL requirement that experienced the deviation or that was exceeded; 

35 (c) emissions resulting from the deviation or the exceedance; and 

36 (d) a signed statement by the responsible official as defined by 20.11 .42.7 NMAC certifYing 

37 the truth, accuracy, and completeness of the information provided in the report. 

38 (3) Revalidation results. The owner or operator shall submit to the department the results of any 

39 revalidation test or method within three months after completion of such test or method. 

40 0. Transition requirements. 

41 (1) The department may not issue a PAL that does not comply with the requirements of Subsections 

42 A through 0 of20.11.61.20 NMAC after March 3, 2003. 

43 (2) The department may supersede any PAL which was established prior to March 3, 2003 with a 

44 PAL that complies with the requirements of Subsections A through 0 of20.11.61.20 NMAC. 

45 [20.11.61.20 NMAC- N, 1/23/06; A, 8/30110; A, 1/10/11; A, 5/13/13] 

46 

47 20.ll.61.21 PUBLIC PARTICIPATION AND NOTIFICATION: 

48 A. The department shall, within 30 days after receipt of an application, review such application and 

49 determine whether it is administratively complete or there is any deficiency in the application or information 

50 submitted. To be deemed administratively complete, the application must meet the requirements of20.11.61.13 

51 NMAC in addition to the requirements of20. 1 1.41 NMAC. If the application is deemed: 

52 (I) administratively complete, a letter to that effect shall be sent by certified mail to the applicant; 

53 (2) administratively incomplete, a letter shall be sent by certified mail to the applicant stating what 

54 additional information or points of clarification are necessary to deem the application administratively complete; 

55 upon receipt of the additional information or clarification, the department shall promptly review such information 

56 and determine whether the application is administratively complete; 

20.11.61 NMAC Pub lie Review Draft 2/20/20 15 25 
1 (3) administratively complete but no permit is required, a letter shall be sent by certified mail to the 

2 applicant informing the applicant of the determination. 

3 B. For purposes of determining minor source baseline date pursuant to 40 CFR 51: 

4 (I) an application is complete when it contains all the information necessary for processing the 

5 application; designating an application complete for purposes of 40 CFR 51 does not preclude the department from 

6 requesting or accepting any additional information; and 

7 (2) in the event that additional information is submitted to remedy any deficiency in the application 

8 or information submitted, the date of receipt of the application shall be the date on which the department received all 

9 required information. 

I 0 C. Within one year arter receipt of a complete application, the department shall: 

11 (1) Make a preliminary determination whether construction should be approved, approved with 

12 conditions, or disapproved. 

13 (2) Make available at the department district and local office nearest to the proposed source a copy of 

14 all materials the applicant submitted, a copy of the preliminary determination, and a copy or summary of other 

15 materials, if any, considered in making the preliminary determination. 

16 (3) Notify the public by advertisement in a newspaper of general circulation in the area in which the 

17 proposed source would be constructed: 

18 (a) ofthe application; 

19 (b) the preliminary determination; 

20 {c) the degree of increment consumption that is expected from the source or modification; and 

21 (d) of the opportunity for comment at a public hearing as well as written public comment; the 

22 public comment period shall be for 30 days from the date of such advertisement. 

23 {4) Send a copy of the notice of public comment to: 

24 (a) the applicant; 

25 (b) the administrator; and 

26 (c) officials and agencies having jurisdiction over the location where the proposed construction 

27 would occur as follows: any other state or local air pollution control agencies; the chief executives of the city and 

28 county where the source would be located; any comprehensive regional land use planning agency; and any state, 

29 federal land manager, or Indian governing body whose lands maybe affected by emissions from the source or 

30 modification. 

31 (5) Provide opportunity for a public hearing for interested persons to appear and submit written or 

32 oral comments on the air quality impact of the source, alternatives to it, the control technology required, and other 

33 appropriate considerations. 

34 (6) Consider all written comments submitted within a time specified in the notice of public comment 

35 and all comments received at any public hearing(s) in making a final decision on the approvability of the 

36 application. The department shall make all comments available for public inspection in the same locations where 

37 the department made available preconstruction information relating to the proposed source or modification. 

38 (7) Within 180 days after an application is deemed administratively complete, unless the director 

39 grants an extension not to exceed 90 days for good cause: 

40 {a) make a final determination of whether construction should be approved, approved with 

41 conditions, or disapproved; and 

42 (b) notify the applicant in writing of the final determination and make such notification 

43 available for public inspection at the same location where the department made available preconstruction 

44 information and public comments relating to the source. 

45 [20.11.61.21 NMAC- N, 1/23/06; A, 8/30/10] 

46 

47 20.11.61.22 STACK HEIGHT CREDIT: The department shall review all applications in accordance with 

48 the provisions of 20.11.43 NMAC, Stack Heights Requirements. 

49 [20.11.61.22 NMAC- Rp, 20.11.61.19 NMAC, 1/23/06] 

50 

51 20.ll.61.23 EXCLUSIONS FROM INCREMENT CONSUMPTION: 

52 A. Following a public hearing, the director may exclude the following concentrations in determining 

53 compliance with a maximum allowable increase: 

54 (1) concentrations attributable to the increase in emissions from stationary sources which have 

55 converted from the use of petroleum products, natural gas, or both by reason of an order in effect under Section 2 (a) 

20.11.61 NMAC Public Review Draft 2/20/2015 26 
1 and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation), overthe 

2 emissions from such sources before the effective date of such an order; 

3 (2) concentrations attributable to the increase in emissions from sources which have converted from 

4 using natural gas by reason of natural gas curtailment plan in effect pursuant to the Federal Power Act, over the 

5 emissions from such sources before the effective date of such plan; 

6 (3) concentrations of particulate matter attributable to the increase in emissions from construction or 

7 other temporary emission-related activities of new or modified sources; 

8 (4) the increase in concentrations attributable to new sources outside the United States over the 

9 concentrations attributable to existing sources which are included in the baseline concentration; and 

10 (5) concentrations attributable to the temporary increase in emissions of sulfur dioxide, particulate 

11 matter, or nitrogen oxides from stationary sources which are affected by plan revisions approved by the 

12 administrator as meeting the criteria specified in Subsection D of20.11.61.23 NMAC. 

13 B. If the plan provides thatthe concentrations to which Paragraph ( 1) or (2) of Subsection A of 

14 20.11.61.23 NMAC refers, shall be excluded, it shall also provide that no exclusion of such concentrations shall 

15 apply more than five years after the effective date ofthe order to which Paragraph (1) of Subsection A of 

16 20.11.61.23 NMAC refers, or the plan to which Paragraph (2) of Subsection A of20.11.61.23 NMAC refers, 

17 whichever is applicable. If both such order and plan are applicable, no such exclusion shall apply more than five 

18 years after the later of such effective dates. 

19 C. [Reserved] 

20 D. For purposes of excluding concentrations pursuant to Paragraph (5) of Subsection A of 

21 20.11.61.23 NMAC, the administrator may approve a plan revision that: 

22 (I) specifies the time over which the temporary emissions increase of sulfur dioxide, particulate 

23 matter, or nitrogen oxides would occur such time is not to exceed 2 years in duration unless a longer time is 

24 approved by the administrator; 

25 (2) specifies that the time period for excluding certain contributions in accordance with Paragraph (I) 

26 of Subsection D of 20.11.61.23 NMAC, is not renewable; 

27 (3) allows no emissions increase from a stationary source which would: 

28 (a) impact a class I area or an area where an applicable increment is known to be violated; or 

29 (b) cause or contribute to the violation of a NAAQS; 

30 (4) requires limitations to be in effect the end of the time period specified in accordance with 

31 Paragraph (I) of Subsection D of20.11.61.23 NMAC, which would ensure that the emissions levels from stationary 

32 sources affected by the plan revision would not exceed those levels occurring from such sources before the plan 

33 revision was approved. 

34 [20.11.61.23 NMAC- Rp, 20.11.61.21 NMAC, 1/23/06; A, 8/30110; A, 5/13/13] 

35 

36 10.11.61.24 SOURCES IMPACTING FEDERAL CLASS I AREAS- ADDITIONAL 

37 REQUIREMENTS: 

38 A. Notice to EPA. The department shall transmit to the administrator and the federal land manager a 

39 copy of each permit application relating to a major stationary source or major modification proposing to locate 

40 within I 00 kilometers of any federal class I area. The complete permit application shall be transmitted within 30 

41 days of receipt and 60 days prior to any public hearing on the application. The department shall include all relevant 

42 information in the permit application. Relevant information shall include an analysis of the proposed source's 

43 anticipated impacts on visibility in the federal class I area. The department shall consult with all affected federal 

44 land managers as to the completeness of the permit application and shall consider any analysis performed by the 

45 federal land manager concerning the impact of the proposed major stationary source or major modification on 

46 AQRV. This consideration shall include visibility, if such analysis is received within 30 days after the federal land 

47 manager receives a copy of the complete application. Additionally, the department shall notifY any affected federal 

48 land manager within 30 days from the date the department receives a request for a pre-application meeting from a 

49 proposed source subject to 20.11.61 NMAC. Notice shall be provided to the administrator and federal land manager 

50 of every action related to the consideration of such permit. The department shall also provide the federal land 

51 manager and the administrator with a copy of the preliminary determination required under 20.11.61.21 NMAC and 

52 shall make available to them any materials used in making that determination. In any case where the department 

53 disagrees with the federal land manager's analysis of source impact on AQRV, the department shall, either explain 

54 its decision or give notice to the federal land manager as to where the explanation can be obtained. In the case 

55 where the department disagrees with the federal land manager's analysis, the department will also explain its 

20.11.61 NMAC Public Review Draft 2/20/2015 27 
1 decision or give notice to the public by advertisement in a newspaper of general circulation in the area in which the 

2 proposed source would be constructed, as to where the decision can be obtained. 

3 B. The department shall transmit to air quality control agencies of neighboring states and Indian 

4 governing bodies a copy of each permit application having the potential to affect federal class I areas or increment 

5 consumption in areas under their jurisdiction. The department shall also provide the affected air quality control 

6 agencies and Indian governing bodies with a copy of the preliminary determination required under 20.11.61.21 

7 NMAC and shall make available to them any materials used in making that determination. The department shall 

8 include a provision for a 60 day comment period for the federal land managers before any public hearing on a permit 

9 application is held. 

10 C. Denial- impact on AQRV: The federal land manager of any such lands may demonstrate to the 

I I department that the emissions from a proposed source or modification would have an adverse impact on the AQRV 

12 (including visibility), of those lands, notwithstanding that the change in air quality resulting from emissions from 

13 such proposed source or modification would not cause or contribute to concentrations which would exceed the 

14 maximum allowable increases for a federal class I area. lfthe department concurs with such demonstration, then the 

15 source shall not be issued a permit. 

16 D. Class I waivers: The owner or operator of a proposed source or modification may demonstrate to 

17 the federal land manager that the emissions from such proposed source or modification would have no adverse 

18 impact on the AQRV of any such lands (including visibility), notwithstanding that the change in air quality resulting 

19 from emissions from such source or modification would cause or contribute to concentrations which would exceed 

20 the maximum allowable increases for a federal class I area. If the federal land manager concurs with such 

21 demonstration and so certifies to the department, the department may: provided, that the applicable requirements are 

22 otherwise met, issue the permit with such emission limitations as may be necessary to assure that emissions of sulfur 

23 dioxide, PM2.s, PM10 and oxides of nitrogen would not exceed the maximum allowable increases over minor source 

24 baseline concentrations for such pollutants, as shown in Table 5 of20.11.61.30 NMAC. 

25 E. For the case where the federal land manager does not perform an impact analysis with respect to 

26 visibility impairment in a federal class I area, the department may perform such an analysis. The department shall 

27 not issue the source a permit if the department determines that an adverse impact on visibility would occur. The 

28 adverse impact must be due, primarily, to the operation of the proposed source or modification. 

29 F. Sulfur dioxide waiver by governor with FLM concurrence: The owner or operator of a 

30 proposed major stationary source or major modification, which cannot be approved under Subsection D of 

31 20.11.61.24 NMAC, may demonstrate to the governor that the source or modification cannot be constructed by 

32 reason of any maximum allowable increase for sulfur dioxide for a period of24 hours or less applicable to any class 

33 I area and, in the case offederal mandatory class I areas, that a waiver from this requirement would not adversely 

34 affect the AQRV of the area (including visibility). The governor, after consideration of the federal land manager's 

35 recommendation (if any) and subject to his concurrence, may, after notice and public hearing, grant a waiver from 

36 such maximum allowable increase. lfthe waiver is granted, the department shall issue a permit to the owner or 

3 7 operator of the source or modification. Any owner or operator of a source or modification who obtains a permit 

38 under 20.11.61 NMAC shall comply with sulfur dioxide emissions limitations. These limitations do not allow 

39 increases of ambient concentrations, above the baseline concentration, to exceed the levels found in Table 6 of 

40 20.11.61.31 NMAC for periods of 24 hours or less for more than 18 days, not necessarily consecutive, in any annual 

41 period. 

42 G. Sulfur dioxide waiver by governor with the president's concurrence. In any case where the 

43 governor recommends a waiver in which the federal land manager does not concur, the recommendations ofthe 

44 governor and the federal land manager shall be transmitted to the president through the office of the governor. The 

45 president may approve the governor's recommendation if he finds that the waiver is in the national interest. lfthe 

46 waiver is approved, the department shall issue the permit. Any source or modification that obtains a permit under 

47 20.11.61 NMAC shall comply with sulfur dioxide emissions limitations. These limitations do not allow increases in 

48 ambient concentrations, above the baseline concentration, to exceed the levels found in Table 6 of 20.11.61.31 

49 NMAC for periods of24 hours or less for more than 18 days, not necessarily consecutive, in any annual period. 

50 [20.11.61.24 NMAC- Rp, 20.11.61.22 NMAC, l/23/06; A, 8/30/10; A, 5/13/13] 

51 

52 20.11.61.25 RESTRICTIONS ON AREA CLASSIFICATIONS: 

53 A. Mandatory federal class I areas: 

54 (I) All orthe following areas which were in existence on August 7, 1977, shall be class I areas 

55 and may not be redesignated: 

56 (a) international parks (all of them); 

20.11.61 NMAC Public Review Draft 2,20/2015 28 
I (b) national wilderness areas which exceed 5,000 acres in size; 

2 (c) national memorial parks which exceed 5,000 acres in size; and 

3 (d) national parks which exceed 6,000 acres in size. 

4 (2) Specifically for New Mexico, these areas are: 

5 (a) Bandelier wilderness, administered by national park service (NPS); 

6 (b) Bosque del Apache wilderness, administered by national fish and wildlife service (NFWS); 

7 (c) Carlsbad caverns national park, administered by NPS; 

8 (d) Gila wilderness, administered by national forest service (NFS); 

9 (e) Pecos wilderness, administered by NFS; 

l 0 (t) Salt Creek wilderness, administered by NFWS; 

II (g) San Pedro Parks wilderness, administered by NFS; 

12 (h) Wheeler Peak wilderness, administered by NFS; and 

13 (i) White Mountain wilderness, administered by NFS. 

14 B. Areas which may be redesignated only as class I or class II: 

15 (I) The following areas may be redesignated only as class I or II: 

16 (a) an area which, as of August 7, 1977, exceeded 10,000 acres in size and was a national 

17 monument, national primitive area, national preserve, national recreational area, national wild and scenic river, 

18 national wildlife refuge; and 

19 (b) a national park or national wilderness area established after August 7, 1977 which exceeds 

20 10,000 acres in size. 

21 (2) Specifically for New Mexico, these areas include (but are not necessarily limited to): 

22 (a) Apache Kid wilderness, administered by national forest service (NFS); 

23 (b) Bandelier national monument, administered by national park service (NPS); 

24 (c) Bitter Lake national wildlife refuge, administered by national fish and wildlife service 

25 (NFWS); 

26 (d) Blue Range wilderness, administered by NFS; 

27 (e) Bosque del Apache natio.nal wildlife refuge, administered by NFWS; 

28 (t) Capitan mountains wilderness, administered by NFS; 

29 (g) Cebolla wilderness, administered by bureau of land management (BLM); 

30 (h) Chama River Canyon wilderness, administered by NFS; 

31 (i) Cruces Basin wilderness, administered by NFS; 

32 (j) De-na-zin wilderness, administered by BLM; 

33 (k) El Mal pais national monument, administered by NPS; 

34 (I) Latir Peak wilderness, administered by NFS; 

35 (m) Manzano mountain wilderness, administered by NFS; 

36 (n) San Andres national wildlife refuge, administered by NFWS; 

37 (o) Sandia Mountain wilderness, administered by NFS; 

38 (p) Sevilleta national wildlife refuge, administered by NFWS; 

39 (q) West Malpais wilderness, administered by BLM; 

40 (r) White Sands national monument, administered by NPS; and 

41 (s) Withington Wilderness, administered by NFS. 

42 [20.11.61.25 NMAC- Rp, 20.11.61.20 NMAC, 1123/06; A, 8/30/l 0] 

43 

44 20.11.61.26 TABLE 1- PSD SOURCE CATEGORIES: 

45 A. Carbon black plants (furnace process). 

46 B. Charcoal production plants. 

47 C. Chemical process plants (the term chemical processing plant shall not include ethanol production 

48 facilities that produce ethanol by natural fermentation included in NAICS Codes 325193 or 312140). 

49 D. Coal cleaning plants (with thermal dryers). 

50 E. Coke oven batteries. 

51 F. Fossil fuel boilers (or combinations thereof) totaling more than 250 million BTU/hr heat input. 

52 G. Fossil fuel-fired steam electric plants of more than 250 million BTU/hr heat input. 

53 H. Fuel conversion plants. 

54 I. Glass fiber processing plants. 

55 J. Hydrofluoric acid plants. 

56 K. Iron and steel mills. 

20.11.61 NMAC Public Review Draft 2120/2015 29 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

L. Kraft pulp mills. 

M. Lime plants. 

N. Municipal incinerators capable of charging more than 250 tons of refuse per day. 

0. Nitric acid plants. 

P. Petroleum refineries. 

Q. Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels. 

R. Phosphate rock processing plants. 

S. Portland cement plants. 

T. Primary aluminum ore reduction plants. 

U. Primary copper smelters. 

V. Primary lead smelters. 

W. Primary zinc smelters. 

X. Secondary metal production plants. 

Y. Sintering plants. 

Z. Sulfur recovery plants. 

AA. Sulfuric acid plants. 

88. Taconite ore processing plants. 

(20.11.61.26 NMAC- Rp, 20.11.61.23 NMAC, 1123/06; A, 8/30/1 0] 

20 11.61.27 TABLE 2 - SIGNIFICANT EMISSION RATES: 

POLLUTANT EMISSION RATE (TONS/YR) 

Carbon monoxide 100 

Fluorides 3 

Lead 0.6 

Municipal waste combustor: 

Acid gases (measured as sulfur dioxide and hydrogen chloride) 40 (36 megagrams/year) 

Metals (measured as particulate matter) 15 (14 megagrams/year) 

Organics (measured as total tetra- through octa-chlorinated 0.0000035 (0.0000032 megagrams/yr) 

dibenzo-p-dioxins and dibenzofurans) 

Municipal solid waste landfill emissions (measured as NMOC) 50 (45 megagrams/year) 

Nitrogen oxides 40 

Ozone 40VOC orNOx 

Particulate Matter: 

Particulate matter emissions 25 

PM10 emissions 15 

PM2.s emissions 10 tpy of direct PM 2_5 emissions; 40 tpy 

of sulfur dioxide emissions; 40 tpy of 

nitrogen oxide emissions unless 

demonstrated not to be a PM 2 5 

precursor under Subsection WW of 

20.11.61.7 NMAC 

Sulfur compounds 

Hydrogen sulfide (H2S) 10 

Reduced sulfur compounds (incl. H2S) 10 

Sulfur dioxide 40 

Sulfuric acid mist 7 

Total reduced sulfur (incl. H2S) 10 

Any other regulated NSR pollutant that is not listed in this table Any emission rate 

20.11.61 NMAC Public Review Draft 2!20/2015 30 
1 

2 

3 

4 

5 

6 

7 

8 

9 

Each regulated pollutant Emission rate or net emissions increase 

associated with a major stationary source 

or major modification that causes an air 

quality impact of one microgram per 

cubic meter or greater (24-hr average) in 

any Class I Federal area located within 

I 0 km of the source. 

[20.11.61.27 NMAC- Rp, 20.11.61.24 NMAC, 1/23/06; A, 8/30/10; A, 1/10/11; A, 5/13/13] 

20 ll6128 . . TABLE 3- SIGNIFICANT MONlTORING CONCENTRATIONS· 

AIR QUALITY 

POLLUTANT CONCENTRATION AVERAGING TIME micrograms per cubic meter 

(IJ.g/m3) 

Carbon monoxide 575 8 hours 

Fluorides 0.25 24 hours 

Lead 0.1 3 months 

Nitrogen dioxide 14 Annual 

Ozone b 

Particulate matter (PM10) 10 24 hours 

Sulfur compounds 

~fide(H1S) 0.20 l hour 

fur compounds (incl. H2S) 10 1 hour 

Sulfur dioxide 13 24 hours 

Sulfuric acid mist a 

Total reduced sulfur (incl. H2S) 10 I hour 

a· No acceptable monitoring techniques available at this time. Therefore, monitoring is not required until 

acceptable techniques are available. 

b -No de minimis air quality level is provided for ozone. However, any net emissions increase of I 00 tons 

per year or more of volatile organic compounds or nitrogen oxides subject to PSD would be required to 

perform an ambient impact analysis, including the gathering of ambient air quality data. 

[20.11.61.28 NMAC- Rp, 20.11.61.25 NMAC, 1/23/06; A, 5/15/06; A, 8/30/10] 

20.11.61.29 TABLE 4- ALLOW ABLE PSD INCREMENTS: 

Pollutant Maximum allowable increase micrograms per cubic meter 

(Jlg/m3) 

Class I Class II Class III 

Nitro2en Dioxide 

annual arithmetic mean 2.5 25 50 

Particulate Matter 

~ithmotio m"n 1 4 8 

maximum 2 9 18 

arithmetic mean 4 17 34 

PM10, 24-hour maximum s• 30" 60" 

Sulfur Dioxide 

annual arithmetic mean 2 20 40 

24-hour maximum 5" 91 1 182" 

3-hour maximum 25. 512. 700" 

a -Not to be exceeded more than once a year. 

[20.11.61.29 NMAC- Rp, 20.11.61.26 NMAC, 1/23/06; A, 5/15/06; A, 8/30/10; A, 5113/13] 

20.11.61.30 TABLE 5- MAXIMUM ALLOW ABLE INCREASES FOR CLASS I VARIANCES: 

20.11.61 NMAC Public Review Draft 2/20/2015 31 
Pollutant Maximum allowable increase 

Micrograms per cubic meter (J.tg/m3

) 

Nitrogen Dioxide 

annual arithmetic mean 25 

Particulate Matter 

PM2.s, annual arithmetic mean 4 

PM25, 24-hour maximum 9 

PM10, annual arithmetic mean 17 

PM10, 24-hour maximum 30 

Sulfur Dioxide 

annual arithmetic mean 20 

24-hour maximum 91 

3-hour maximum 325 

1 {20.11.61.30 NMAC- N, 1/23/06; A, 8/3011 0; A, 5113113] 

2 

3 10.11.61.31 TABLE 6- MAXIMUM ALLOWABLE INCREASE FOR SULFUR DIOXIDE WAIVER 

4 BY GOVERNOR: 

5 

6 

Period of Exposure 

7 HISTORY OF 20.11.61 NMAC: 

8 Pre-NMAC History: The material in this part was derived from that previously filed with the commission of 

9 public records -state records center and archives. 

10 Regulation No. 29, Prevention of Significant Deterioration, l/3/85; 

I 1 Regulation No. 29, Prevention of Significant Deterioration, 6/18/86; 

12 Regulation No. 29, Prevention of Significant Deterioration, 3/16/89; 

13 Regulation No. 29, Prevention of Significant Deterioration, 4/24/90; 

14 Regulation No. 29, Prevention of Significant Deterioration, 2/26/93. 

IS 

16 History of Repealed Material: 

17 20 NMAC 11.61, Prevention of Significant Deterioration (filed 10/27/95) repealed 12/J/95. 

18 20.11.61 NMAC, Prevention of Significant Deterioration (filed 8/30/02) repealed 1/23/06. 

19 

20 Other History: 

21 Regulation No. 29, Prevention of Significant Deterioration, filed 2/26/93 renumbered, reformatted and replaced by 

22 20 NMAC 11.61, Prevention of Significant Deterioration, filed 10/27/95. 

23 20 NMAC 11.61, Prevention of Significant Deterioration, filed 10/27/95 replaced by 20 NMAC 11.61, Prevention 

24 of Significant Deterioration, filed 3/18/99. 

25 20 NMAC 11.61, Prevention of Significant Deterioration, filed 3/18/99 renumbered, reformatted, amended, and 

26 replaced by 20.11.61 NMAC, Prevention of Significant Deterioration, effective 10/1/02. 

27 20.11.61 NMAC, Prevention of Significant Deterioration (filed 8/30/02) was replaced by 20.11.61 NMAC, 

28 Prevention of Significant Deterioration, effective 1/23/06. 

29 

20.11.61 NMAC Public Review Draft 2/20/2015 32 
ALBUQUERQUE-BERNALILLO COUNTY 

AIR QUALITY CONTROL BOARD 

'f . • ' • I '- : -.~ 

15 FEB 20 PH 2: 39 

IN THE MATTER OF THE PETITION TO AMEND 20.11.61 NMAC, 

PREVENTION OF SIGNIFICANTDETERIORA TION, AND SUBMIT THE 

ADOPTED 20.11.61 NMAC TO THE U.S. ENVIRONMENTAL PROTECTION 

AGENCY FOR PROPOSED INCORPORATION INTO THE NEW MEXICO 

STATE IMPLEMENTATION PLAN FOR AIR QUALITY (SIP). 

Air Quality Program, 

Environmental Health Department, 

City of Albuquerque, Petitioner 

AQCB Petition No. 2015-2 

Petition to amend 20.11.61 NMAC, Prevention of Significant Deterioration, and 

submit the adopted 20.11.61 NMAC to the U.S. Environmental Protection Agency 

for proposed incorporation into the New Mexico State Implementation Plan (SIP). 

1. The City of Albuquerque ("City"), by and through the Air Quality 

Program (AQP) of the Environmental Health Department (Department), asks the 

Albuquerque-Bernalillo County Air Quality Control Board (Air Board) to adopt 

amendments to 20.11.61 NMAC, Prevention Of Significant Deterioration. The 

Amendments will be submitted to EPA as a revision to the SIP. This Petition includes a 

request for a hearing on these matters and permission to provide a court reporter and 

hearing officer for the hearing. The New Mexico Air Quality Control Act (Air Act), 

NMSA 1978, Sections 74-2-4 and 74-2-5.B(1) [1967 as amended through 2007] 

authorizes and requires the Air Board to adopt, amend, or replace air quality regulations 

and to adopt air quality plans (SIPs) under NMSA 1978, Section 74-2-5.B(2). As 

grounds, Petitioner states the following: 

1 
Background 

2. The provisions governing state implementation of the Prevention of 

Signification Deterioration (PSD) permit program are contained in the CFR Title 40, 

Protection of Environment, Part 51, Requirements for Submittal of Implementation Plans, 

Subpart I, Review of New Sources and Modifications, Section 166, Prevention of 

Significant Deterioration of Air Quality. The provisions governing direct federal 

implementation of PSD are found at Title 40, Protection of Environment, Part 52, 

Approval and Promulgation of Implementation Plans, Subpart A, General Provisions, 

Section 21, Prevention of Significant Deterioration of Air Quality. Albuquerque -

Bernalillo County's implementation ofthe PSD program is governed by 20.11.61 

NMAC, Prevention of Significant Deterioration. Under the PSD program, when a source 

applies for a permit to emit a regulated pollutant in an area that meets the NAAQS, the 

state and EPA must determine if emissions of the regulated pollutant from the source will 

cause "significant" deterioration in air quality. 

3. On AprillO, 2013, the Air Board approved amendments to 20.11.61 

NMAC, Sections 2, 5, 6, 7, 10, 11, 12, 14, 15, 18, 20, 23, 24, 27, 29 and 30, effective 

May 13,2013. These amendments were required by several EPA rulemak.ings related to 

PSD, which revised the Code of Federal Regulations and thus required revisions to the 

SIP. 

4. On July 26,2013, New Mexico Environment Secretary Ryan Flynn 

submitted the amendments to 20.11.61 NMAC to EPA as a proposed SIP revision. EPA 

review of the proposed revision is underway. 

2 
Statement of Reasons 

5. On February 12,2015, EPA informed the Air Quality Program that it is 

unable to approve two particular portions ofthe proposed 2013 SIP revision. These 

portions are found in the currently effective (locally) version of20.11.61 NMAC, in 

particular 20.11.61.7(CCC) NMAC and 20.11.61.11(B) NMAC. EPA stated that these 

provisions are not consistent with current federal PSD regulations and policy. On 

February 17, 2015, EPA informed AQP that it is unable to approve an additional portion 

of the proposed 2013 SIP revision, affecting 20.11.61.11(C) NMAC. This provision also 

is not consistent with current federal PSD regulations and policy. 

A) EPA notes that the currently effective version of20.11.61.7(CCC) 

NMAC includes language deferring the date at which certain pollutant sources are 

subject to PSD regulation of greenhouse gasses. This deferral is applied to sources 

that emit carbon dioxide resulting from the combustion or decomposition of 

certain organic material, which EPA refers to as "biogas." EPA notes that a 

federal court has vacated the biogas deferral regulation promulgated by EPA on 

July 20, 2011 (referenced in the list of Federal Register publications). The court 

decision was Center for Biological Diversity v. Environmental Protection Agency, 

722 F.3d 401 (D.C. Cir. 2013). Because of this vacation of the rule, 

20.11.61.7(CCC) NMAC is no longer consistent with federal regulations. 

Therefore, EPA has requested that this regulation be amended to remove language 

relating to a biogas deferral. The Air Quality Program's proposed draft of a 

revised 20.11.61 NMAC will carry out this amendment as requested by EPA. 

3 
B) EPA states that the currently effective versions of20.11.6l.ll(B) 

and 20.11.61 11 (C) NMAC are inconsistent with federal regulations found in 40 

CFR 51.166, regarding applicability of PSD regulations to a permitted source. 

EPA notes that the versions of20.11.61.11(B) and (C) in effect prior to the Air 

Board's amendment on AprillO, 2013 were consistent with the federal regulation. 

Therefore, EPA has requested that these two NMAC sections be revised 

accordingly, reverting to the prior versions. The Air Quality Program's proposed 

draft of a revised 20.11.61 will carry out this amendment as requested by EPA. 

6. The amendments EPA has requested must be made in order for EPA to 

approve two other pending SIP revisions. One is an infrastructure SIP for the 2010 

National Ambient Air Quality Standards (NAAQS) for nitrogen dioxide (N02), approved 

by the Air Board on June 12,2013 and submitted to EPA on July 26,2013. This 

submission is now under review by EPA. The second pending SIP revision is an 

infrastructure SIP for the 2010 NAAQS for sulfur dioxide. AQP is petitioning the Board 

separately for adoption of this proposed SIP submittal and, upon Board approval, 

anticipates submitting it to EPA for review in July of2015. 

7. In light of the foregoing, AQP now petitions the Air Board for a hearing to 

amend 20.11.61 NMAC to conform to federal regulation and policy. The amendments are 

incorporated into the proposed Public Review Draft, included with this petition. 

8. It is anticipated that the hearing on these amendments will take 

approximately one hour or less. 

4 
9. The proposed Public Review Draft of20.11.61 NMAC, Prevention of 

Significant Deterioration is attached as AQP Exhibit # 1. 

Respectfully submitted, 

DannyNev 

Deputy Direc or 

Environmental Health Department 

City of Albuquerque 

One Civic Plaza NW, Suite 3023 

Albuquerque NM 87103 

(505) 768-2706 

CERTIFICATION 

I hereby certify that the original and 15 copies of this petition, entitled Petition to 

Amend 20.11.61 NMAC, Prevention of Significant Deterioration, and submit the 

adopted 20.11.61 NMAC to the U.S. Environmental Protection Agency for proposed 

incorporation into the New Mexico State Implementation Plan (SIP) were delivered 

to the following person on February 20, 2015: 

Andrew Daffern 

Air Quality Control Board Liaison 

Environmental Health Department 

One Civic Plaza, NW, Suite 3023 

Albuquerque, New Mexico 87102 

and that a copy was provided by email to: 

Felicia Orth, Attorney to the Air Quality Control Board. 

DannyNev z 

Deputy Direct 

Environmental Health Department 

City of Albuquerque 

5 
From: Citv of Albygyeraue-Ajr Oualjtv program 

To: Daffern Andrew 

Subject: Public Review Draft, 20.11.61 NMAC, Prevention of Significant Deterioration 

Date: Friday, February 20, 2015 4:51:33 PM 

Click here to view a copy of this petition. 

Click here to view a copy of the Public Review 

D.r.aft, 

This petition was filed on February 20, 2015 and 

the request for a hearing will be an item on the 

Air Quality Control Board Draft Agenda for the 

meeting scheduled for Wednesday, 'March 11, 

2015, at 5:30p.m., in the Vincent E. Griego 

Chambers, Basement Level, City Hall. 

Please send comments on the Public Review Draft 

by April 1, 2015 to: 

Ed Merta 

Air Quality Regulation Development Coordinator 

1 Civic Plaza NW 

Room 3023, 3rd floor 

Albuquerque NM 8702 

(505) 768-2660 

emerta@cabq.gov 
Forward email 

• 

This email was sent to adaffern@cabq.gov by emerta@cabg.goy 

Update profj!e/Emajl Address Rapid removal with SafeUnsubscrjberM prjyacy poljcy. 

City of Albuquerque , One Civic Plaza NW ' Albuquerque , NM 87102 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION6 

Mr. Isreal Tavarez 

Environmental Health Manager 

1445ROSSAVENUE, SUITE 1200 

DAUAS TX 75202-2733 

~tB 1 2 2015 

City of Albuquerque - Environmental Health Department 

Air Quality Prognun - Permitting Division 

P.O. Box 1293 

Albuquerque, New Mexico 87103 

RE: EPA Comments on Pending July 26, 2013 SIP Submittal- Revisions to Prevention of 

Significant Deterioration Regulation (Part 61) 

Dear Mr. Tavarez: 

At your request, we are providing this comment letter to outline the changes that should be made 

to the Prevention of Significant Deterioration (PSD) regulation found in Tide 20, Chapter 11, 

Part 61 of the New Mexico Administrative Code {Part 61) as submitted in the July 26, 2013, 

State Implementation Plan (SIP) revision. As part of our review, we identified two portions of 

Part 61 that are not consistent with current federal PSD regulations and policy. These provisions 

are identified below, along with the basis of our determination that further revisions are 

necessary. 

• Applicability Provisions at 20.11 .61.11 CB) NMAC -The proposed revisions to 

Subsection B of Section 11 do not include a citation to the Public Notice requirements 

found at Subsection A of Section 21, which is not consistent with the federal applicability 

provisions found in 40 CFR Sl.l66(a)(7)(ii). We request that Subsection B be revised to 

include this citation. Please note that the current SIP-approved language at 

20.11.61.ll(B) NMAC is consistent with the federal PSD regulations. 

• Definition of"Subject to Regulation" at 20.11.61.7{CCC) NMAC- The proposed 

revisions to Subsection CCC of Section 7 include the addition of the biogas deferral to 

the definition of"Subject to Regulation." The inclusion of this deferral is not consistent 

with the current federal PSD regulations. On July 12, 2013, the U.S. Court of Appeals 

for the D.C. Circuit issued its decision to vacate the Biomass Deferral Rule. 

Furthermore, even without the 2013 vacation of the rule, the temporary deferral period 

would have expired on July 21,2014. We request that the definition of"Subject to 

Regulation" be revised to remove the biogas deferral language found at 

20.11.61. 7(CCC)(2)(a) NMAC. 

Internet Address (URLl • http://www.epa.govlregion6 

Recycledmec:yclabhl • Printed wllh Vegetable Oil Based Inks on 100% Postconsumer. Process Chlorine Free Recycled Paoer 
We look forward to continuing to work with the City of Albuquerque as we complete our review 

of the July 26, 2013 submittal and take action on the proposed SIP revisions. If you have any 

questions regarding our comments or request, please feel free to contact me at (214) 665-6435 or 

Ashley Mohr of my staff, at (214) 665-7289. 

Sincerely, 

v~~ JetTRobinson 

Chief 

Air Permits Section 
RE: Draft of Public Review for Revised City of Albuquerque Preventi... https://webproxy.cabq.gov/owal?ae=ltem&t=IPM.Note&id=RgAA ... 

1 of2 

RE: Draft of Public Review for Revised City of Albuquerque Prevention of 

Significant Deterioration Regulation, Part 61 

Mohr, Ashley [Mohr.Ashley@epa.gov] 

Sent:Tuesday, February 17, 2015 10:09 AM 

To: Tavarez, Isreal l. 

Cc: Nieto, Margaret E.; Merta, Ed L.; Robinson, Jeffrey [Robinson.Jeffrey@epa.gov] 

Isreal, 

Thank you for providing the draft. The revisions are consistent with the requested revisions outlined in our 

February 12, 2015, letter and the federal PSD regulations. 

Upon closer examination of the draft, I noticed that Subsection C under Section 11 of Part 61 should also be 

revised to be consistent with the federal rules and the proposed revisions to Subsection B included in the draft. 

Similar to the concerns we noted about Subsection B, Subsection C also does not include a reference to the 

Public Notice requirements found at Subsection A of Section 21. The current SIP-approved language at 

20.11.61.11(() NMAC (shown below) is consistent with the federal PSD regulations. 

C. No new major stationary source or major modification to which the requirements of Subsections A, B, 

C and D of 20.11.61.12 NMAC, Sections 20.11.61.13 NMAC through 20.11.61.18 NMAC, 20.11.61.21 

NMAC and 20.11.61.24 NMAC apply shall begin actual construction without a permit that states that the 

major stationary source or major modification will meet those requirements. 

Sorry for any confusion regarding these requested revisions. Please let me know if you request a more formal 

request regarding the requested changes to Subsection C to be consistent with current federal PSD regulations or 

if you have any questions. Otherwise, I look forward to seeing a revised draft including the updates to 

Subsection C. 

THE POSITIONS or VIEWS CONTAINED IN THIS EMAIL DO NOT REPRESENT OFFICIAL EPA POLICY. 

From: Tavarez, Isreal L [mailto:ITavarez@cabq.gov) 

Sent: Monday, February 16, 2015 11:59 AM 

To: Mohr, Ashley 

Cc: Nieto, Margaret E.; Merta, Ed L 

Subject: Draft of Public Review for Revised City of Albuquerque Prevention of Significant Deterioration 

Regulation, Part 61 

Ashley, 

Please find attached for your review. I believe I have captured the changes being requested. Thank you. 

Take care, 

Isreal 

3/3/2015 10:42 AM 
Parallel Processing Request Letter Examples & 40 CFR Part 51 Appe ... https://webproxy.cabq.gov/owal?ae=ltem&t=IPM.Note&id=RgAA ... 

1 of 1 

Parallel Processing Request Letter Examples & 40 CFR Part 51 Appendix V 

Language 

Mohr, Ashley [Mohr.Ashley@epa.gov] 

Sent: Friday, February 13, 2015 1:37 PM 

To: Nieto, Margaret E.; Tavarez, Isreal L.; Merta, Ed L. 

Cc: Wiley, Adina (Wiley.Adina@epa.gov); Robinson, Jeffrey [Robinson.Jeffrey@epa.gov]; Olszewski, Joshua 

[ olszewski.joshua@epa.gov] 

Attachments:Letter_AR GHG SIP PACKAGE_ "'l.pdf {160 KB}; letter_LA CAIR NOx SIP 07 _"' l.pdf (44 KB); TX GHG AP Rescission 

lett"' l.pdf (1 MB) 

AllThanks again for getting together today to discuss the option to parallel process the upcoming Part 61 revisions. 

As promised, I have attached 3 examples of parallel processing request letters from Region 6 states. Please note 

that a bulk of the language in these letters is case-specific to the specific SIP revisions being made, but they do 

provide examples of requests we have received in the past. Please also note that the louisiana and Arkansas 

examples reference previous rule adoption in their request letters. This is because these states are unique in 

that they have a two-step process where they adopt the revisions to their rules as a first step and the second 

step is actually to public notice their request to submit the adopted rules as a SIP revision. Their requests to EPA 

were to parallel process the second step of their SIP revision process. This differs from the rulemaking process 

for City of Albuquerque where the notice for rule revision and SIP submittal is combined in one step. The Texas 

rulemaking process is also a one step process so their letter references future adoption of revisions. 

I also am providing a link to Appendix V of 40 CFR Part 51, which includes the parallel processing request 

requirements under Section 2.3 that Adina discussed during our call. 

http://www.ecfr.gov/cgi-bin/text-idx?SID=f28dd8616396d26blb608aff5eec0c36&node=ap40.2.51 11103.v& 

rgn=div9 

Please do not hesitate to contact me if you have any additional questions. 

Thanks, 

Ashley N.Q. Mohr 

Environmental Scientist 

Air Permits Section (6PD-R) 

U.S. Environmental Protection Agency 

1445 Ross Avenue 

Dallas, TX 75202 

(214) 665-7289 

FAX (214) 665-6762 

mohr.ashley@epa.gov 

THE POSITIONS or VIEWS CONTAINED IN THIS EMAil DO NOT REPRESENT OFFICIAl EPA POLICY. 

417/2015 1:36PM 
CITY OF ALBUQ!)ERQ!)E 

PO Box 1293 

Albuquerque 

March 3, 2015 

Ryan Flynn 

Cabinet Secretary, NM Environment Department 

Office of the Secretary 

Harold Runnels Building 

1190 Saint Francis Dr., PO Box 5469 

Santa Fe, NM 87502-5469 

Subject: Endorsement of request to EPA for parallel processing of proposed revision 

to the New Mexico State Implementation Plan for Air Quality (SIP) through 

the incorporation of an amended 20.11.61 NMAC, Prevention of Significant 

Deterioration 

Dear Mr. Flynn: 

I am writing to request your endorsement, on the Governor's behalf, of the attached draft 

transmittal letter to EPA, which requests that EPA approve a revision to the SIP through 

the conduct of "parallel processing." Parallel processing, 40 CFR 51, Appendix V, allows 

EPA to review a proposed SIP revision while the revision is still going through the state or 

local rulemaking process. EPA uses this procedure for revisions that are anticipated to be 

uncontroversial with no adverse comment, and a request for this procedure must come 

from the Governor or the Governor's designee. 

The proposed revision of the SIP, attached, would amend 20.11.61 NMAC, Prevention of 

New Mexico 87103 Significant Deterioration. EPA has requested this small amendment in correspondence 

with the Air Quality Program, City of Albuquerque Environmental Health Department 

(EHD). The amendments 1) will facilitate EPA's ongoing review of additional 

amendments to 20.11.61 NMAC, submitted to EPA on July 26, 2013 in response to EPA 

www.cabq.gov rulemaking, and 2) must be made in order for EPA to approve two other pending SIP 

revisions. EPA has indicated that conducting the parallel processing will enable them to 

approve this rule in a manner that will coincide with approval of the two other pending SIP 

revisions. 

The proposed changes to 20.11.61 NMAC are as follows: 

• 20.11.61. 7(CCC) NMAC -- amended to remove biogas deferral, in accordance 

with Center for Biological Diversity v. EPA, 722 F.3d 401 (D.C. Cir. 2013). 

• 20.11.6l.ll(B) and (C) NMAC- amended to revert to language in place prior to 

2013 amendments sent to EPA for approval July 26, 2013. The 2013 amended 

language is inconsistent with federal regulations on permit applicability, 40 CFR 

166(a)(7)(ii), because the amended language does not include a citation to public 

notice requirements at 20.11.61 (A) NMAC. 

Albuquerque - Making History 1706-2006 
Once EPA receives the (attached draft) transmittal letter from the Governor's office, they 

can begin parallel processing of the proposed amendment. At the same time, the Air 

Quality Program will pursue the local rule-making process through the Albuquerque -

Bernalillo County Air Quality Control Board (Air Board). Time is a factor at this point, 

since the Air Board's rulemaking process has begun. On February 20, 2015, the Air 

Quality Program petitioned the Board for a hearing on the proposed amendment. If the 

Board approves the request for a hearing, it is anticipated that the hearing will take place in 

late April, 2015. Following Air Board adoption of the amended regulation, EHD will seek 

your endorsement of a letter completing the remaining SIP submission requirements with 

required supporting documentation, as usual. Once your part of the SIP submittal process 

is complete, EHD will provide EPA with review copies of the proposed SIP. 

Thank you for your assistance and patience in this matter. If you have questions or need 

clarification, please contact me or Margaret Nieto of my staff at (505) 768-2637. 

Sincelely, ~ 

~b Albuquerque Environmental Health Department 

cc: Honorable Susana Martinez, Governor, State of New Mexico 

Richard Goodyear, Chief, Air Quality Bureau, NMED 

Michael Vonderheide, Director, Environmental Protection Division, NMED 

Bill Grantham, Assistant General Counsel, NMED 

Kelsey Curran, Chair, Albuquerque- Bernalillo County Air Quality Control Board 

Danny Nevarez, Deputy Director, Albuquerque EHD 

Margaret Nieto, Control Strategies Manager, Air Quality Program, EHD 
SUSANA MARTINEZ 

Governor 

JOHN A. SANCHEZ 

Lieutenant Governor 

March 4, 2015 

Mr. Ron Curry 

Regional Administrator 

NEW MEXICO 

ENVIRONMENT DEPARTMENT 

Harold Runnels Building 

1190 Saint Francis Drive (87505) 

PO Box 5469, Santa Fe, NM 87502-5469 

Phone (505) 827-2990 Fax (505) 827-1628 

www .nmenv.state.nm. us 

U.S. Environmental Protection Agency, Region 6 

1445 Ross Ave, Suite 1200 

Dallas, TX 75202-2733 

RYAN FLYNN 

Cabinet Secretary 

BUTCH TONGATE 

Deputy Secretary 

Subject: Request for parallel processing of proposed revision to the New Mexico State 

Implementation Plan for Air Quality (SIP) through the incorporation of an 

amended 20.11.61 NMAC, Prevention of Significant Deterioration 

Dear Mr. Curry: 

I am writing on behalf of Governor Susana Martinez to request that EPA conduct parallel 

processing and approval of the attached documentation which is the basis for a proposed revision 

to the New Mexico SIP. Specifically, I am submitting documentation for the amended regulation, 

20.11.61 NMAC, Prevention of Significant Deterioration (PSD), including a copy ofthe Public 

Review Draft of the regulation. The proposed rule will apply exclusively to Bernalillo County, 

New Mexico. 

The amended regulation would respond to EPA's request for a revision to the New Mexico SIP. 

On February 12, 2015, EPA informed the Air Quality Program, City of Albuquerque, 

Environmental Health Department (Air Quality Program), that EPA is unable to approve two 

particular portions of a proposed SIP revision submitted to EPA on July 26, 2013. These portions 

are found in the currently effective (locally) version of 20.11.61 NMAC, in particular 

20.11.61.7(CCC) NMAC and 20.11.61.11(B) NMAC. EPA stated that these provisions are not 

consistent with current federal PSD regulations and policy. On February 17, 2015, EPA informed 

the Air Quality Program that EPA is unable to approve an additional portion ofthe proposed 

2013 SIP revision, affecting 20.11.61.11 (C) NMAC. This provision also is not consistent with 

current federal PSD regulations and policy. 

In particular, EPA states that the currently effective versions of20.11.61.1l(B) and 20.11.61 

11 (C) NMAC are inconsistent with federal regulations found in 40 CFR 51.166, regarding 

applicability of PSD regulations to a permitted source. EPA notes that the versions of 

20.11.61.11(B) and (C) in effect prior to the Air Board's amendment on April10, 2013 were 

consistent with the federal regulation. Therefore, EPA has requested that these two NMAC 
sections be revised accordingly, reverting to the prior versions. The Air Quality Program's 

proposed draft of a revised 20.11.61 will carry out this amendment as requested by EPA. 

EPA has noted as well that the currently effective version of20.11.61.7(CCC) NMAC includes 

language deferring the date at which certain pollutant sources are subject to PSD regulation of 

greenhouse gasses. This deferral is applied to sources that emit carbon dioxide resulting from the 

combustion or decomposition of certain organic material, which EPA refers to as "biogas." EPA 

notes that a federal court has vacated the biogas deferral regulation promulgated by EPA on July 

20, 2011 (referenced in the list of Federal Register publications). The court decision was Center 

for Biological Diversity v. Environmental Protection Agency, 722 F.3d 401 (D.C. Cir. 2013). 

Because of this vacation of the rule, 20.11.61.7(CCC) NMAC is no longer consistent with 

federal regulations. Therefore, EPA has requested that this regulation be amended to remove 

language relating to a biogas deferral. The Air Quality Program's proposed draft of a revised 

20.11.61 NMAC will carry out this amendment as requested by EPA. 

The amendments EPA has requested must be made in order for EPA to approve two other 

pending SIP revisions. One is an infrastructure SIP for the 2010 National Ambient Air Quality 

Standards (NAAQS) for nitrogen dioxide (N02), approved by the Air Board on June 12, 2013 

and submitted to EPA on July 26, 2013. This submission is now under review by EPA. The 

second pending SIP revision is an infrastructure SIP for the 2010 NAAQS for sulfur dioxide. The 

Air Quality Program has petitioned the Albuquerque Bernalillo County Air Quality Control 

Board (Air Board) for adoption of this proposed SIP submittal and, upon Board approval, 

anticipates submitting it to EPA for review in July of2015. 

The proposed schedule for adoption of the amended 20.11.61 NMAC is as follows. The City of 

Albuquerque, Environmental Health Department, Air Quality Program, has petitioned the Air 

Board for a public hearing on the proposed amendment to 20.11.61 NMAC. This petition was 

accompanied by a Public Review draft of the proposed amended regulation. The Air Board will 

consider the petition at a meeting scheduled for March 11, 2015 and decide whether or not to 

hold a hearing. The subsequent hearing on the amendment is currently expected to take place in 

late April, 2015 and no later than April30. Following the hearing the Air Board on the same day 

as the hearing is expected to decide whether to adopt the amended regulation for submission to 

EPA and incorporation into the New Mexico SIP. Following adoption by the Air Board, 

submittal ofthe amended regulation to EPA is expected by May 31,2015, with required SIP 

documentation, in accordance with all applicable requirements of 40 CFR 51. 

Under state and local law, the Air Board and the Air Quality Program have the necessary legal 

authority to adopt and implement the amended 20.11.61 NMAC. Legislative authority for 

Albuquerque-Bernalillo County's air quality program is codified in the New Mexico Air Quality 

Control Act (Air Act), Chapter 74, Environmental Improvement, Article 2, Air Pollution, of the 

New Mexico Statutes Annotated 1978 (NMSA 1978). Section 4 of this statute authorizes the 

creation of a "local authority" by a New Mexico county or municipality meeting certain criteria 

if the county or municipality adopts an ordinance providing for the local administration and 

enforcement of the Air Act. Albuquerque and Bernalillo County meet these statutory criteria in 

the Air Act. The City of Albuquerque and Bernalillo County each adopted parallel ordinances by 

which they accepted the authority delegated by the Air Act, established the Air Board and 
specified that the Air Board shall adopt regulations consistent with the Air Act and shall adopt a 

plan for the regulation, control, prevention or abatement of air pollution throughout Bernalillo 

County. These parallel ordinances provide that the Albuquerque Environmental Health 

Department is the administrative agency of the Air Board. The Air Quality Program is part of the 

Environmental Health Department. The Albuquerque and Bernalillo County ordinances are 

codified at Revised Ordinances ofthe City of Albuquerque (ROA) §§ 9-5-1 to -99 and Bernalillo 

County Ordinance 94-5 §§ 1 to -20 [codified at Art. II, Ch. 30, §§ 30-31 to 47.] 

I certify that all documents submitted to the Regional Office in electronic form are exact 

duplicates of the hard copy documents. 

Your favorable consideration of the foregoing request for parallel processing is appreciated. If 

you have any questions, please contact Mary Lou Leonard, Director of the Albuquerque 

Environmental Health Department (EHD), at (505) 768-2631. 

tary 

New Mexico Environment Department 

cc: Honorable Susana Martinez, Governor, State of New Mexico 

Richard Goodyear, Chief, Air Quality Bureau, NMED 

Michael Vonderheide, Director, Environmental Protection Division, NMED 

Kelsey Curran, Chair, Albuquerque - Bernalillo County Air Quality Control Board 

Danny Nevarez, Deputy Director, Albuquerque EHD 

Margaret Nieto, Control Strategies Manager, Air Quality Program, EHD 
ALBUQUERQUE-BERNALILLO COUNTY 

AIR QUALITY CONTROL BOARD 

Vincent E. Griego Chambers 

Albuquerque-Bernalillo County Government Center 

One Civic Plaza NW, Albuquerque, NM 87102 

DRAFT MINUTES- March 11, 2015 

Regular Meeting 

AOCB MEMBERS PRESENT 

Kelsey Curran, CIH (CITY), Chair 

Jens Deichmann, Ph.D. (COUNTY) 

Robert Goldstein, M.D. (COUNTY) 

Augustine Grace Ill, P .E. (CITY) 

Ms. Deborah L. Stover (COUNTY) 

Lenton Malry, Ph.D. (BCPC LIAISON) 

Ms. Mary Lou Leonard, Director 

Mr. Danny Nevarez, Deputy Director, EHD 

Ms. Margaret Nieto, EH Manager and 

AQCB Secretary 

Ms. Felicia Orth, Air Board Attorney and 

Hearing Officer 

Ms. Carol Parker, Assistant City Attorney 

Mr. Damon Reyes, EH Manager 

AOCB MEMBERS ABSENT Mr. Cale Swanson, EH Supervisor 

Ms. Jane Cudney-Black (CITY), Vice Chair 

Dona Upson, M.D. (CITY) 

Mr. Isreal Tavarez, EH Manager 

VISITORS PRESENT 

EHD STAFF PRESENT Jim Peck, COA, Environmental Planning 

Mr. Andrew Daffern, AQCB Liaison Commission 

Mr. Fabian Macias, Air Quality Official 

Mr. Ed Merta, Air Quality Regulation 

Development Coordinator 

Mikaela Renz-Whitmore, COA, Planning 

Department 

DRAFT MEETING MINUTES 

CALL TO ORDER 

Item #1 

Item #2 

The meeting was called to order by Chair Kelsey Curran at 5:34p.m. on March 

11,2015 with five voting Board members present: Jens Deichmann, Augustine 

Grace, Kelsey Curran, Deborah Stover, and Robert Goldstein; and one non-voting 

member present: Lenton Malry. Not present were voting members Jane CudneyBlack and Dona Upson. 

Approval of Agenda (Chair) 

A motion to approve the agenda was made by Member Deichmann and seconded 

by Member Grace. The motion was approved unanimously by a vote of 5-0. 

Approval of February 11,2015 Meeting Minutes (Chair) 

A motion to approve the February 11,2015 meeting minutes was made by 

Member Deichmann and seconded by Member Stover. The motion was approved 

unanimously by a vote of 5-0. 

Page 1 
PUBLIC COMMENT 

There was no public comment. 

ACTION ITEMS 

Item #3 

Item #4 

Request for a Hearing in the Matter of the Petition to adopt a State 

Implementation Plan (SIP) for S02 to address Sections 110(a)(1) and (2) of 

the Federal Clean Air Act (CAA), 42 U.S.C. § 7410(a)(1) and (2) hereafter 

referred to as the "S02 Infrastructure SIP" (AQCB Petition No. 2015-1) -· 

Ed Merta, M.A., J.D., Esq., Air Quality Regulation Development 

Coordinator 

The Request for a Hearing was presented by Ed Merta, AQ Regulation 

Development Coordinator. Member Deichmann moved to grant the hearing 

request. The motion was seconded by Member Stover and unanimously approved 

by vote of 5-0. 

Request for a Hearing in the Matter of the Petition to Amend 20.11.61 

NMAC, Prevention of Significant Deterioration, and Submit the Adopted 

20.11.61 NMAC to the U.S. Environmental Protection Agency for Proposed 

Incorporation into the New Mexico State Implementation Plan for Air 

Quality (SIP) (AQCB Petition No. 2015-2) -- Ed Merta, M.A., J.D., Esq., Air 

Quality Regulation Development Coordinator 

The Request for a Hearing was presented by Ed Merta, AQ Regulation 

Development Coordinator. Member Grace moved to grant the hearing request. 

The motion was seconded by Member Deichmann and unanimously approved by 

vote ofS-0. 

REPORTS Air Program Report. Staff available for questions. 

OTHER BUSINESS 

Item #5 Presentation: ABC to Z (Comprehensive Plan I Unified Development 

Ordinance)-- Mikaela Renz-Whitmore, Planner, COA Planning Department 

and Russell Brito, Planning Manager, COA Planning Department 

ABC to Z (Comprehensive Plan I Unified Development Ordinance) was presented 

by Mikaela Renz-Whitmore, Planner, COA Planning Department. Ms. RenzWhitmore answered questions from the Board in a lively discussion about the 

process. Danny Nevarez added that the Air Quality Program is working with the 

Planning Department on outreach to the Air Quality stakeholder community. 

• Chair Curran brought to the Board's attention a planned bike-sharing program for 

downtown Albuquerque that is scheduled to start May 15,2015, as reported in the 

Albuquerque Journal. After discussion, various Board members expressed an 

interest in learning more details about the new program and if appropriate, 

sending a letter of encouragement and support for the program. Chair Curran 

Page2 
suggested that the item be included on the next meeting agenda for a possible 

presentation as well as taking action on sending a letter of support if that is the 

Board's inclination. 

• Chair Curran noted that the date of the next Board meeting in April has been 

changed from April 8 to April 30 at 5:30. 

• Member Deichmann reminded the Board that Board elections will be held at the 

April Board meeting. 

ADJOURNMENT 

Chair Kelsey Curran adjourned the meeting at 6:58p.m. 

NEXT SCHEDULED BOARD MEETING AND HEARING: April30, 2015- moved from 

April 8, 2015. 

SUBMITTED: 

Ms. Margaret Nieto date 

Board Secrctary/Env. Health Manager, Control Strategies Section, 

Air Quality Program, Environmental Health Department. 

Page3 

READ AND APPROVED: 

Kelsey Curran, ClH date 

Chair 

Albuquerque- Bernalillo County Air Quality Control Board 
Albuquerque Journal Legal Notices 

SUBSCRIBE EJOURNAL SUBSCRIBER SERVICES CROSSWORD PUZZLES COMICS 

ALBUQ!l~9UE 

JOUKNAL LEGALS Apps IJ ~ ~~ 

Search le~als ... 

HOME NEWS SPORTS BUSINESS VENUE OBITUARIES OPINION POLITICS LIVING CLASSIFIEDS JOBS AUTOS 

Walrnart Logistics Is Hiring Management Talentl 

Area Manager, Floor (Grocery) 

Los Lunas, NM 

SEARCH RESULTS 

Walnwt Dlalrlbutlon Center HOM 

To apply or for more Information about c.eer 

opportunltlet with Walnwt, pleeae click here. 

Walmart 

•. • ' ' , " o ~" l , It_., 

NOTICE OF HEARING AND DATE CHANGE FOR REGULAR MEETING ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY CONTROL BOARD The 

Albuquerque-Bernalillo County Air Quality Control Board (Air Board) will hold a public hearing on April 30, 2015 at 5:30 p.m. in the Vincent E. Griego Chambers 

located in the basement level of the Albuquerque-Bernalillo County Government Center, One Civic Plaza NW, Albuquerque, NM. The purpose of the hearing is to 

consider the matter of AQCB Petition No. 2015-2, to amend 20.11.61 NMAC. Prevention of Significant Deterioration, and submit the adopted 20.11.61 NMAC to the 

U.S. Environmental Protection Agency for proposed incorporation into the New Mexico State Implementation Plan (SIP). The regularly scheduled meeting date on 

AprilS, 2015 has been changed to April30, 2015. The proponent of this regulatory action is the City of Albuquerque, Environmental Health Department, Air Quality 

Program. The hearing will consider whether to adopt the proposed amended version of 20.11.61 NMAC, in order to bring the regulation into compliance with 

standards in the Code of Federal Regulations. An information sheet with further details on the subject matter of the hearing is available at: 

http://www.cabq.gov/airquality/air-quality-control-board/documents/ Part%2061 %20Public%20Review"A.20Drafat.pdf. Following the hearing, the Air Board at its 

regular monthly meeting is expected to consider adopting the proposed amendments to 20.11.61 NMAC. The Public Review Draft of the amended 20.11.61 NMAC 

may be reviewed during regular business hours at the Environmental HeaHh Department, One Civic Plaza, NW, Suite 3023, Albuquerque, NM 87102. Copies of the 

Public Review Draft may be obtained by contacting Andrew Daffern, Air Quality Control Board Liaison, at (505) 768-2601 or adaffem@cabq.gov. The Public Review 

Draft can also be found on the Air Quality Program web site at: http://www.cabq.gov/airquality/air-quality-control-board/documents/ 

Part%2061%20Public%20Review%20Draft.pdf. The hearing will be conducted in accordance with NMSA 74-2-6; Joint Air Quality Control Board Ordinance, Section 

9-5-1-6, Adoption of Regulations, Notice and Hearing [ROA 1994]; Bernalillo County Ordinance, Section 30-35, Adoption of Regulations, Notice and Hearings [Ord. 

No. 94-5, Section 6, 2-2-94]; and 20.11.82 NMAC, Rulemaking Procedures-Air Quality Control Board; and other applicable procedures. All interested persons will be 

given a reasonable opportunity at the hearing to submit relevant evidence, data, views and arguments, orally or in writing, to introduce exhibits, and to examine 

witnesses. Persons wishing to present technical testimony must file with the Air Board a written notice of intent (NOI) to do so by 5:00p.m. on April14, 2015. The 

NOI shall: (1) identify the person for whom the witness(es) will testify; (2) identify each technical witness that the person intends to present and state the 

qualifications of the witness, including a description of their education and work background; (3) include a copy of the direct testimony of each technical witness and 

state the anticipated duration of the testimony of that witness; (4) include the text of any recommended modifications to the proposed regulatory change; (5) list and 

attach an original and 15 copies of all exhibits anticipated to be offered by that person at the hearing, including any proposed statement of reasons for adoption of 

rules; and (6) be served on the petitioner, if the document is an NOI filed by any person other than the petitioner. The NOI must be filed in hard copy form (original 

plus 15 copies of all documents) by 5:00p.m. on April14, 2015, with Andrew Daffern, Air Quality Control Board Liaison, Environmental HeaHh Department, One 

Civic Plaza, NW, Suite 3023, Albuquerque, New Mexico 87102. Any member of the general public may present non-technical testimony at the hearing. No prior 

notification is required to present non-technical testimony. Any member of the public may also offer exhibits in connection with non-technical testimony, as long as 

the exhibit is not unduly repetitious of the testimony. A member of the general public who wishes to submit a non-technical written statement for the record in lieu of 

oral testimony shall file the written statement prior to the hearing, or submit it at the hearing. Written statements submitted prior to the hearing may be directed to the 

Air Quality Control Board Liaison, Andrew Daffern, at the above contact information. NOTICE FOR PERSON WITH DISABILITIES OR SPECIAL NEEDS: If you have 

~ 

Daily Legal Notices: 

Sun Mon Tue Wed Thu Fri Sat 

2 3 4 

5 6 71s 9 10 11 

12 13 14 15 16 17 18 

19 20 21 22 23 24 25 

26 27 28 29 30 

Select date 

Latest News: 

4 
Albuquerque Journal Legal Notices 

a disability or require special assistance to participate, including translation/inter-pretation service, or review of any agendas, minutes, or other public meeting 

documents, please contact Andrew Daffern, Air Quality Control Board liaison, by April16, 2015, at (505) 768-2601, or adaffem@cabq.gov.TTY users requiring 

special assistance may call the New Mexico Relay at 1-800-659-8331. Journal: March 15, 2015 

(4.. 4jl • PUB!JSHEQ ON· SUN MARCH 15 2015 

Privacy Policy & Copyright© 1997-2015 Albuquerque Journal: Albuquerque, New Mexicoo 

Contact Us I Call the Journal: 505-823-3800 1 About Us/Media Info 1 Place an ad: 505-823-4444 1 Weatherline: 505-821-1111 

Albuquerque Journal Subscriber Services 

Submit a news lip 1 Place a classified ad 1 Advertise in the Journal I Subscribe to newspaper 
New Mexico Register / Volume XXVI, Number 5 / March 16, 2015 191

Notices of Rulemaking and Proposed Rules

ALBUQUERQUE-BERNALILLO 

COUNTY AIR QUALITY CONTROL 

BOARD

NOTICE OF HEARING AND DATE 

CHANGE FOR REGULAR MEETING

The Albuquerque-Bernalillo County Air 

Quality Control Board (Air Board) will 

hold a public hearing on April 30, 2015 

at 5:30 p.m. in the Vincent E. Griego 

Chambers located in the basement level 

of the Albuquerque-Bernalillo County 

Government Center, One Civic Plaza 

NW, Albuquerque, NM. The purpose of 

the hearing is to consider the matter of 

AQCB Petition No. 2015-2, to amend 

20.11.61 NMAC, Prevention of Signifi cant 

Deterioration, and submit the adopted 

20.11.61 NMAC to the U.S. Environmental 

Protection Agency for proposed 

incorporation into the New Mexico State 

Implementation Plan (SIP). The regularly 

scheduled meeting date on April 8, 2015 has 

been changed to April 30, 2015. 

The proponent of this regulatory action is 

the City of Albuquerque, Environmental 

Health Department, Air Quality Program. 

The hearing will consider whether to adopt 

the proposed amended version of 20.11.61 

NMAC, in order to bring the regulation into 

compliance with standards in the Code of 

Federal Regulations. An information sheet 

with further details on the subject matter of 

the hearing is available at http://www.cabq.

gov/airquality/air-quality-control-board/

documents/3.%20Information%20sheet%20

-%20Part%2061.pdf. 

Following the hearing, the Air Board at 

its regular monthly meeting is expected 

to consider adopting the proposed 

amendments to 20.11.61 NMAC. 

The Public Review Draft of the amended 

20.11.61 NMAC may be reviewed during 

regular business hours at the Environmental 

Health Department, One Civic Plaza, NW, 

Suite 3023, Albuquerque, NM 87102. 

Copies of the Public Review Draft may be 

obtained by contacting Andrew Daffern, 

Air Quality Control Board Liaison, at 

(505) 768-2601 or adaffern@cabq.gov. 

The Public Review Draft can also be found 

on the Air Quality Program web site at: 

http://www.cabq.gov/airquality/air-qualitycontrol-board/documents/Part%2061%20

Public%20Review%20Draft.pdf. 

The hearing will be conducted in 

accordance with NMSA § 74-2-6; Joint 

Air Quality Control Board Ordinance, 

Section 9-5-1-6, Adoption of Regulations, 

Notice and Hearing [ROA 1994]; Bernalillo 

County Ordinance, Section 30-35, Adoption 

of Regulations, Notice and Hearings [Ord. 

No. 94-5, Section 6, 2-2-94]; and 20.11.82 

NMAC, Rulemaking Procedures—Air 

Quality Control Board; and other applicable 

procedures.

All interested persons will be given a 

reasonable opportunity at the hearing to 

submit relevant evidence, data, views and 

arguments, orally or in writing, to introduce 

exhibits, and to examine witnesses. Persons 

wishing to present technical testimony must 

fi le with the Air Board a written notice of 

intent (NOI) to do so by 5:00 p.m. on April 

14, 2015. The NOI shall: 

(1) identify the person for whom the 

witness(es) will testify;

(2) identify each technical witness that 

the person intends to present and state the 

qualifi cations of the witness, including a 

description of their education and work 

background;

(3) include a copy of the direct testimony 

of each technical witness and state the 

anticipated duration of the testimony of that 

witness; 

(4) include the text of any recommended 

modifi cations to the proposed regulatory 

change; 

(5) list and attach an original and 15 copies 

of all exhibits anticipated to be offered by 

that person at the hearing, including any 

proposed statement of reasons for adoption 

of rules; and

(6) be served on the petitioner, if the 

document is an NOI fi led by any person 

other than the petitioner. 

The NOI must be fi led in hard copy form 

(original plus 15 copies of all documents) 

by 5:00 p.m. on April 14, 2015, with 

Andrew Daffern, Air Quality Control Board 

Liaison, Environmental Health Department, 

One Civic Plaza, NW, Suite 3023, 

Albuquerque, New Mexico 87102. 

Any member of the general public may 

present non-technical testimony at the 

hearing. No prior notifi cation is required 

to present non-technical testimony. Any 

member of the public may also offer 

exhibits in connection with non-technical 

testimony, as long as the exhibit is not 

unduly repetitious of the testimony. A 

member of the general public who wishes to 

submit a non-technical written statement for 

the record in lieu of oral testimony shall fi le 

the written statement prior to the hearing, or 

submit it at the hearing. Written statements 

submitted prior to the hearing may be 

directed to the Air Quality Control Board 

Liaison, Andrew Daffern, at the above 

contact information.

NOTICE FOR PERSON WITH 

DISABILITIES OR SPECIAL NEEDS: 

If you have a disability or require special 

assistance to participate, including 

translation/interpretation service, or review 

of any agendas, minutes, or other public 

meeting documents, please contact Andrew 

Daffern, Air Quality Control Board liaison, 

by April 16, 2015, at (505) 768-2601, or 

adaffern@cabq.gov.TTY users requiring 

special assistance may call the New Mexico 

Relay at 1-800-659-8331. 

ALBUQUERQUEBERNALILLO COUNTY 

AIR QUALITY CONTROL 

BOARD

ALBUQUERQUE-BERNALILLO 

COUNTY AIR QUALITY CONTROL 

BOARD

NOTICE OF HEARING AND D ATE 

CHANGE FOR REGULAR MEETING

The Albuquerque-Bernalillo County Air 

Quality Control Board (Air Board) will 

hold a public hearing on April 30, 2015 

at 5:30 p.m. in the Vincent E. Griego 

Chambers located in the basement level 

of the Albuquerque-Bernalillo County 

Government Center, One Civic Plaza 

NW, Albuquerque, NM. The purpose of 

the hearing is to consider the matter of 

AQCB Petition No. 2015-1, to adopt a 

State Implementation Plan (SIP) for Sulfur 

Dioxide (SO2) to address Sections 110(a)

(1) and (2) of the Federal Clean Air Act 

(CAA), 42 U.S.C. Sections 7410(a)(1) 

and (2) hereafter referred to as the “SO2 

Infrastructure SIP”. The regularly scheduled 

meeting date on April 8, 2015 has been 

changed to April 30, 2015. 

The proponent of this regulatory action is 

the City of Albuquerque, Environmental 

Health Department, Air Quality Program. 

The hearing will consider whether to adopt 

the SO2 Infrastructure SIP and submit 

it to the U.S. Environmental Protection 

Agency as a proposed revision to the 

New Mexico State Implementation Plan. 

An Infrastructure SIP is required by the 

U.S. Environmental Protection agency 

to demonstrate compliance with a newly 

issued National Ambient Air Quality 

Standard. An information sheet with 

ALBUQUERQUEBERNALILLO COUNTY 

AIR QUALITY CONTROL 

BOARD

AQP Exhibit 5b
From: Cjtv of Albygyerqye-Ajr Oyalitv proaram 

To: Daffern Andrew 

Subject: Notice of hearing on revision to 20.11.61 NMAC and date change for regular meeting, Albuquerque- Bernalillo 

County Air Quality Control Board 

Date: Monday, March 16, 2015 4:13:13 PM 

The Albuquerque-Bernalillo County Air Quality Control Board 

(Air Board) will hold a public hearing on April 30, 2015 at 5:30 

p.m. in the Vincent E. Griego Chambers located in the basement 

level of the Albuquerque-Bernalillo County Government Center, 

One Civic Plaza NW, Albuquerque, NM. The purpose of the 

hearing is to consider the matter of AQCB Petition No. 2015-2, 

to amend 20.11.61 NMAC, Prevention of Significant 

Deterioration, and submit the adopted 20.11.61 NMAC to the 

U.S. Environmental Protection Agency for proposed 

incorporation into the New Mexico State Implementation Plan 

(SIP). The regularly scheduled meeting date on April 8, 2015 has 

been changed to April 30, 2015. 

The proponent of this regulatory action is the City of 

Albuquerque, Environmental Health Department, Air Quality 

Program. 

The hearing will consider whether to adopt the proposed amended 

version of 20.11.61 NMAC, in order to bring the regulation into 

compliance with standards in the Code of Federal Regulations. 

An information sheet with further details on the subject matter of 

the hearing is available at http:Uwww.cabq.~oy/ajrquality/airqua)jty -controlboard/documents/3. %20Informatjon%20sheet%20-

%20Part%206l.pdf. 

Following the hearing, the Air Board at its regular monthly 

meeting is expected to consider adopting the proposed 

amendments to 20.11.61 NMAC. 
The Public Review Draft of the amended 20.11.61 NMAC may 

be reviewed during regular business hours at the Environmental 

Health Department, One Civic Plaza, NW, Suite 3023, 

Albuquerque, NM 87102. Copies of the Public Review Draft may 

be obtained by contacting Andrew Daffern, Air Quality Control 

Board Liaison, at (505) 768-2601 or adaffern@cabq.gov. The 

Public Review Draft can also be found on the Air Quality 

Program web site at: http:Uwww.cabq.~oy/ajrquaHty/ajr-quaHtycontrolboard/documents/Part%2061 %20Publjc%20Reyjew%20Draft.pdf. 

The hearing will be conducted in accordance with NMSA § 74-2-

6; Joint Air Quality Control Board Ordinance, Section 9-5-1-6, 

Adoption of Regulations, Notice and Hearing [ROA 1994]; 

Bernalillo County Ordinance, Section 30-35, Adoption of 

Regulations, Notice and Hearings [Ord. No. 94-5, Section 6, 2-2-

94]; and 20.11.82 NMAC, Rulemaking Procedures-Air Quality 

Control Board; and other applicable procedures. 

All interested persons will be given a reasonable opportunity at 

the hearing to submit relevant evidence, data, views and 

arguments, orally or in writing, to introduce exhibits, and to 

examine witnesses. Persons wishing to present technical 

testimony must file with the Air Board a written notice of intent 

(NOI) to do so by 5:00p.m. on April 14, 2015. The NOI shall: 

(1) identify the person for whom the witness(es) will testify; 

(2) identify each technical witness that the person intends to 

present and state the qualifications of the witness, including a 

description of their education and work background; 

(3) include a copy of the direct testimony of each technical 

witness and state the anticipated duration of the testimony of that 

witness; 

(4) include the text of any recommended modifications to the 

proposed regulatory change; 

(5) list and attach an original and 15 copies of all exhibits 

anticipated to be offered by that person at the hearing, including 

any proposed statement of reasons for adoption of rules; and 

(6) be served on the petitioner, ifthe document is an NOI filed by 

any person other than the petitioner. 

The NOI must be filed in hard copy form (original plus 15 copies 

of all documents) by 5:00p.m. on April14, 2015, with Andrew 

Daffern, Air Quality Control Board Liaison, Environmental 

Health Department, One Civic Plaza, NW, Suite 3023, 

Albuquerque, New Mexico 87102. 

Any member of the general public may present non-technical 

testimony at the hearing. No prior notification is required to 

present non-technical testimony. Any member of the public may 

also offer exhibits in connection with non-technical testimony, as 
long as the exhibit is not unduly repetitious of the testimony. A 

member of the general public who wishes to submit a nontechnical written statement for the record in lieu of oral testimony 

shall file the written statement prior to the hearing, or submit it at 

the hearing. Written statements submitted prior to the hearing 

may be directed to the Air Quality Control Board Liaison, 

Andrew Daffern, at the above contact information. 

NOTICE FOR PERSON WITH DISABILITIES OR 

SPECIAL NEEDS: If you have a disability or require special 

assistance to participate, including translation/interpretation 

service, or review of any agendas, minutes, or other public 

meeting documents, please contact Andrew Daffern, Air Quality 

Control Board liaison, by April 16, 2015, at (505) 768-2601, or 

adaffern@cabq.gov. TTY users requiring special assistance may 

call the New Mexico Relay at 1-800-659-8331. 

Forward email 

This email was sent to adaffern@cabq.gov by emerta@caba.gay 

Update Profjle/Email Address Rapid removal with SafeUosubscrjberM Privacy Policy. 

City of Albuquerque One Civic Plaza NW · Albuquerque NM 87102 
ALBUQUERQUE-BERNALILLO COUNTY 

AIR QUALITY CONTROL BOARD 

Chair, Kelsey Curran, CIH, City 

Jens Delchmann, PhD, County 

Auaustine Grace, PE, City 

Jllce Chair, Ms. Jane Cudney-Biack, City 

Robert Goldstein, MD, County 

Ms. Deborah L Stover, County 

Dona Upson, MD, City Non-voting members: BCPC Liaison-Lenton Malry, PhD; COAIEPC 

Liaison-James Peck. Margaret Nieto, Secretary to the Board 

··--···---,.-l-::-L-oc-a-=ti,-on_:_ ! 

Vincent E. Griego Chambers 

t--,-----,,...------::-:-----::-:---=-----=----=----=---:--=---=--=-..,.....,.=-=-:-=-=-=---i· Albuquerque-Bernalillo County · General inquiries regarding this agenda may be directed to Andrew Daffern (505) 768- Government Center 

1 Date: April30, 2015 (Wecblesday) 

Time: 5:30 p.m. 

l

! 2601 (adaffern@cabq.gov). One Civic Plaza NW 

For documents related to each agenda item, please go to http://www.cabQ.gov/airguality/air- Albuquerque, NM 87102 

.JlH,~~-~~trol-board/eventslapril-30-20 15-air-quatity-c<?ntrol-bo!rd·.!illl~e!ffi& _ ------~ '<, '., \ "~ 

Regular Monthly Meeting Draft Agenda 

CALL TO ORDER 

Item #1 Approval of Agenda (Chair) 

Item #2 Approval ofMarch 11, 2015 Meetin~ Minutes (Chair) 

PUBLIC COMMENif 

Item#3 

Item #4 

Electlon ofChair and Vice Chair for 2015-2016 (Chair) 

Nominations are as fo~lows: 

• Chair:· _Ms. Kelsey Curran, 

• Vice Chair: Ms. Jane Cudney-Black 

Selection ofBoardmembers to serve as non-voting Advisory Member and 

Alternate·' to Midl=Region Council of Governments (MRCOG) Transportation 

Program Task Group (TPTG) and Transportation Coordinating Committee (TCC) 

(Chair) 

• Advisory Member: 

• Alternate: 

OTHER BUSINESS 

Item#5 BICI, Albuquerque's Downtown Pilot Bike Share presentation by 

Lola Bird, Executive Director, DowntownABQ MainStreet Initiative, and 

Valerie Hermanson, Transportation Planner, Mid-Region Council of 

Governments 
Item lUi Discussion on possible action to send a letter of support for the Bike Sharing 

Program to Mayor Berry and City Council, City of Albuquerque; Bernalillo 

County Commissioners, and Dewey Cave, Exec. Director of the MRCOG 

HEARINGS 

• In the Matter of the Petition to adopt a State Implementation Plan (SIP) for S02 to 

address Sections 110(a)(1) and (2) of the Federal Clean Air Act (CAA), 42 U.S.C. 

§ 7410(a)(1) and (2) hereafter referred to as the "S02 Infrastructure SIP" (AQCB 

Petition No. 2015-1)- Ed Merta, Air Quality Regulation Development 

Coordinator, 

• In the Matter of the Petition to Amend 20. H~'tJt NMAC, Prevention of Significant 

Deterioration, and Submit the Adopted 1o:f"f.~i1i~MAC to the U.S. 

Environmental Protection Agency fo]." Proposed fri~oration into the New 

Mexico State Implementation Pl. Jor Air Quality (811?). (AQCB Petition No. 

2015-2)- Ed Merta, Air Quality Regulation Development Coordinator, 

ACTION ITEMS (cont'd.) 

ltem#7 

Item #8 

Decision on the Matter of the Petition to adopt a State Implementation Plan (SIP) 

for S02 to address Sections 110(~)(1) and (2)ofthe Federal Clean Air Act 

(CAA), 42 U.S.C. § 7410(a.(1)and (2)bereaft~referred to as the "S02 

Infrastructure SIP" (AQCn PetitionNo. 2015-1) .·~ ~ :·· \ 

Decision on the Matter of the Petition to Amend 20.11.61 NMAC, Prevention of 

Significant Deterioration, and Submit the Adopted 20.11.61 NMAC to the U.S. 

Environmental Protection Agency for Proposed Incorporation into the New 

~~xico State ~PlC!!Jlentat!911 Plan for Air Quality (SIP) (AQCB Petition No. 

201.5 2). ·?u:.!k·;··· - 'f,\,,<'1'. 

REPORTS Air Program Report. Staff available for questions. 

ADJOURNMENT 

NEXT SCHEDULED;BOARDtMEETINGIIIEARING: May 13-14,2015 

Members of the public who wish to address the Board, may do so by signing up with the Board Clerk and indicating 

either the agenda item they intend to address, or whether they wish to make a general public comment. Sign up 

must occur prior to the Board's consideration of each item. Each person will be given up to two minutes to speak. 

••Notice to persons with disabilities: If you have a disability and require special assistance to participate in this 

process, please call3/ 1 (Voice) and special assistance will be made available to you to receive any public meeting 

documents, including agendas and minutes. 7TY users may request special assistance by calling 1-800-659-

8331 .•• 
1

ALBUQUERQUE-BERNALILLO COUNTY 

AIR QUALITY CONTROL BOARD 

IN THE MATTER OF THE PETITION TO AMEND 20.11.61 NMAC, 

PREVENTION OF SIGNIFICANT DETERIORATION, AND SUBMIT THE 

ADOPTED 20.11.61 NMAC TO THE U.S. ENVIRONMENTAL PROTECTION 

AGENCY FOR PROPOSED INCORPORATION INTO THE NEW MEXICO 

STATE IMPLEMENTATION PLAN FOR AIR QUALITY (SIP). 

AQCB Petition No. 2015-2 

Air Quality Program, 

Environmental Health Department, 

City of Albuquerque, Petitioner 

DIRECT TESTIMONY OF ED MERTA 

Thank you, Madam Chair and members of the Board. My name is Ed Merta. I am 

the Air Quality Regulation Development Coordinator with the Air Quality Program, 

Control Strategies Division, City of Albuquerque Environmental Health Department. I 

am here to testify in the matter of the Petition to Amend 20.11.61 NMAC, Prevention of 

Deterioration, Air Quality Control Board Petition No. 2015-2. In support of my 

testimony, I now move that the Notice of Intent and its Exhibits, which are listed as AQP 

Exhibits 1 through 10 and include my full written testimony, be adopted while under oath 

and admitted into the record. 

In this petition, the City of Albuquerque, by and through the Air Quality Program 

of the Environmental Health Department (EHD), asks the Albuquerque-Bernalillo 

County Air Quality Control Board (Air Board) to adopt amendments to 20.11.61 NMAC, 

Prevention ff Significant Deterioration. EHD also asks the Air Board to approve 

AQP Exhibit 7
2

submission of the amended 20.11.61 NMAC to the U.S. Environmental Protection 

Agency (EPA) for proposed incorporation into the New Mexico State Implementation 

Plan for Air Quality. 

I am testifying in favor of this proposed rulemaking, for the following reasons. 

LEGAL REQUIREMENTS 

 The proposed amended 20.11.61 NMAC is governed by specific federal legal 

requirements. In particular, the provisions governing state implementation of the 

Prevention of Signification Deterioration (PSD) permit program are contained in the 

CFR Title 40, Protection of Environment, Part 51, Requirements for Preparation, 

Adoption, and Submittal of Implementation Plans, Subpart I, Review of New Sources and 

Modifications, Section 166, Prevention of Significant Deterioration of Air Quality. The 

provisions governing direct federal implementation of PSD are found at Title 40, 

Protection of Environment, Part 52, Approval and Promulgation of Implementation 

Plans, Subpart A, General Provisions, Section 21, Prevention of Significant 

Deterioration of Air Quality. To implement PSD program requirements under federal 

provisions, the Air Board has previously adopted the existing version of 20.11.61 

NMAC, Prevention of Significant Deterioration.

A PSD program sets a maximum amount of new air pollution that can legally be 

emitted in an area that is in attainment with a NAAQS. The goal is to prevent 

deterioration of the air quality from becoming “significant.” Under a PSD program, 

whenever a new major source of a NAAQS pollutant is being constructed in an 
3

attainment area, or an existing major source is undergoing a major modification, that 

source must obtain a PSD permit. That permit requires a demonstration, based on 

monitoring and modeling, that the source will not add more than the legally allowed 

amount of pollution to the air. 

In addition to the above federal provisions, state and local law is also applicable 

to the proposed amended 20.11.61 NMAC, Prevention of Significant Deterioration. The 

New Mexico Air Quality Control Act (Air Act), NMSA 1978, Sections 74-2-4 and 74-2-

5.B(1) [1967 as amended through 2007] authorizes and requires the Air Board to adopt, 

promulgate, publish, amend, and repeal air quality regulations. The Air Act, NMSA 

1978, Section 74-2-5.B(2), also authorizes and requires the Air Board to adopt air quality 

plans. Under the Air Act, NMSA 1978, Section 74-2-6(B), a public hearing of the Board 

must be held before any regulation or emission control requirement can be adopted. 

Similarly, the Board is authorized and required to adopt, promulgate, publish, amend, and 

repeal air quality regulations and adopt plans under: City of Albuquerque Ordinances, 

Section 9-5-1-4(B); Bernalillo County Ordinances, Section 30-33(b). Local ordinances 

also require regulations and plans to be adopted only after a hearing of the Air Board, 

per: City of Albuquerque Ordinances, Section 9-5-1-6; Bernalillo County Ordinances, 

Section 30-35. 

The process of amending the local PSD regulation for submission to EPA as a 

proposed SIP revision is governed by specific procedural requirements in federal law. 

The Clean Air Act, Section 110(I), requires that proposed SIP revisions be adopted after 

reasonable notice and public hearing. Additional specific procedural requirements regarding 

notice and hearing are laid out in the Code of Federal Regulations, 40 CFR § 51.102 and 40 

CFR, Part 51, Appendix V, paragraph 2.1(g). 
4

To demonstrate compliance with federal, state, and local procedural requirements in 

regard to the currently proposed 20.11.61 NMAC rulemaking by the Board, EHD is 

presenting the following: as AQP Exhibit 1, the Public Review Draft of the proposed 

20.11.61 NMAC; as AQP Exhibit 1a, EHD’s petition for this rulemaking; as AQP Exhibit 1b, 

the email notice of the petition; as AQP Exhibit 4, draft minutes of the Board’s March 11, 

2015 meeting, at which it approved EHD’s request for this hearing; as AQP Exhibits 5a, 5b, 

and 5c, legal notices for this hearing; as AQP Exhibit 6, the draft agenda for the Board 

meeting and hearings scheduled for April 30, 2015. The rulemaking for the proposed 

amended 20.11.61 NMAC has been undertaken in accordance with the local regulation 

governing rulemaking proceedings, 20.11.82 NMAC, Rulemaking Procedures -- Air 

Quality Control Board. 

EPA REGULATORY ACTION LEADING TO THIS RULEMAKING 

The proposed amended 20.11.61 is required by several EPA rulemakings in recent 

years, which revised the Code of Federal Regulations as it applies to PSD. Because of 

these revisions, state and local air quality jurisdictions were legally required to amend 

their own PSD regulations to conform to federal requirements. EPA’s new requirements 

were promulgated from 2008 to 2012, when EPA rulemaking resulted in extensive 

changes to PSD provisions relating to control of greenhouse gasses, fugitive emissions, 

and fine particulate matter less than 2.5 microns in diameter, or “PM2.5.” 

The Air Board responded to EPA’s rulemakings on PSD by adopting a series of 

amendments to 20.11.61 NMAC and submitting those amendments to EPA for proposed 

incorporation into the overall New Mexico SIP. The most recent such amendments 
5

consisted of extensive revisions to 20.11.61 NMAC adopted by the Board at a hearing on 

April 10, 2013. These amendments made changes to 20.11.61 NMAC, Sections 2, 5, 6, 7, 

10, 11, 12, 14, 15, 18, 20, 23, 24, 27, 29 and 30. The amended regulation, which is the 

current version, took effect locally May 13, 2013. The Board also approved submission 

of the amended version to EPA for review and proposed approval. On July 26, 2013, 

New Mexico Environment Secretary Ryan Flynn submitted the amended 20.11.61 

NMAC to EPA as a proposed revision to the New Mexico SIP. 

Further details on previous PSD rulemaking by EPA is available in records related 

to the Board’s April 2013 hearing adopting the current 20.11.61 NMAC. These records 

are shown as AQP Exhibits 8a through 8f. 

DESCRIPTION OF THE PROPOSED AMENDMENTS 

AND EPA’S RATIONALE 

Recently, EPA began its review of the proposed SIP revision submitted with 

Board approval in 2013. As part of this review, on February 12, 2015, EPA contacted the 

Environmental Health Department, Air Quality Program, asking for additional 

amendments to two particular portions of the proposed SIP revision submitted in 2013 

(thus requiring two amendments to the currently effective local PSD regulation). These 

portions are found in the currently effective 20.11.61.7(CCC) NMAC and 20.11.61.11(B) 

NMAC. EPA stated that these provisions are not consistent with current federal PSD 

regulations and policy. On February 17, 2015, EPA contacted EHD to ask for an 

additional amendment to a portion of the proposed SIP revision submitted in 2013 (thus 
6

requiring a further amendment to the currently effective local PSD regulation). This 

additional portion is found in the currently effective 20.11.61.11(C) NMAC. This 

provision also, EPA states, is not consistent with current federal PSD regulations and 

policy. EPA’s communications with the Department are shown as AQP Exhibits 2a and 

2b. 

EPA’s basis for the requested revision to the currently effective version of 

20.11.61.7(CCC) NMAC is as follows. That provision includes language deferring the 

date at which certain pollutant sources are subject to PSD regulation of greenhouse 

gasses. This deferral is applied to sources that emit carbon dioxide resulting from the 

combustion of biofuels, or the combustion or decomposition of certain organic material. 

EPA refers to this deferral as the “biogas deferral.” EPA notes that a federal court has 

vacated the biogas deferral regulation promulgated by EPA on July 20, 2011. The court 

decision was Center for Biological Diversity v. Environmental Protection Agency, 722 

F.3d 401 (D.C. Cir. 2013). The text of this court decision and opinion is shown as AQP 

Exhibit 9. Because the court vacated the rule, 20.11.61.7(CCC) NMAC is no longer 

consistent with federal regulations. Therefore, EPA has requested that the federal 

regulation be amended to remove language relating to a biogas deferral and bring the 

regulation up to date. The Air Quality Program’s proposed draft of a revised 20.11.61 

NMAC will carry out this amendment as requested by EPA. 

The basis for the two other amendments requested by EPA is as follows. EPA 

states that the currently effective versions of 20.11.61.11(B) and 20.11.61 11(C) NMAC 

are inconsistent with federal regulations found in 40 CFR § 51.166, regarding 

applicability of PSD regulations to a permitted source. EPA states that this provision in 
7

the CFR requires 20.11.61(B) and (C) NMAC to expressly include a citation to the public 

notice provisions appearing later in the same regulation, at 20.11.61.21(A) NMAC. The 

currently effective local versions of these two provisions do not include such a citation. 

EPA further notes that the versions of 20.11.61.11(B) and (C) NMAC in effect 

prior to the Air Board’s amendments on April 10, 2013 were consistent with the federal 

regulation at 40 CFR § 51.166. Therefore, the Air Quality Program’s proposed draft of a 

revised 20.11.61 NMAC would revert the two provisions to their former versions. At the 

time the Board adopted the current version in April 2013, EHD supported the current 

language as clarifying PSD applicability provisions in the regulation. The current version, 

EHD concluded at the time, contained more specific language describing which particular 

PSD requirements applied or did not apply to a particular source. EHD had no indication 

at that time from EPA or elsewhere of any inconsistency with federal regulations; EPA 

did not point out such an inconsistency in its review. However, EPA’s review in 2015 did 

in fact uncover such inconsistencies. The proposed amended 20.11.61 NMAC would 

remove them. 

EPA PARALLEL PROCESSING OF THE PROPOSED AMENDMENTS 

EPA has informed EHD that a procedure known as “parallel processing” is 

available in this instance in order to expedite EPA’s review of the proposed amended 

20.11.61 NMAC. Parallel processing allows EPA to review a proposed SIP revision by a 

state or local air authority while that authority is itself engaged in rulemaking, prior to 

completion of the state or local rulemaking process. This approach differs from the 
8

normal SIP revision procedure, in which EPA’s final review of a proposed SIP revision 

occurs only after the state or local air authority first completes its rulemaking proceeding 

before submitting a proposed SIP revision to EPA. Parallel processing must be initiated 

by a request to EPA from the governor of a state or the governor’s designee. EPA utilizes 

parallel processing for proposed SIP revisions that are expected to be non-controversial 

and will not be further amended during the state or local rule-making process. Parallel 

processing is provided for in Appendix V, Section 2.3 of 40 CFR, Part 51. EPA’s email 

to EHD describing this process is shown as AQP Exhibit 3a. 

Following consultations with EPA on the nature of parallel processing, EHD 

initiated a request to EPA for the use of this process in regard to the proposed amended 

20.11.61 NMAC. The Director of EHD contacted the Governor of New Mexico’s 

designee for SIP-related submissions to EPA, New Mexico Environment Department 

Cabinet Secretary Ryan Flynn, asking that Secretary Flynn make a request to EPA for 

parallel processing. This letter is shown as AQP Exhibit 3b. Secretary Flynn responded 

by sending a letter to EPA requesting parallel processing. This letter is shown as AQP 

Exhibit 3c. Parallel processing by EPA of the proposed amended 20.11.61 NMAC is 

underway. Prior to EHD’s request to EPA to begin that process, EHD consulted with 

EPA in formulating its proposed draft of a new regulation, thereby satisfying EHD’s 

customary practice of submitting a draft regulation to EPA for comment prior to local 

rulemaking. I will discuss the involvement of other stakeholders later in my testimony. 
9

IMPACT OF THE PROPOSED AMENDMENTS 

EPA attaches particular urgency to submission of an amended 20.11.61 NMAC as 

a proposed SIP revision. This urgency is due in part to the need for EPA to clear its 

backlog of proposed SIP revisions. Revisions to the local PSD regulation are an 

important component in the multi-year work plan, agreed to by EHD and EPA, to address 

EPA’s backlog of proposed SIP revisions. 

Another reason for the urgency of adopting the proposed amended 20.11.61 

NMAC is that such action will enable EPA to complete its review of the more extensive 

PSD amendments submitted to EPA as a proposed SIP revision in 2013. Once EPA has 

approved that revision, the local PSD permit program will be EPA approved in its 

entirety. 

In addition, having an EPA approved PSD program is legally necessary in order 

for EPA to approve three other pending SIP revisions that must undergo EPA review. 

One is an Infrastructure SIP for the 2010 National Ambient Air Quality Standards 

(NAAQS) for nitrogen dioxide (NO2), adopted by the Air Board on June 12, 2013 and 

submitted to EPA in July 2013. A second pending SIP revision is an Infrastructure SIP 

for the 2008 NAAQS for lead, adopted by the Board on January 11, 2012 and submitted 

to EPA in May 2012. The third pending SIP revision is an Infrastructure SIP for the 2010 

NAAQS for sulfur dioxide, which is the subject of a separate rulemaking petition to this 

Board. Under EPA’s interpretation of Clean Air Act Infrastructure SIP requirements, 

EPA can’t approve these three Infrastructure SIPs until it first fully approves the local 
10

PSD program. Background on EPA’s interpretation of Clean Air Act Infrastructure SIP 

requirements regarding PSD is available in EPA’s guidance on preparation of an 

Infrastructure SIP, shown as AQP Exhibit 10. 

EHD does not anticipate any adverse impact on local sources resulting from 

adoption of the amended 20.11.61 NMAC. In part, this is because the proposed 

amendments are procedural, not substantive. They alter language in the regulation to 

align with federal regulations, but they do not require a regulated source to alter its 

behavior. 

In addition, the local PSD regulation applies to only a very narrow category of 

sources, and so is rarely triggered. In particular, the regulation applies to construction 

projects that build or modify a major (i.e. potentially very large) stationary source of air 

pollutants in a NAAQS attainment area for one or more of those pollutants. Historically, 

such construction projects have seldom occurred locally. Only two PSD permits have 

been issued since 1977 in the local area. The first was on May 9, 1977, at a time when the 

local PSD program was still administered by the U.S. Environmental Protection Agency. 

On that date, EPA Region 6 issued a PSD permit for the Portland cement manufacturing 

facility currently operating in Tijeras, New Mexico. This facility is owned by Groupo 

Cementos Chihuahua and is known as the GCC Rio Grande, Inc. - Tijeras Plant. Its 1977 

PSD permit was issued for construction of a finish mill at the plant, which was already in 

existence at the time. The second local issuance of a PSD permit, this time by the 

Environmental Health Department, occurred on March 9, 1998. This permit was for new 

construction to build a 150 megawatt simple cycle turbine electric generating station near 

the northeast corner of Rio Bravo and Broadway Blvd. SE in Albuquerque, New Mexico. 
11

This station exists today and is known as the Rio Bravo Generating Station, owned by 

Public Service Company of New Mexico. 

STAKEHOLDER REVIEW 

In view of the previously noted urgency of the proposed amendments to 20.11.61 

NMAC, and the non-substantive nature of the proposed amendments, EHD did not 

pursue its usual internal process of circulating a review draft of the proposed amended 

regulation prior to EHD’s petition for rulemaking. That internal process is not required 

under the Air Board’s rulemaking regulation, 20.11.82 NMAC. As an alternative, EHD 

decided, after consultation with EPA, to solicit stakeholder comments as part of the 

rulemaking procedures required under 20.11.82 NMAC. EHD pursued this approach in 

order to expedite the urgent rulemaking at EPA’s request. Under the 20.11.82 NMAC 

procedures, stakeholders were afforded ample opportunity to comment on the proposed 

amended 20.11.61 NMAC by: circulation of the Public Review Draft (attached to EHD’s 

petition for rulemaking), which is open to public comment; legal notice of the rulemaking 

hearing, which also makes the public aware of opportunities to comment; and the holding 

of the hearing itself, at which members of the public have further opportunity to 

comment. In sending notices of the above rulemaking actions, EHD specifically notified 

stakeholders likely to have an interest in amendments to the local PSD regulation, 

including PSD permit holders, environmental consultants and consulting organizations, 

Title V permit holders, and Synthetic Minor sources. 
12

At the time of submission of this testimony as an exhibit attached to EHD’s 

Notice of Intent, EHD has received no comment from any stakeholder on the proposed 

amended regulation. 

That concludes my testimony, and I stand with my colleagues from the EHD Air 

Quality Program for questions. 
t&Q» EXHIBIT 

J 1 

R[CEIVED I , ~·-; .;:t\nH~1n!TA.L H~ .... .----.- ALBUQUERQUE-BERNALILLO COUNTY 

AIRQUALITYCONTROLBOARD 13 JAN 29 t~H 10:31 

IN THE MATTER OF THE PETITION TO AMEND 20.11.60 NMAC, 

PERMITTING IN NONATTAINMENT AREAS; 20.11.61 NMAC, PREVENTION 

OF SIGNIFICANT DETERIORATION; AND 20.11.42 NMAC, OPERATING 

PERMITS. THE AMENDMENTS TO 20.11.42 NMAC ARE PROPOSED AS A 

REVISION TO mE TITLE V OPERATING PERMIT PROGRAM, AND THE 

AMENDMENTS TO 20.11.60 NMAC AND 20.11.61 NMAC ARE PROPOSED AS 

A REVISION TO THE NEW MEXICO STATE IMPLEMENTATION PLAN FOR 

AIR QUALITY (SIP). 

Air Quality Division, 

Environmental Health Department, 

City of Albuquerque, Petitioner 

AQCB Petition No. 2013-1 

Petition to Amend 20.11.60 NMAC, Permitting In Nonattainment Areas; 20.11.61 

NMAC, Prevention Of Significant Deterioration; and 20.11.42 NMAC, Operating 

Permits. The Amendments to 20.11.42 NMAC Are Proposed As a Revision to the 

Title V Operating Permit Program, and the Amendments to 20.11.60 NMAC and 

20.11.61 NMAC Are Proposed As a Revision to the New Mexico State 

Implementation Plan for Air Quality (SIP) 

The City of Albuquerque ("City''), by and through the Air Quality Division 

("Division") of the Environmental Health Department ("Department"), asks the 

Albuquerque-Bernalillo County Air Quality Control Board ("Air Board") to adopt 

amendments to 20.11.60 NMAC, Permitting In Nonattainment Areas; 20.11.61 NMAC, 

Prevention OfSignificant Deterioration; and 20.11.42 NMAC, Operating Permits. The 

Amendments to 20.11.42 NMAC will be submitted to EPA as a revision to the Title V 

Operating Permit Program, and the Amendments to 20.11.60 NMAC and 20.11.61 

NMAC will be submitted to EPA as a revision to the SIP. This Petition includes a 

request for a hearing on these matters and permission to provide a court reporter and 

hearing officer for the hearing. The New Mexico Air Quality Control Act ("Air Act"), 

NMSA 1978, Sections 74-2-4 and 74-2-S.B(l) [1967 as amended through 2007] 

authorizes and requires the Air Board to adopt, amend, or replace air quality regulations 

and to adopt air quality plans (SIPs) under NMSA 1978, Section 74-2-5.B(2). 

As grounds, Petitioner states the following: 

1. The provisions governing state implementation of the Nonattainment New 

Source Review (NNSR) permit program are contained in the CFR, Title 40, Protection of 

Environment, Part 51, Requirements for Submittal of Implementation Plans, Subpart I, 

1 
Review of New Sources and Modifications, Section 165, Permit Requirements. 

Albuquerque- Bernalillo County's implementation of this program is governed by 

20.11.60 NMAC, Permitting In Nonattainment Areas. 

2. The provisions governing state implementation of the Prevention of 

Signification Deterioration (PSD) permit program are contained in the CFR Title 40, 

Protection of Environment, Part 51, Requirements for Submittal of Implementation Plans, 

Subpart I, Review ofNew Sources and Modifications, Section 166, Prevention of 

Significant Deterioration of Air Quality. The provisions governing direct federal 

implementation of PSD are found at Title 40, Protection of Environment, Part 52, 

Approval and Promulgation of Implementation Plans, Subpart A, General Provisions, 

Section 21, Prevention of Significant Deterioration of Air Quality. Albuquerque -

Bernalillo County's implementation of the PSD program is governed by 20.11.61 

NMAC, Prevention of Significant Deterioration. 

3. The provisions governing major source operating permits pursuant to Title V 

of the Clean Air Act {CAA) are contained in 40 CFR Part 70, State Operating Permit 

Programs, and, within Albuquerque- Bernalillo County, at 20.11.42 NMAC, Operating 

Permits. 

4. On May 16,2008, the U.S. Environmental Protection Agency (EPA) 

promulgated "Implementation of the New Source Review (NSR) Program for Particulate 

Matter Less Than 2.5 Micrometers (PM2.s)", effective 7/15/08 [Federal Register Vol. 73, 

No. 96, 28321-50]. These amendments affect 40 CFR 51.165, and have already been 

incorporated into the currently effective version of 20.11.60 NMAC. These amendments 

also affect 40 CFR 51.166 and 52.21, and all but one amendment has been incorporated 

into the current! y effective version of 20.11.61 NMAC. This remaining amendment adds 

an additional exemption for stationary sources, and is cited as 20.11.61.18.D.(3) NMAC 

in the proposed draft. The department has the discretion to exempt a proposed major 

stationary source or major modification from Air Quality Analysis And Monitoring 

Requirements, with respect to monitoring for a particular pollutant if ... the pollutant is 

not listed in Table 3 of 20.11.61.28 NMAC, Significant Monitoring Concentrations: 

5. On October 20, 2010, the EPA promulgated "PSD for PM2.s- Increments, 

Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)", 

effective 12/20/10 [Federal Register Vol. 75, No. 202, 64864-907]. These amendments 

affect 40 CFR 51.165, and have been incorporated into the proposed draft of 20.11.60 

NMAC. These amendments also affect 40 CFR 51.166 and 52.21 and have been 

incorporated into the proposed draft of20.11.61 NMAC. One exception is for an 

amendment that would have been inserted at 20.11.61.15.B.(2) NMAC, re: "SILs" [see 

40 CFR 51.166.(k)(2) & 52.21(k)(2)], but which EPA has conceded to be vacated and 

remanded to EPA, in response to Sierra Club v. EPA, another exception is the proposed 

SMC for PM2.s at 20.11.61.28 NMAC which was also vacated by the US Court of 

Appeals [Case No. 10-1413, decided January 22, 2013] (Document at 

http://www .cadc. uscourts.gov/internet/opinions.ns£'3964 717CAD7BDA0085257 AFB005 

5425F/$file/l 0-1413-1416378.pdf 

2 
Docket at 

http://www.regulations.gov/#!searchResults;rpp=25;po=O;s=EPA%25E2%2580%2593H 

Q%25E2%2580%25930AR %25E2%2580%25932006%25E2%2580%25930605 ). 

Incorporation of changes to the federal PSD rule into the local PSD rule are required not 

only to keep the local PSD program up to date, but is also required for the Infrastructure 

SIP for the 2010 Nitrogen Dioxide (N02) National Ambient Air Quality Standards 

(NAAQS) because EPA requires that any i-SIP submittal should address any new or 

revised PSD program requirements. The N02 i-SIP is anticipated to be submitted to EPA 

in May, 2013. 

"When a source applies for a pennit to emit a regulated pollutant in an area that meets the 

NAAQS, the state and EPA must determine if emissions of the regulated pollutant from 

the source will cause "significant" deterioration in air quality. 

This final rule establishes several components for making PSD permitting determinations 

for fine particle pollution. These components address air quality modeling and 

monitoring provisions for fine particle pollution in areas protected by the PSD program 

and include: increments, SILs, and a SMC. 

PSD Inerements (Increments) 

A system of"increments" is the mechanism used to estimate significant deterioration of 

ambient air quality for a pollutant. An increment is the maximum allowable increase in 

ambient concentrations of a pollutant in an area. Increases above that level will be 

considered to significantly deteriorate air quality and cannot be allowed. 

EPA set the PSD increments for PMu using the "percent ofNAAQS" approach that 

Congress used to establish the original increments for particulate matter (PM) and sulfur 

dioxide (S02) in 1977. EPA also used this approach to establish N02 increment 

regulations on October 12,2005. Tiris approach treats PM2.s as a new pollutant, and does 

not impact the existing annual and 24-hour increments for PM, measured as "PM to." 

Significant Impact Levels (SILs) 

SILs are a screening tool used to determine whether a proposed source's emissions will 

have a "significant" impact on air quality in the area. If an individual facility projects an 

increase in air quality impacts less than the corresponding SIL, its impact is said to be de 

minimis and the permit applicant would not be required to perform a more 

comprehensive, cumulative modeling analysis. A cumulative analysis involves 

measuring the impact of the new facility in addition to impacts from other existing 

sources in the area. If a cumulative modeling analysis indicates a violation of the 

NAAQS, the SILs may also be used to determine whether the proposed source's impact 

on a modeled violation is significant enough that it is considered to "cause or contribute 

to" the modeled violation of the NAAQS or increment. 

EPA proposed SILs for PM2.s by scaling the existing SILs for PM10 by the ratio of the 

PM2.s NAAQS to the PMto NAAQS for each applicable averaging period (annual and 24-

hour)", but the U.S. Court of Appeals vacated and remanded to the EPA for further 

3 
consideration the portions of EPA's rule addressing 'SILs', except for the parts of EPA's 

rule codifying PM2.s SILs in 40 CFR § 56.165(b )(2). 

Significant Monitoring Concentration (SMC) 

The SMC, is a screening tool that may be used to determine if a source must submit to 

the permitting authority 1 year of pre-construction air quality monitoring data prior to 

constructing or modifying a facility. 

If a proposed source's predicted impact is less than the SMC, the source's impact may be 

considered de minimis for monitoring purposes, and the reviewing authority (i.e. 

Department) could exempt the applicant from the preconstruction monitoring 

requirement. The reviewing authority also may exempt the applicant from the 

monitoring requirement if the existing air quality in the area is shown to be less than the 

SMC. 

EPA based its final SMC for PM2.s on the "Lowest Detection Concentration" for ambient 

PM2.s concentrations- 2 J.Lg/m3 (24-hour average). To account for uncertainty with 

precision, sample handling, and monitor variability, etc. to establish an SMC of 4 J.Lg/m3 

(24-hour average) for PM2s·" (EPA Fact Sheet, 

http://www.epa.gov/nsr/documents/20100929factsheet.pdf) 

The U.S. Court of Appeals has granted the Sierra Club's petition as to the parts of EPA' 

rule establishing a PM2.s SMC and vacated them because these parts of the rule exceed 

EPA's statutory authority [See 42 U.S.C. § 7607(d)(9)(c). 

6. On March 30, lOll, the EPA promulgated "PSD and NNSR: Reconsideration 

of Inclusion of Fugitive Emissions; Interim Rule; Stay and Revisions", effective 3/30/11 

[Federal Register Vol. 76, No. 61, 17548-56]. These amendments affect 40 CFR 51.165, 

51.166 and 52.21, and have been incorporated into the proposed drafts of 20.11.60 

NMAC, and 20.11.61 NMAC. 

This "interim rule to stays a December 2008 rule known as ''the Fugitive Emissions 

Rule", which established new provisions for how fugitive emissions, those that do not 

pass through a stack, chimney, vent, or other similar opening, should be treated for NSR 

permitting. This stay replaces the stay EPA issued on March 31, 2010, that was to be 

effective through October 3, 2011. 

The March 2010 stay of the Fugitive Emissions Rule inadvertently covered portions of 

the NSR permitting requirements in the CFR that should not have been stayed." This 

March 30, 2011 action stays the 2008 Fugitive Emissions Rule as originally intended and 

reverts the regulatory text back to the language that existed prior to the Fugitive 

Emissions Rule amendments that EPA is currently reconsidering. 

The final rule will remain in effect until EPA completes its reconsideration of how 

fugitive emissions should be treated in the NSR permitting program .. " (EPA Fact Sheet, 

http://www .epa.gov/nsr/documents/20 11 0308fefactsheet.pdf) 

4 
7. On July 20, 2011, EPA promulgated "Deferral for C02 Emissions From 

Bioenergy and Other Biogenic Sources Under the PSD and Title V Programs", effective 

7/20/11. "State, local, and tribal permitting authorities may adopt the deferral at their 

option but the deferral is effective upon publication for the PSD and Title V permit 

programs that are implemented by EPA." [Federal Register Vol. 76, No. 139,43490-

43508]. These amendments affect 40 CFR 51.166 and 52.21, and have been incorporated 

into the proposed draft of20.11.61 NMAC. They also affect 40 CFR 70, State Operating 

Permit Programs, at 70.2, Definitions, and have been incorporated into the proposed draft 

of20.11.42 NMAC, Operating Permits, at 20.11.42.7.11.(2) NMAC. 

"This final action defers, for a period of three years, the application of the PSD and Title 

V permitting requirements to C02 emissions from bioenergy and other biogenic 

stationary sources (biogenic C~). 

During this three year deferral period, EPA will conduct a detailed examination of the 

science associated with biogenic C02 emissions from stationary sources. 

Biogenic C02 emissions 

Biogenic C02 emissions are emissions of C02 from a stationary source directly resulting 

from the combustion or decomposition of biologically-based materials other than fossil 

fuels and mineral sources of carbon. Examples include,: C02 generated from: 

• the biological decomposition of waste in landfills, wastewater treatment or 

manure management processes; 

• the combustion of biogas; 

• fermentation during ethanol production; 

• combustion of the biological fraction of municipal solid waste or biosolids; or 

tire-derived fuel; and 

• combustion of biological material,." (EPA Fact Sheet, 

http://www.epa.gov/nsr/documents/Biogenic Fact Sheet June 201l.pdf) 

Adoption of the biomass deferral provisions will allow the Division to avoid the need to 

determine net carbon cycle impacts for bio-energy projects until EPA has adopted a 

consistent and practical framework for such calculations, and avoid spending valuable 

time and resources evaluating sources that may have de minimis, neutral or positive 

impact on net C02 levels in the atmosphere. 

8. On July 12, 2012, EPA promulgated "PSD and Title V Greenhouse Gas 

Tailoring Rule Step 3 and GHG Plantwide Applicability Limits", effective 8/13/12 

[Federal Register Vol. 77, No. 134, 41051-75]. These amendments affect 40 CFR 52.21, 

and have been incorporated into the proposed draft of20.11.61 NMAC. 

This "final rule that does not revise the GHG permitting thresholds that were established 

in Step 1 and Step 2 of the GHG Tailoring Rule. These emissions thresholds determine 

when CAA permits under the NSR PSD and title V Operating Permit programs are 

required for new and existing industrial facilities. 

5 
After evaluating comments on the proposed rule, and assessing the progress of GHG 

permitting to date, EPA has determined that state permitting authorities have not had 

sufficient time to develop necessary permitting infrastructure and to increase their GHG 

permitting expertise and capacity. By the same token, EPA and the state permitting 

authorities have not had the opportunity to develop and implement streamlining 

approaches. Therefore, at this time, it is not appropriate to apply PSD and Title V 

permitting requirements to additional, smaller sources ofGHG emissions. 

EPA is also finalizing an approach to assist state and local permitting authorities in 

streamlining the administration ofPSD permits for GHGs. This action will improve the 

usefulness ofplantwide applicability limitations (PALs) for GHG emissions by allowing 

GHG PALs to be established on a C02e basis in addition to the already available massbasis. 

Plantwide Applicability Limit (PAL) 

A PAL is an emissions limit applied source-wide rather than to specific emissions points. 

With a PAL, a source can make changes to the facility without triggering PSD permitting 

requirements as long as emissions do not increase above the limit established by the PAL. 

This would allow companies to respond rapidly to changing market conditions while 

protecting the environment. EPA is also revising its regulations to allow a source that 

emits or has the potential to emit GHGs at levels above 100,000 tpy C02e but that have 

emissions of other regulated pollutants at minor source levels to apply for a GHG PAL 

while still maintaining its minor source status." (EPA Fact Sheet, 

http://www .epa.gov /nsr/ documents/20 120702fs.pdf) 

Adoption ofthe PAL amendments for GHGs would allow the Division to provide greater 

operational flexibility to permitted sources by issuing GHG PALs to GHG-only sources 

without requiring the sources to become a major source. GHG-only sources could obtain 

a GHG PAL and remain a minor source as long as their GHG emissions remain below the 

PAL. 

9. On October 25,2012, EPA promulgated "Implementation of the NSR 

Program for PM 2.5: Amendment to the Definition of"Regulated NSR Pollutant" 

Concerning Condensable Particulate Matter", effective 12/24/12 [Federal Register Vol. 

77, No. 207, 65107-19]. These amendments affect 51.166 and 52.21, and have been 

incorporated into the proposed draft of20.11.61 NMAC 

These amendments to EPA's rules for the CAA NSR permitting program regard the 

definition of''regulated NSR pollutant," clarifying when "condensable particulate 

matter" should be measured. 

"Condensable particulate matter is not directly emitted as a solid or liquid at the stack. 

Instead gaseous emissions such as sulfuric acid mist, ammonium sulfate, and certain 

metal vapors condense upon cooling and dilution in the ambient air to form solid or 

liquid particles following discharge from the stack. 

6 
When an industrial facility applies for a NSR permit to construct or modify an emissions 

source, it must show that it does not interfere with an area's ability to meet or maintain 

the NAAQS. Since EPA has established NAAQS for PM2.s and PM10, and condensable 

particulate matter emissions contribute to monitored levels ofPM2.s and PM10, then the 

impact of those emissions on monitored air quality levels of PM2.s and PM10 must be 

considered as part of a source's permit. 

This final rule continues to require that condensable particulate matter be included as part 

of the emissions measurements for regulation ofPM2.sPM1o. 

This final rule removes the inadvertent requirement in the 2008 PM2.s NSR 

Implementation Rule, that measurements of condensable particulate matter emissions be 

included as part of the measurement and regulation of''particulate matter emissions." 

The terminology ''particulate matter emissions" includes particles that are significantly 

larger than either PM2.s or PM10, and is used primarily to measure compliance with the 

EPA's existing New Source Performance Standards for particulate matter. The amount 

of ''particulate matter emissions" that a source has the potential to emit is not intended to 

be used for determining whether an area can attain or maintain either of the existing sets 

of standards for particle pollution." (EPA Fact Sheet, 

http://www.eoa.gov/nsr/documents/20 1210 12fs.pdf) 

10. It is anticipated that the hearing will take approximately 1 hour or less. 

11. The proposed Public Review Drafts of 20.11.60 NMAC, Permitting In 

Nonattainment Areas; 20.11.61 NMAC, Prevention of Significant Deterioration; and 

20.11.42 NMAC, Operating Permits, are attached as AQD Exhibits #1a, 1b, & 1c 

respectively. 

7 
Respectfully submitted, 

CERTIFICATION 

I hereby certify that the original and 15 copies of this Petition to Amend 20.11.60 

NMAC, Permitting In Nonattainment Areas; 20.11.61 NMAC, Prevention Of 

Significant Deterioration; and 20.11.42 NMAC, Operating Permits. The 

Amendments to 20.11.42 NMAC Are Proposed As a Revision to the Title V 

Operating Permit Program, and the Amendments to 20.11.60 NMAC and 20.11.61 

NMAC Are Proposed As a Revision to the New Mexico State Implementation Plan 

for Air Quality (SIP), were delivered to the following person on January 29,2013. 

Elizabeth Jones 

Air Quality Control Board Liaison 

Environmental Health Department 

One Civic Plaza, NW, Suite 3023 

Albuquerque, New Mexico 87102 

and that a copy was provided to: 

Bill Grantham, Attorney to the Air Quality Control Board 

at wggrantharn@gmail.com 

M Lou eonard, Director, 

En o ental Health Department 

City of buquerque 

8 
RECEIVELl 

BEFORE THE ALBUQUERQUE-BERNALILLO COuNTY·Oi·U·lENTI\L HEt,LTH 

AIR QUALITY CONTROL BOARD 13 ~lr~R 2 O Pt·! 1: IG 

IN THE MATTER OF THE PETITION TO AMEND 20.11.60 NMAC, PERMITTING IN 

NONATTAINMENT AREAS; 20.11.'61 NMAC, PREVENTION OF SIGNIFICANT 

DETERIORATION; AND 20.11.42 NMAC, OPERATING PERMITS. THE 

AMENDMENTS TO 20.11.42 NMAC ARE PROPOSED AS A REVISION TO THE 

TITLE V OPERATING PERMIT PROGRAM, AND THE AMENDMENTS TO 20.11.60 

NMAC AND 20.11.61 NMAC ARE PROPOSED AS A REVISION TO THE NEW 

MEXICO STATE IMPLEMENTATION PLAN FOR AIR QUALITY (SIP). 

Air Quality Division, 

Environmental Health Department, 

City of Albuquerque, Petitioner 

AQCB Petition No. 2013-1 

CITY OF ALBUQUERQUE'S NOTICE OF INTENT TO PRESENT TECHNICAL 

TESTIMONY 

Pursuant to 20.11.82.20 NMAC, Rulemaking Procedures -Air Quality Control Board, 

the City of Albuquerque Environmental Health Department, Air Quality Division ("the 

Division") hereby submits its Notice of Intent to present technical testimony (NO I) in this 

proceeding. 

1. The person for whom the witness will testify. 

City of Albuquerque Environmental Health Department, Air Quality Division 

2. The name and qualifications of each technical witness. 

Neal T. Butt. Environmental Health Scientist, Control Strategies Section, Air Quality 

Division. M.S. Biology (Wildlife Biology), University of North Dakota; B.S. Biology 

(Zoology), University of New Mexico; B.A. Environmental Planning & Design, UNM; A.A.S. 

Criminal Justice, Central New Mexico Community College; A.A.S. Environmental Protection 

Notice of Intent Page 1 of 17 
Technology, CNM; WERC Waste Management Certificate, UNM Chemical & Nuclear 

Engineering Department. Employed by the City of Albuquerque's Environmental Health 

Department for 15 +years; the last 12 of which have been in the Air Quality Division. 

Chief responsibility is to promulgate air quality legislation through the AlbuquerqueBernalillo County Air Quality Control Board for implementation within the County of 

Bernalillo, including research, drafting and editing of technical documents, hearing preparation, 

testifying, and submittal to EPA for approval. Develop and implement long range plans, 

programs and special projects in the field of municipal environmental health. Research and 

refine strategies for achieving improved environmental health standards. Collaborate with other 

disciplines, follow schedules and budget commitments, work independently, and problem solve. 

Isreal Tavarez. Environmental Health Manager, Permitting Section, Air Quality 

Division. M.S. Chemical Engineering, New Mexico State University; B.S. Chemical 

Engineering, NMSU. Registered Professional Engineer (New Mexico). Employed by the City 

of Albuquerque's Environmental Health Department, Air Quality Division for 17 +years. 

Previously employed by the State ofNew Mexico, Air Quality Bureau (1994-1996). 

Main responsibility is to manage the air quality stationary source permitting program 

which includes reviewing and approving all air quality stationary source permits to ensure the 

permits are issued in accordance with local, state, and federal regulations. 

Dario Rocha. Supervisor, Permitting and Technical Analysis Section, Air Quality 

Division. B.S. Mechanical Engineering, New Mexico State University. Employed by the City 

Notice oflntent Page 2 of 17 
of Albuquerque's Environmental Health Department, Air Quality Division for 13 +years. 

Previously employed by the State of New Mexico, Air Quality Bureau (1997-2000). 

Chief responsibility is to supervise and direct staff in the Permitting & Technical 

Analysis Section for the Air Quality Division. Assign air quality permit applications for NSR 

and Title V air permitting programs. Make applicability determinations for air quality 

permitting. Review and approve portable stationary source relocations within Bernalillo County. 

Prepare air quality permits for minor and major stationary sources. Responsible for ensuring all 

air quality permits for minor and major stationary sources are issued or denied within their 

respective regulatory or statutory timeframes. Responsible for ensuring that stationary source air 

quality emissions inventories are prepared in accordance with 40 CFR 51 Subpart A. 

3. Summary and Estimated Duration of Testimony 

Mr. Butt's written testimony is attached as AQD Exhibit# 3. Mr. Butt will testify that 

this revision to the SIP should be approved. As grounds, Petitioner states the following: 

1. The provisions governing state implementation of the Nonattainment New Source 

Review (NNSR) permit program are contained in the CFR, Title 40, Protection of Environment, 

Part 51, Requirements for Submittal of Implementation Plans, Subpart I, Review of New Sources 

and Modifications, Section 165, Permit Requirements. Albuquerque- Bernalillo County's 

implementation of this program is governed by 20.11.60 NMAC, Permitting in Nonattainment 

Areas. 

2. The provisions governing state implementation of the Prevention of Signification 

Deterioration (PSD) permit program are contained in the CFR Title 40, Protection of 

Notice of Intent Page 3 of 17 
Environment, Part 51, Requirements for Submittal of Implementation Plans, Subpart I, Review of 

New Sources and Modifications, Section 166, Prevention of Significant Deterioration of Air 

Quality. The provisions governing direct federal implementation of PSD are found at Title 40, 

Protection of Environment, Part 52, Approval and Promulgation of Implementation Plans, 

Subpart A, General Provisions, Section 21, Prevention of Significant Deterioration of Air 

Quality. Albuquerque- Bernalillo County's implementation of the PSD program is governed by 

20.11.61 NMAC, Prevention of Significant Deterioration. 

3. The provisions governing major source operating permits pursuant to Title V of the 

Clean Air Act (CAA) are contained in 40 CFR Part 70, State Operating Permit Programs, and, 

within Albuquerque- Bernalillo County, at 20.11.42 NMAC, Operating Permits. 

4. On May 16,2008, the U.S. Environmental Protection Agency (EPA) promulgated 

"Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 

2.5 Micrometers (PMz.s)", effective 7/15/08 [Federal Register Vol. 73, No. 96, 28321-50]. These 

amendments affect 40 CFR 51.165, and have already been incorporated into the currently 

effective version of 20.11.60 NMAC. These amendments also affect 40 CFR 51.166 and 52.21, 

and all but one amendment has been incorporated into the currently effective version of20.11.61 

NMAC. This remaining amendment adds an additional exemption for stationary sources, and is 

cited at 20.11.61.18.D.(3) NMAC in the proposed draft. The department has the discretion to 

exempt a proposed major stationary source or major modification from Air Quality Analysis And 

Monitoring Requirements, with respect to monitoring for a particular pollutant if ... the pollutant 

is not listed in Table 3 of 20.11.61.28 NMAC, Significant Monitoring Concentrations: 

Notice of Intent Page 4 of 17 
5. On October 20, 2010, the EPA promulgated "PSD for PM2.s - Increments, Significant 

Impact Levels (SILs) and Significant Monitoring Concentration (SMC)", effective 12/20/10 

[Federal Register Vol. 75, No. 202, 64864-907]. These amendments affect 40 CFR 51.165, and 

have been incorporated into the proposed draft of20.11.60 NMAC. These amendments also 

affect 40 CFR 51.166 and 52.21 and have been incorporated into the proposed draft of 20.11.61 

NMAC. One exception is for an amendment that would have been inserted at 20.11.61.15.B.(2) 

NMAC, re: "SILs" [see 40 CFR 51.166.(k)(2) & 52.21(k)(2)], but which EPA has conceded to 

be vacated and remanded to EPA, in response to Sierra Club v. EPA. Another exception is the 

proposed SMC for PM2.5 at 20.11.61.28 NMAC which was also vacated by the US Court of 

Appeals [Case No. 10-1413; decided January 22, 2013] (Document at 

http:/ /www.cadc. uscourts.gov /internet/opinions.ns£'3 964 717CAD7BDA0085257 AFB0055425F I 

$file! I 0-1413-1416378.pdf 

Docket at 

http://www.regulations.gov/#!searchResults;rpp=25;po=O;s=EPA%25E2%2580%2593HQ%25E 

2%2580%25930AR%25E2%2580%25932006%25E2%2580%25930605 ). Incorporation of 

changes to the federal PSD rule into the local PSD rule are required not only to keep the local 

PSD program up to date, but is also required for the Infrastructure SIP for the 2010 Nitrogen 

Dioxide (N02) National Ambient Air Quality Standards (NAAQS) because EPA requires that 

any i-SIP submittal should address any new or revised PSD program requirements. The N02 iSIP is anticipated to be submitted to EPA in June, 2013. 

Notice of Intent Page 5 of 17 
"When a source applies for a permit to emit a regulated pollutant in an area that meets the 

NAAQS, the state and EPA must determine if emissions of the regulated pollutant from the 

source will cause "significant" deterioration in air quality. 

This final rule establishes several components for making PSD permitting determinations for fine 

particle pollution. These components address air quality modeling and monitoring provisions for 

fine particle pollution in areas protected by the PSD program and include: increments, SILs, and 

aSMC. 

PSD Increments (Increments) 

A system of"increments" is the mechanism used to estimate significant deterioration of ambient 

air quality for a pollutant. An increment is the maximum allowable increase in ambient 

concentrations of a pollutant in an area. Increases above that level will be considered to 

significantly deteriorate air quality and cannot be allowed. 

EPA set the PSD increments for PM2.s using the "percent ofNAAQS" approach that Congress 

used to establish the original increments for particulate matter (PM) and sulfur dioxide (S02) in 

1977. EPA also used this approach to establish N02 increment regulations on October 12,2005. 

This approach treats PM2.5 as a new pollutant, and does not impact the existing annual and 24-

hour increments for PM, measured as "PM10." 

Significant Impact Levels (SILs) 

Notice of Intent Page 6 of 17 
SILs are a screening tool used to determine whether a proposed source's emissions will have a 

"significant" impact on air quality in the area. If an individual facility projects an increase in air 

quality impacts less than the corresponding SIL, its impact is said to be de minimis and the 

permit applicant would not be required to perform a more comprehensive, cumulative modeling 

analysis. A cumulative analysis involves measuring the impact of the new facility in addition to 

impacts from other existing sources in the area. If a cumulative modeling analysis indicates a 

violation of the NAAQS, the SILs may also be used to determine whether the proposed source's 

impact on a modeled violation is significant enough that it is considered to "cause or contribute 

to" the modeled violation of the NAAQS or increment. 

EPA proposed SILs for PM2.s by scaling the existing SILs for PM10 by the ratio of the PM2.s 

NAAQS to the PM to NAAQS for each applicable averaging period (annual and 24-hour)", but 

the U.S. Court of Appeals vacated and remanded to the EPA for further consideration the 

portions of EPA's rule addressing 'SILs', except for the parts of EPA's rule codifying PM2.

5 

SILs in 40 CFR § 56.165(b )(2). 

Significant Monitoring Concentration (SMC) 

The SMC, is a screening tool that may be used to determine if a source must submit to the 

permitting authority one year of pre-construction air quality monitoring data prior to constructing 

or modifying a facility. 

If a proposed source's predicted impact is less than the SMC, the source's impact may be 

considered de minimis for monitoring purposes, and the reviewing authority (i.e. Department) 

Notice of Intent Page 7 of 17 
could exempt the applicant from the preconstruction monitoring requirement. The reviewing 

authority also may exempt the applicant from the monitoring requirement if the existing air 

quality in the area is shown to be less than the SMC. 

EPA based its final SMC for PM2.s on the "Lowest Detection Concentration" for ambient PM2.s 

concentrations~ 2 J.l.g/m3 (24-hour average). To account for uncertainty with precision, sample 

handling, and monitor variability, etc. to establish an SMC of 4 J.l.g/m3 (24-hour average) for 

PM2.s·" (EPA Fact Sheet, http://www.epa.gov/nsr/docurnents/20100929factsheet.pdf) 

The U.S. Court of Appeals has granted the Sierra Club's petition as to the parts of EPA' rule 

establishing a PM2.s SMC and vacated them because these parts of the rule exceed EPA's 

statutory authority [See 42 U.S.C. § 7607(d)(9)(c). 

6. On March 30,2011, the EPA promulgated "PSD and NNSR: Reconsideration of 

Inclusion of Fugitive Emissions; Interim Rule; Stay and Revisions", effective 3/30/11 [Federal 

Register Vol. 76, No. 61, 17548-56]. These amendments affect 40 CFR 51.165, 51.166 and 

52.21, and have been incorporated into the proposed drafts of 20.11.60 NMAC, and 20.11.61 

NMAC. 

This "interim rule to stays a December 2008 rule known as "the Fugitive Emissions Rule", which 

established new provisions for how fugitive emissions, those that do not pass through a stack, 

chimney, vent, or other similar opening, should be treated for NSR permitting. This stay 

replaces the stay EPA issued on March 31,2010, that was to be effective through October 3, 

2011. 

Notice of Intent Page 8 of 17 
The March 2010 stay of the Fugitive Emissions Rule inadvertently covered portions of the NSR 

permitting requirements in the CFR that should not have been stayed." This March 30, 2011 

action stays the 2008 Fugitive Emissions Rule as originally intended and reverts the regulatory 

text back to the language that existed prior to the Fugitive Emissions Rule amendments that EPA 

is currently reconsidering. 

The final rule will remain in effect until EPA completes its reconsideration of how fugitive 

emissions should be treated in the NSR permitting program." (EPA Fact Sheet, 

http://www.epa.gov/nsr/documents/2011 0308fefactsheet.pdf) 

7. On July 20, 2011, EPA promulgated "Deferral for C02 Emissions From Bioenergy 

and Other Biogenic Sources Under the PSD and Title V Programs", effective 7/20/11. "State, 

local, and tribal permitting authorities may adopt the deferral at their option but the deferral is 

effective upon publication for the PSD and Title V permit programs that are implemented by 

EPA." [Federal Register Vol. 76, No. 139, 43490-43508]. These amendments affect 40 CFR 

51.166 and 52.21, and have been incorporated into the proposed draft of 20.11.61 NMAC. They 

also affect 40 CFR 70, State Operating Permit Programs, at 70.2, Definitions, and have been 

incorporated into the proposed draft of20.11.42 NMAC, Operating Permits, at 20.11.42.7.11.(2) 

NMAC. 

Notice of Intent Page 9 of 17 
"Tins final action defers, for a period of three years, the application of the PSD and Title V 

permitting requirements to C02 emissions from bioenergy and other biogenic stationary sources 

(biogenic C02). 

During this three year deferral period, EPA will conduct a detailed examination of the science 

associated with biogenic C02 emissions from stationary sources. 

Biogenic CO:z emissions 

Biogenic C02 emissions are emissions of C02 from a stationary source directly resulting from 

the combustion or decomposition of biologically-based materials other than fossil fuels and 

mineral sources of carbon. Examples include, C02 generated from: 

• the biological decomposition of waste in landfills, wastewater treatment or manure 

management processes; 

• the combustion ofbiogas; 

• fermentation during ethanol production; 

• combustion of the biological fraction of municipal solid waste or biosolids; or tirederived fuel; and 

• combustion ofbiological material,." (EPA Fact Sheet, 

http://www.epa.gov/nsr/documents/Biogenic Fact Sheet June 2011.pdf) 

Adoption of the biomass deferral provisions will allow the Division to avoid the need to 

determine net carbon cycle impacts for bio-energy projects until EPA has adopted a consistent 

Notice of Intent Page 10 of 17 
and practical framework for such calculations, and avoid spending valuable time and resources 

evaluating sources that may have de minimis, neutral or positive impact on net C02 levels in the 

atmosphere. 

8. On July 12, 2012, EPA promulgated "PSD and Title V Greenhouse Gas (GHG) 

Tailoring Rule Step 3 and GHG Plantwide Applicability Limits", effective 8/13112 [Federal 

Register Vol. 77, No. 134, 41051-75]. These amendments affect 40 CFR 52.21, and have been 

incorporated into the proposed draft of20.11.61 NMAC. 

This "final rule that does not revise the GHG permitting thresholds that were established in Step 

1 and Step 2 of the GHG Tailoring Rule. These emissions thresholds determine when CAA 

permits under the NSR PSD and Title V Operating Permit programs are required for new and 

existing industrial facilities. 

After evaluating comments on the proposed rule, and assessing the progress of GHG permitting 

to date, EPA has determined that state permitting authorities have not had sufficient time to 

develop necessary permitting infrastructure and to increase their GHG permitting expertise and 

capacity. By the same token, EPA and the state permitting authorities have not had the 

opportunity to develop and implement streamlining approaches. Therefore, at this time, it is not 

appropriate to apply PSD and Title V permitting requirements to additional, smaller sources of 

GHG emissions. 

Notice of Intent Page 11 of 17 
EPA is also finalizing an approach to assist state and local permitting authorities in streamlining 

the administration ofPSD permits for GHGs. This action will improve the usefulness ofP ALs 

for GHG emissions by allowing GHG PALs to be established on a COze basis in addition to the 

already available mass-basis. 

Plantwide Applicability Limit (PAL) 

A PAL is an emissions limit applied source-wide rather than to specific emissions points. With a 

PAL, a source can make changes to the facility without triggering PSD permitting requirements 

as long as emissions do not increase above the limit established by the PAL. This would allow 

companies to respond rapidly to changing market conditions while protecting the environment. 

EPA is also revising its regulations to allow a source that emits or has the potential to emit GHGs 

at levels above 100,000 tpy C02e but that have emissions of other regulated pollutants at minor 

source levels to apply for a GHG PAL while still maintaining its minor source status." (EPA 

Fact Sheet, http://www .epa.gov/nsr/documents/20 120702fs.pdf) 

Adoption of the PAL amendments for GHGs would allow the Division to provide greater 

operational flexibility to permitted sources by issuing GHG PALs to GHG-only sources without 

requiring the sources to become a major source. GHG-only sources could obtain a GHG PAL 

and remain a minor source as long as their GHG emissions remain below the PAL. 

9. On October 25, 2012, EPA promulgated "Implementation of the NSR Program for 

PM 2.s: Amendment to the Definition of"Regulated NSR Pollutant" Concerning Condensable 

Particulate Matter", effective 12/24/12 [Federal Register Vol. 77, No. 207, 65107-19]. These 

Notice of Intent Page 12 of 17 
amendments affect 51.166 and 52.21, and have been incorporated into the proposed draft of 

20.11.61 NMAC 

These amendments to EPA's rules for the CAA NSR permitting program regard the definition of 

"regulated NSR pollutant," clarifying when "condensable particulate matter" should be 

measured. 

"Condensable particulate matter is not directly emitted as a solid or liquid at the stack. 

Instead gaseous emissions such as sulfuric acid mist, ammonium sulfate, and certain metal 

vapors condense upon cooling and dilution, in the ambient air, to form solid or liquid particles 

following discharge from the stack. 

When an industrial facility applies for a NSR permit to construct or modify an emissions source, 

it must show that it does not interfere with an area's ability to meet or maintain the NAAQS. 

Since EPA has established NAAQS for PM2.s and PM10, and condensable particulate matter 

emissions contribute to monitored levels ofPM2.5 and PM10, then the impact of those emissions 

on monitored air quality levels ofPM2.5 and PM10 must be considered as part of a source's 

permit. 

This final rule continues to require that condensable particulate matter be included as part of the 

emissions measurements for regulation ofPM2.5PM10• 

Notice of Intent Page 13 of 17 
This final rule removes the inadvertent requirement in the 2008 PM2.s NSR Implementation 

Rule, that measurements of condensable particulate matter emissions be included as part of the 

measurement and regulation of 'particulate matter emissions.,. 

The terminology '"particulate matter emissions 'includes particles that are significantly larger 

than either PM2.s or PM10, and is used primarily to measure compliance with the EPA's existing 

New Source Performance Standards for particulate matter. The amount of 'particulate matter 

emissions ' that a source has the potential to emit is not intended to be used for determining 

whether an area can attain or maintain either ofthe existing sets of standards for particle 

pollution." (EPA Fact Sheet, http://www.epa.gov/nsr/documents/20121012fs.pdf) 

4. Text of Recommended Revisions to the New Mexico State Implementation Plan 

The Division recommends adoption of the proposed amendments to 20.11.60 NMAC, 

Permitting In Nonattainment Areas; 20.11.61 NMAC, Prevention Of Significant Deterioration; 

and 20.11.42 NMAC, Operating Permits as proposed in the Public Review Drafts, shown as 

AQD Exhibits # la, #1b and #lc respectively, which are attached to the Petition to Amend, 

shown as AQD Exhibit #1, filed January 29, 2013. The Amendments to 20.11.42 NMAC will be 

submitted to EPA as a revision to the Title V Operating Permit Program, and the Amendments to 

20.11.60 NMAC and 20.11.61 NMAC will be submitted to EPA as a revision to the SIP. 

Mr. Butt's testimony is anticipated to take approximately 30 minutes. 

5. List and Description of Exhibits 

The Division has attached the following exhibits to this NOI: 

Notice oflntent Page 14 of 17 
Exhibit Number 

AQD Exhibit 1 

AQD Exhibit 1 a 

AQD Exhibit 1 b 

AQD Exhibit 1 c 

Title of Exhibit 

Petition to Amend 20.11.60 NMAC, Permitting In Nonattainment Areas; 

20.11.61 NMAC, Prevention Of Significant Deterioration; and 20.11.42 

NMAC, Operating Permits. The Amendments to 20.11.42 NMAC Are 

Proposed As a Revision to the Title V Operating Permit Program, and the 

Amendments to 20.11.60 NMAC and 20.11.61 NMAC Are Proposed As a 

Revision to the New Mexico State Implementation Plan for Air Quality 

(SIP) 

Public Review Draft 20.11.60 NMAC, Permitting In Nonattainment Areas 

{attached to AQD Exhibit 1} 

Public Review Draft 20.11.61 NMAC, Prevention OfSignificant 

Deterioration {attached to AQD Exhibit 1 } 

Public Review Draft 20.11.42 NMAC, Operating Permits {attached to 

AQD Exhibit l} 

AQD Exhibits 2alb/c Notice ofProposed Rulemaking: Albuquerque Journal, 2/17/13 {2a}; NM 

Register, 2/28/13 {2b}; and Air Quality Announce List Serve, 2/15/13 

{2c} 

AQD Exhibits 3 Direct Testimony 

AQD Exhibit 4 StaffProposed Floor Amendments 

6. Reservation of Rights 

This NOI is based on the Division's Petition. The Division reserves the right to call any 

person to testify and to present any exhibit in response to another NOI or public comment filed 

in this matter or to any testimony or exhibit offered at the public hearing. The Division also 

Notice of Intent Page 15 of 17 
reserves the right to call any person as a rebuttal witness and to present any exhibit in support 

thereof. 

Notice of Intent Page 16 of 1 7 

Respectfully submitted, 

Neal ~ Butt 

Environmental Health Scientist 

Air Quality Division 

Environmental Health Department 

One Civic Plaza, NW, Suite 3023 

Albuquerque, New Mexico 87102 

(505) 768-2660 
CERTIFICATION 

I hereby certify that on March 20 2013, an original and 15 copies ofthis NOI, with attached 

exhibits were delivered to the following person for filing. 

Elizabeth Jones 

Air Quality Control Board Liaison 

Air Quality Division 

Environmental Health Department 

One Civic Plaza, NW, Suite 3023 

Albuquerque, New Mexico 87103 

And that on March 20 2013, a copy of this NOI with attached exhibits was sent to the Attorney 

for the Board, Bill Grantham, at the following e-mail address: 

wggrantham@gmail.com 

Notice of Intent Page 17 of 17 

Environmental Health Scientist 

Air Quality Division 

Environmental Health Department 
Date: 

ALBUQUERQUE-BERNALILLO COUNTY 

AIR QUALITY CONTROL BOARD 

Chair, Dona Upson, M.D., City 

Ms. Kelsey Curran, City 

Robert Goldstein, M. D., County 

Mr. Jack Sullivan, City 

April10, 2013 (Wednesday) 

Ms. Jane Cudney-Biack, City 

Mr. Jens Deichmann, County 

Dr. Naomi Kistin, County 

Non-voting members: BCPC Liaison-Dr. Lenton Malry; COA/EPC 

Liaison-vacant; Secretary to the Board-Ms. Margaret Nieto, COA/AQD 

Location: 

Time: 5:30p.m. Vincent E. Griego Chambers 

General inquires regarding this agenda may be directed to Elizabeth Jones (505) 768-2601 Albuquerque-Bernalillo County 

Government Center 

(ejones@cabq.gov). One Civic Plaza NW 

For documents related to each agenda item, please go to http://www.cabq.gov/airquality/air- Albuquerque, NM 87102 

quality-control-board/events/air-quality-control-board-meeting-april-1 0-2013/ 

Hearing 

Proposal to Amend 20.11.60 NMAC, Permitting In Nonattainment Areas; 20.11.61 NMAC, 

Prevention Of Significant Deterioration; and 20.11.42 NMAC, Operating Permits. The 

Amendments to 20.11.42 NMAC Are Proposed as a Revision to the Title V Operating Permit 

Program, and the Amendments to 20.11.60 NMAC and 20.11.61 NMAC Are Proposed As a 

Revision to the New Mexico State Implementation Plan for Air Quality (SIP) - (AQCB Petition 

No. 2013-1). 

Regular Monthly Meeting Draft Agenda 

CALL TO ORDER 

Item #1 Approval of Agenda (Chair) 

Item #2 Approval of March 13, 2013 Meeting Minutes (Chair) 

PUBLIC COMMENT 

Public Comment will be limited to items unrelated to Action Items on the 

Agenda. Comments related to Action Items will be heard when the Item is heard. 

ACTION ITEMS 

Item #3 

Item #4 

Decision on Proposal to Amend 20.11.60 NMAC, Permitting In Nonattainment 

Areas; 20.11.61 NMAC, Prevention Of Significant Deterioration; and 20.11.42 

NMAC, Operating Permits. The Amendments to 20.11.42 NMAC Are Proposed 

as a Revision to the Title V Operating Permit Program, and the Amendments to 

20.11.60 NMAC and 20.11.61 NMAC Are Proposed As a Revision to the New 

Mexico State Implementation Plan for Air Quality (SIP) - (AQCB Petition No. 

2013-1, Resolution# 2013-2)- Neal Butt, EH Scientist, AQD 

Election of Chair and Vice Chair for 2013-2014 (Chair) 
Item #5 Selection of Board members to serve as non-voting advisory member and 

alternate to Mid-Region Council of Governments (MRCOG) Transportation 

Program Task Group (TPTG) and Transportation Coordinating Committee (TCC) 

(Chair) 

Item #6 Selection of Board member to serve as Liaison to the Governor's Task Force on 

Environmental Justice (Chair) 

Item #7 Acceptance ofFinal2011 Regional Sulfur Dioxide (S02) Emissions and 

Milestone Report- Neal Butt, EH Scientist, AQD 

Item #8 Request for a hearing in the matter of the Petition to Adopt a State 

Implementation Plan (SIP) for N02 to Address Sections 110(a)(l) and (2) of the 

Federal Clean Air Act (CAA), 42 U.S.C. § 7410(a)(1) and (2), hereafter referred 

to as the "N02 Infrastructure SIP" (AQCB Petition No. 2013-3)- Neal Butt, EH 

Scientist, AQD 

Item #9 Request for a hearing in the matter of the Petition to Amend the State Boards 

State Implementation Plan (SIP) to Satisfy the Requirements of the Clean Air Act 

Section 128(a)- State Boards [§7428, U.S.C.A.]; hereafter referred to as the "State 

Boards SIP Revision" (AQCB Petition No. 2013-4)- Neal Butt, EH Scientist, 

AQD 

REPORTS Division Report. Staff available for questions. 

OTHER BUSINESS 

Item #10 Notification of Order Dismissing the Hearing on the Merits Regarding the Denial 

of a Wood Burning Exemption, MichaelS. Fulp, Petitioner (AQCB Petition No. 

2013-2)- Bill Grantham, Attorney for the AQCB (held over from March 13, 

2013 AQCB meeting agenda) 

ADJOURNMENT 

NEXT SCHEDULED BOARD MEETING: May 8, 2013 5:30p.m. 

Members of the public who wish to address the Board, may do so by signing up with the Board Clerk and indicating 

either the agenda item they intend to address, or whether they wish to make a general public comment. Sign up 

must occur prior to the Board's consideration of each item. Each person will be given up to two minutes to speak. 

**Notice to persons with disabilities: If you have a disability and require special assistance to participate in this 

process, please ca/1311 (Voice) and special assistance will be made available to you to receive any public meeting 

documents, including agendas and minutes. TTY users may request special assistance by calling 1-800-659-

8331. "'"' 

2 
f AQD EXHIBIT 

i 3 

I 

[Direct Testimony for Petition to Amend 20.11.60 NMAC, Permitting In 

Nonattainment Areas; 20.11.61 NMAC, Prevention Of Significant Deterioration; and 

20.11.42 NMAC, Operating Permits. The Amendments to 20.11.42 NMAC Are 

Proposed As a Revision to the Title V Operating Permit Program, and the 

Amendments to 20.11.60 NMAC and 20.11.61 NMAC Are Proposed As a Revision 

to the New Mexico State Implementation Plan for Air Quality (SIP)] 

SLIDE 1 

Thank you Chairman I Madam Chair _____ , and members of the Board. My 

name is Neal Butt. I am an Environmental Health Scientist with the Air Quality 

Division, Control Strategies Section. I am here to respectfully request a hearing before 

the Air Board, 

IN THE MATTER OF THE PETITION TO AMEND 20.11.60 NMAC, 

PERMIITING IN NONAITAINMENT AREAS; 20.11.61 NMAC, PREVENTION 

OF SIGNIFICANT DETER/ORATION; AND 20.11.42 NMAC, OPERATING 

PERMITS. THE AMENDMENTS TO 20.11.42 NMAC ARE PROPOSED AS A 

REVISION TO THE TITLE V OPERATING PERMIT PROGRAM, AND THE 

AMENDMENTS TO 20.11.60 NMAC AND 20.11.61 NMAC ARE PROPOSED AS 

A REVISION TO THE NEW MEXICO STATE IMPLEMENTATION PLAN FOR 

AIR QUALITY (SIP). 

AQCB Petition No. 2013-1 

SLIDE2 

1 
The provisions governing state implementation of the Nonattaimnent New Source 

Review (NNSR) permit program are contained in the CFR, Title 40, Protection of 

Environment, Part 51, Requirements for Submittal of Implementation Plans, Subpart I, 

Review of New Sources and Modifications, Section 165, Permit Requirements. 

Albuquerque- Bernalillo County's implementation of this program is governed by 

20.11.60 NMAC, Permitting In Nonattainment Areas. 

The provisions governing state implementation of the Prevention of Signification 

Deterioration (PSD) permit program are contained in the CFR Title 40, Protection of 

Environment, Part 51, Requirements for Submittal of Implementation Plans, Subpart I, 

Review of New Sources and Modifications, Section 166, Prevention of Significant 

Deterioration of Air Quality. The provisions governing direct federal implementation of 

PSD are found at Title 40, Protection of Environment, Part 52, Approval and 

Promulgation of Implementation Plans, Subpart A, General Provisions, Section 21, 

Prevention of Significant Deterioration of Air Quality. Albuquerque - Bernalillo 

County's implementation of the PSD program is governed by 20.11.61 NMAC, 

Prevention of Significant Deterioration. 

The provisions governing major source operating permits pursuant to Title V of 

the Clean Air Act (CAA) are contained in 40 CFR Part 70, State Operating Permit 

Programs, and, in Albuquerque- Bernalillo County, at 20.11.42 NMAC, Operating 

Permits. 

2 
SLIDE3 

On May 16,2008, the U.S. Environmental Protection Agency (EPA) promulgated 

"Implementation of the New Source Review (NSR) Program for Particulate Matter Less 

Than 2.5 Micrometers (PM2.s}", effective 7/15/08 [Federal Register Vol. 73, No. 96, 

28321-50]. These amendments affect 40 CFR 51.165, and have already been 

incorporated into the currently effective version of 20.11.60 NMAC. These amendments 

also affect 40 CFR 51.166 and 52.21, and all but one amendment has been incorporated 

into the currently effective version of 20.11.61 NMAC. This remaining amendment adds 

an additional stationary source exemption, and is cited as 20.11.61.18.0.(3) NMAC in the 

proposed draft. 

SLIDE4 

On October 20, 2010, the EPA promulgated "PSD for Particulate Matter Less 

Than 2.5 Micrometers (PM2.s) - Increments, Significant Impact Levels (SILs) and 

Significant Monitoring Concentration (SMC)", effective 12/20/10 [Federal Register Vol. 

75, No. 202, 64864-907]. These amendments affect 40 CFR 51.165, and have been 

incorporated into the proposed draft of 20.11.60 NMAC. These amendments also affect 

40 CFR 51.166 and 52.21 and have been incorporated into the proposed draft of 20.11.61 

NMAC. One exception is for an amendment that would have been inserted at 

20.11.61.15.8.(2) NMAC, re: "SILs" [see 40 CFR 51.166.{k)(2) & 52.21{k)(2)], but 

which EPA has conceded to be vacated and remanded to EPA, in response to Sierra Club 

v. EPA; another exception is the proposed SMC for PM2.s at 20.11.61.28 NMAC, which 

was also vacated by the US Court of Appeals [Case No. 10-1413, decided January 22, 

3 
2013]. Incorporation of changes to the federal PSD rule into the local PSD rule are 

required not only to keep the local PSD program up to date, but is also required for the 

Infrastructure SIP (''i-SIP") for the 2010 Nitrogen Dioxide (N(h) NAAQS because EPA 

requires that any i-SIP submittal should address any new or revised PSD program 

requirements. The N02 i-SIP is anticipated to be submitted to EPA in June, 2013. 

SLIDES 

On March 30, 2011, the EPA promulgated "PSD and NNSR: Reconsideration of 

Inclusion of Fugitive Emissions; Interim Rule; Stay and Revisions", effective 3/30/11 

[Federal Register Vol. 76, No. 61, 17548-56]. These amendments affect 40 CFR 51.165, 

51.166 and 52.21, and have been incorporated into the proposed drafts of20.11.60 

NMAC, and 20.11.61 NMAC. 

SLIDE6 

On July 20, 2011, EPA promulgated "Deferral for C02 Emissions From 

Bioenergy and Other Biogenic Sources Under the PSD and Title V Programs", effective 

7/20/11. "State, local, and tribal permitting authorities may adopt the deferral at their 

option but the deferral is effective upon publication for the PSD and Title V permit 

programs that are implemented by EPA." [Federal Register Vol. 76, No. 139,43490-

43508]. These amendments affect 40 CFR 51.166 and 52.21, and have been incorporated 

into the proposed draft of 20.11.61 NMAC. They also affect 40 CFR 70, State Operating 

4 
Permit Programs, at 70.2, Definitions, and have been incorporated into the proposed draft 

of20.11.42 NMAC, Operating Permits, at 20.11.42.7.11.(2) NMAC. 

Adoption of the biomass deferral provisions will allow the Division to avoid the need to 

determine net carbon cycle impacts for bio-energy projects until EPA has adopted a 

consistent and practical framework for such calculations, and prevent the Division from 

spending valuable time and resources evaluating sources that may have de minimis, 

neutral or positive impact on net C02 levels in the atmosphere. 

SLIDE7 

On July 12, 2012, EPA promulgated "Prevention of Significant Deterioration 

and Title V Greenhouse Gas Tailoring Rule Step 3 and GHG Plantwide Applicability 

Limits", effective 8/13/12 [Federal Register Vol. 77, No. 134, 41051-75]. These 

amendments affect 40 CFR 52.21, and have been incorporated into the proposed draft of 

20.11.61 NMAC. 

Adoption ofthe PAL amendments for GHGs would allow the Division to provide greater 

operational flexibility to permitted sources by issuing GHG PALs to GHG-only sources 

without requiring the sources to become a major source. GHG-only sources could obtain 

a GHG PAL and remain a minor source as long as their GHG emissions remain below the 

PAL. 

5 
SLIDES 

On October 25, 2012, EPA promulgated "Implementation of the NSR Program 

for Particulate Matter Less Than 2.5 Micrometers (PM 2.s): Amendment to the Definition 

of"Regulated NSR Pollutant" Concerning Condensable Particulate Matter'', effective 

12/24/12 [Federal Register Vol. 77, No. 207, 65107-19]. These amendments affect 

51.166 and 52.21, and have been incorporated into the proposed draft of 20.11.61 NMAC 

SLIDE9 

This hearing has been legally noticed as shown by AQD Exhibits 2a, 2b, and 2c. There 

have not been any negative comments received regarding this proposal, only a verbal ''No 

comment" received by EPA. Therefore, the Environmental Health Department of the 

City of Albuquerque, by and through the Air Quality Division, respectfully asks the 

Albuquerque-Bernalillo County Air Quality Control Board to adopt amendments to 

20.11.60 NMAC, Permitting In Nonattainment Areas shown as AQD Exhibit# 1 a; 

20.11.61 NMAC, Prevention OfSignificant Deterioration, shown as AQD Exhibit #1b; 

and 20.11.42 NMAC, Operating Permits, shown as AQD Exhibit #1c; and submit the 

amended 20.11.42 NMAC to EPA as a proposed revision to the Title V Operating Permit 

Program, and the amended 20.11.60 NMAC and 20.11.61 NMAC as proposed revisions 

to the New Mexico State Implementation Plan for Air Quality (SIP). 

SLIDE 10 

Questions 

6 
That concludes my testimony, and I request that exhibits 1, 1 a, 1 b, 1 c, 2a, 2b, 2c, 3 and 4 

be moved into the record {"so moved"}, and I stand for questions 

7 
ALBUQUERQUE-BERNALILLO COUNTY 

AIR QUALITY CONTROL BOARD 

MINUTES- Apri110, 2013 

Regular Meeting 

Vincent E. Griego chambers 

Albuquerque--Bernalillo County Government Center 

One Civic Plaza NW, Albuquerque, NM 87102 

AQCB MEMBERS PRESENT 

Dr. Dona Upson (City), Chair 

Ms. Kelsey Curran (City), Vice Chair 

Ms. Jane Cudney-Black (City) 

Mr. Jens Deichmann (County) 

Dr. Lenton Malry (BCPC Liaison) 

Mr. Jack Sullivan (City) 

AQCB MEMBERS ABSENT 

Dr. Naomi Kistin (County) 

Robert A. Goldstein, M.D. (County) 

STAFF PRESENT 

Mr. Neal Butt, EH Scientist, AQD 

Mr. Bill Grantham, Air Board Attorney 

Ms. Liz Jones, AQCB Liaison 

Ms. Adelia Kearny, Deputy City Attorney 

Ms. Mary Lou Leonard, Director, EHD 

Mr. Fabian Macias, Air Quality Official 

Mr. Danny Nevarez, EH Technical 

Program Manager II, EHD 

Ms. Margaret Nieto, AQCB Secretary, 

EH Supervisor 

Mr. Dario Rocha, EH Supervisor, AQD 

Mr. Isreal Tavarez, EH Manager, Permitting 

Mr. Bill Westmoreland, Deputy Director, EHD 

VISITORS PRESENT. 

Mr. Jonas Berge 

Mr. Andy Carrasco 

Dr. MargaretMenache 

Mr. Pat Toledo 

Mr. Doug Vancil 

Ms. Julie Vancil, Julie's Hair Studio 

Hearing 

Proposal to Amend 20.11.60 NMAC, Permitting In Nonattainment AretiS; 20.11.61 NMAC, Prevention Of 

Significant Deterioration; and 20.11.42 NMAC, Operating Permits. The Amendments to 20.11.42 NMAC 

Are Proposed as a Revision to the Title V Operating Permit Program, and the Amendments to 20.11.60 

NMAC and 20.11.61 NMAC Are Proposed As a Revision to the New Mexico State Implementation Plan 

for Air QuaHty (SIP)- (AQCB Petition No. 2013-1). 

Hearing Officer Bill Grantham opened the hearing at 5:40pm with Air Quality Control Board (Board) members 

Dr. Dona Upson, Ms. Kelsey Curran, Ms. Jane Cudney-Black, Mr. Jens Deichmann, Dr. Lenton Malry and Mr. 

Jack Sullivan present. Neal Butt, Environmental Health Scientist, AQD provided testimony. Isreal Tavarez, 

Permitting Section Manager, Dario Rocha, Permitting Technical Analysis Supervisor and Neal Butt answered 

Page 1 
questions posed by Hearing Officer Grantham. There were no public comments. After hearing testimony and 

discussion, Hearing Officer Grantham closed the hearing at 6: 10 pm. 

Meeting Minutes 

CALL TO ORDER 

ltem#1 

ltem#2 

The meeting was called to order by Chair Dr. Dona Upson at 6: 10 pm on April 

10,2013 with six Board members present: Chair Dr. Dona Upson, Ms. Jane 

Cudney-Black, Ms. Kelsey Curran, Mr. Jens Deichmann, Dr. Lenton Malry and 

Mr. Jack Sullivan. 

The Environmental Health Department Director, Ms. Mary Lou Leonard, 

welcomed the new members Ms. Cudney-Black and Mr. Deichmann to the Board. 

Approval of Agenda (Chair) 

A motion to approve the agenda was made by Member Curran, seconded by Member 

Sullivan and approved by a unanimous vote of 5-0. 

Approval of March 13, 2013 Meeting Minutes (Chair) 

A motion to approve the March 13,2013 minutes was made by Member Deichmann, 

seconded by member Curran and approved by a unanimous vote of 5-0. 

PUBLIC COMMENT 

Public comment was made regarding Smith's Food & Drug Centers, Inc.'s Hearing on 

the Merits Regarding Authority to Construct Permit #2037-M1 by Mr. Pat Toledo, Mr. 

Andy Carrasco and Ms. Julie Vancil. 

ACTION ITEMS 

Item#3 Decision on Proposal to Amend 20.11.60 NMAC, Permitting in Nonattainment Areas; 

20.11.61 NMAC, Prevention of Significant Deterioration; and 20.11.42 NMAC, 

Operating Permits. The Amendments to 20.11.472 NMAC are proposed as a 

Revision to the Title V Operating Permit Program, and the Amendments to 20.11.60 

NMAC and 20.11.61 NMAC Are Proposed As a Revision to the New Mexico State 

Implementation Plan for Air Quality (SIP)- (AQCB Petition No. 2013-1, Resolution 

# 2013-2)- Neal Butt, EH Scientists, AQD 

Member Curran read Resolution 2013-2 into the record with the following amendments: 

1. On page 8, line 23 of exhibit #1 b PRO 20.11.61 NMAC, Prevention of Significant 

Deterioration, insert the following after "Clean Unit" and delete"{" and add: "as 

defined in 40 CFR 51.166 (b)(3)(iii)(c) & FR Vol76 No. 61, 3/30/11, p. 14554." 

2. On page 2 line 11 ofReso1ution 2013-2 add an "s" to "Exhibit" and insert "and 4a" 

after "4". 

Page2 
Item#4 

Item#S 

Item# 6 

Item#7 

Item# 8 

A motion to adopt amended Resolution 2013-2 was made by Member Sullivan, seconded 

by Member Curran and passed with a unanimous vote of 5-0. 

The hearing and decision was recorded and transcribed by Court Reporter Peggy Jo 

Gonzales with Bean & Associates. The transcript is available for review during business 

hours in the office of the Board's Hearing Clerk located at One Civic Plaza NW, Suite 

3023, Albuquerque NM 87103. 

Election of Chair and Vice Chair for 2013-2014 (Chair} 

Member Deichmann made a motion to re-elect Dr. Upson to Chair. The motion was 

seconded by Member Curran and approved by a unanimous vote of 5-0. 

Member Sullivan made a motion to elect Member Curran to Vice Chair. The motion was 

seconded by Member Deichmann and approved by a unanimous vote of 5-0. 

Selection of Board members to serve as non-voting advisory member and alternate 

to Mid-Region council of Governments (MRCOG} Transportation Program Task 

Group (TPTG} and Transportation Coordinating committee (TCC} (Chair} 

Member Sullivan made a motion to elect himself as the non-voting advisory member to 

MRCOG TPTG and TCC. The motion was seconded by Member Deichmann and 

approved by a unanimous vote of 5-0. Member Curran made a motion to elect herself as 

alternate non-voting advisory member to MRCOG TPTG and TCC. The motion was 

seconded by Member Deichmann and approved by a unanimous vote of 5-0. 

Selection of Board member to serve as Liaison to the Governor's Task Force on 

Environmental Justice (Chair} 

Chair Dr. Upson made a motion to elect Member Kistin to serve as the Liaison to the 

governor's Task Force on Environmental Justice. The Motion was seconded by Member 

Deichmann and approved by a unanimous vote of 5-0. 

Acceptance of Final2011 Regional Sulfur Dioxide (S02} Emissions Milestone Report 

-Neal Butt, EH Scientist, AQD 

Mr. Neal Butt presented the report to the Board. A Motion to accept the report was made 

by Member Deichmann, seconded by Member Sullivan and passed unanimously with a 

vote of 5-0. 

Request for a hearing in the matter of the petition to Adopt a State Implementation 

Plan (SIP} for N02 to Address Sections llO(a}(l} and (2} ofthe Federal Clean Air 

Act (CAA}, 42 U.S.C. § 7410(a}(l} and (2}, hereafter referred to as the "N02 

Infrastructure SIP" (AQCB Petition No. 2013-3}- Neal Butt, EH Scientist, AQD 

Mr. Neal Butt presented the Division's request for a hearing, which included a request for 

a hearing officer and a court reporter. A motion to grant the request for a hearing on the 

Page3 
Item# 9 

petition was made by Member Deichmann, seconded by Member Sullivan and approved 

by a unanimous vote of 5-0. 

Request for a hearing in the matter of the petition to Amend the State Boards State 

Implementation Plan (SIP) to Satisfy the Requirements of the Clean Air Act Section 

128(a)- State Boards (§7428, U.S.C.A.); hereafter referred to as the "State Boards 

SIP Revision" (AQCB Petition No. 2013-4)- Neal Butt, EH Scientist, AQD 

Mr. Neal Butt presented the Division's request for a hearing, which included a request for 

a hearing officer and a court reporter. A motion to grant the request for a hearing on the 

petition was made by Member Curran, seconded by Dr. Upson and approved by a 

unanimous vote of 5-0. 

REPORTS Division Report 

Dr. Upson stated that this will be Deputy Director Mr. Bill Westmoreland's last Board 

meeting before his retirement at the end of April. 

OTHER BUSINESS 

Item# 10 Notification of Order Dismissing the Hearing on the Merits Regarding the Denial 

of a Wood Burning Exemption, MichaelS. Fulp, Petitioner (AQCB Petition No. 

2013-2)- Bill Grantham, Attorney for the AQCB 

Mr. Grantham presented the notification of the Order Dismissing the Hearing on the 

Merits Regarding the Denial of a Wood burning Exemption to the Board, stating that this 

was a matter of housekeeping. 

ADJOURNMENT 

Chair, Dr. Dona Upson, adjourned the meeting at 7:02pm. 

NEXT SCHEDULED BOARD MEETING: 

• May 8, 2013 5:30pm. 

SUBMITTED: 

Nieto date 

Board Sec /Env. Health Supervisor, Control Strategies Section 

Air Quality Div ., Environmental Health Department 

Page4 

READ AND APPROVED: 

11~~'- f fao~D c;(fio Dona Upson M.D. v \ 

Chair 

Albuquerque- Bernalillo County Air Quality Control Board 
SUSANA MARTINEZ 

Governor 

JOHN A. SANCHEZ 

Lieutenant Governor 

July 26, 2013 

Mr. Ron Curry 

Regional Administrator 

NEW MEXICO 

ENVIRONMENT DEPARTMENT 

Office of the Secretary 

Harold Runnels Building 

1190 Saint Francis Drive (87505) 

P.O. Box 5469, Santa Fe, NM 87502 

Phone: (505) 827-2855 Fax: (505) 827-2836 

www.nmenv.state.nm.us 

U.S. Environmental Protection Agency, Region VI (6-RA) 

1445 Ross Avenue, Suite 1200 

Dallas, TX 75202-2733 

RYAN FLYNN 

Cabinet Secretary 

BUTCH TON GATE 

Deputy Secretary 

Subject: Proposed revision to the New Mexico State Implementation Plan for Air Quality 

(SIP) through the incorporation of an amended 20.11.60 NMAC, Pmnitti1zg in 

Nonattainment Areas and 20.11.61 NMAC, Prevention of Significant Deterioration, and 

20.11.42, Operating Permit.r, as an update to the Tide V Program 

Dear Mr. Curry: 

I am writing on behalf of Governor Susana Martinez to request approval of the attached 

documentation which will serve as the basis for a revision to the New Mexico SIP. Specifically, I am 

submitting documentation for the amended regulations, 20.11.60 NMAC, Permitting in Nonattainment 

Areas and 20.11.61 NMAC, Prevention of Significant Deterioration. In addition, I am requesting approval 

of an update to the Title V Program through the incorporation of an amended 20.11.42 NMAC, 

Operating Permits. All three of these rules apply exclusively to Bernalillo County, New Mexico. 

The Albuquerque - Bernalillo County Air Quality Control Board (Air Board) adopted these 

amendments at their regular monthly meeting on April 10,2013, following a public hearing held the 

same evening. The public hearing was held in accordance with the public notice, State laws and 

constitution, and public hearing requirements of 40 CFR 51.102. The amended regulations were 

ftled with the NM State Records Center on April12, 2013, and became effective locally on May 13, 

2013. To facilitate your review, two hard copies of this SIP submittal, along with three exact 

duplicates in electronic form are enclosed. I believe that the submitted materials provide adequate 

documentation to support the requested SIP revision. 

Protecting our Environment, Preserving the Enchantment 
-2-

To facilitate your review and processing, the following materials are enclosed: 

1) SIP Completeness Checklist pursuant to 40 CFR 51; 

2) Hearing record, including transcript and exhibits; 

3) Comments and responses; 

4) The proposed SIP revision for 20.11.60 NMAC, 20.11.61 Nl\1AC and Title V 

Program update for 20.11.42 Nl\1AC adopted by the Air Board; and 

5) Other supporting documentation. 

Your favorable consideration of this request is appreciated. If you have any questions, please 

contact Mary Lou Leonard, Director of the Albuquerque Environmental Health Department 

(EHD), at (505) 768-2631. 

Ryan Fl 

Cabinet Secretary 

NM Environment Department 

cc: Honorable Susana Martinez, Governor, State of New Mexico 

Richard Goodyear, Acting Chief, Air Quality Bureau, NMED 

Mary Rose, Acting Manager, Environmental Protection Division, NMED 

Dr. Dona Upson, Chair, Albuquerque - Bernalillo County Air Quality Control Board 

Mary Lou Leonard, Director, Albuquerque Environmental Health Department 

Danny Nevarez, Acting Deputy Director, Albuquerque EHD 

Margaret Nieto, Control Strategies Section Supervisor, Air Quality Division, EHD 

Enclosures 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 1 - 

722 F.3d 401 

CENTER FOR BIOLOGICAL DIVERSITY, et al., Petitioners 

v. 

ENVIRONMENTAL PROTECTION AGENCY and Lisa Perez Jackson, Respondents 

American Forest & Paper Association, Inc., et al., Intervenors. 

Nos. 11–1101, 11–1285, 11–1328, 11–1336. 

United States Court of Appeals, 

District of Columbia Circuit. 

Argued April 8, 2013. 

Decided July 12, 2013. 

 [722 F.3d 403] 

On Petitions for Review of Administrative 

Action of the Environmental Protection Agency. 

Ann Brewster Weeks argued the cause for 

petitioners. With her on the briefs were Lisa J. 

Zak, Frank Rambo, Morgan Butler, Kevin P. 

Bundy, Vera P. Pardee, Brendan R. Cummings, 

David D. Doniger, Meleah A. Geertsma, and 

Nathaniel S.W. Lawrence. Jonathan F. Lewis 

entered an appearance. 

Perry M. Rosen, Attorney, U.S. Department of 

Justice, argued the cause for respondents. With 

him on the brief was Scott Jordan, Attorney, 

U.S. Environmental Protection Agency. 

Roger R. Martella Jr. argued the cause for 

respondent-intervenors. With him on the brief 

were Timothy K. Webster, Lisa E. Jones, Joel F. 

Visser, Charles H. Knauss, Shannon S. Broome, 

Norman W. Fichthorn, and Allison D. Wood. 

William R. Murray Jr. entered an appearance. 

D. Cameron Prell, Neal Cabral, and Lisa Sharp 

were on the brief for amicus curiae National 

Association of Clean Water Agencies in support 

of respondents. 

Before: HENDERSON, TATEL, and 

KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge 

TATEL.

Concurring opinion filed by Circuit Judge 

KAVANAUGH.

Dissenting opinion filed by Circuit Judge 

HENDERSON.

 [722 F.3d 404] 

TATEL, Circuit Judge:

 As part of its ongoing effort to limit the 

emission of greenhouse gases, the 

Environmental Protection Agency issued a rule 

deferring regulation of ―biogenic‖ carbon 

dioxide—non-fossil-fuel carbon dioxide sources 

such as ethanol—for three years. Citing 

scientific uncertainty over how to account for 

biogenic carbon dioxide's unique role in the 

carbon cycle, EPA justified this ―Deferral Rule‖

on the basis of the de minimis, one-step-at-atime, and administrative necessity doctrines. 

Several environmental groups now petition for 

review, arguing that EPA's invocation of these 

doctrines was arbitrary and capricious. For the 

reasons set forth below, we vacate the Deferral 

Rule. 

I.

 Under the Clean Air Act, if EPA 

determines that an ―air pollutant ... may 

reasonably be anticipated to endanger public 

health or welfare,‖ 42 U.S.C. § 7521(a)(1), it 

must regulate that air pollutant under the 

Prevention of Significant Deterioration of Air 

Quality (PSD) and Title V permitting programs. 

See Coalition for Responsible Regulation, Inc. v. 

EPA, 684 F.3d 102, 132–44 (D.C.Cir.2012) (per 

curiam). The PSD program, which applies to 

areas of the country that are classified as in 

―attainment‖ or ―unclassifiable‖ for any national 

AQP Exhibit 9
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 2 - 

ambient air quality standard, 42 U.S.C. §§ 

7407(d)(1)(A), 7471, requires certain specified 

―major emitting facilit[ies],‖ such as iron and 

steel mills, to obtain state-issued construction 

permits if they have the potential to emit over 

100 tons per year (tpy) of ―any air pollutant,‖

and all other sources to obtain such permits if 

they have the potential to emit over 250 tpy, 

id.§§ 7475, 7479(1). Under the PSD program, 

sources need permits before starting a 

construction or modification project. See id.§§ 

7411(a)(4), 7475, 7479(2)(C). To obtain a PSD 

permit, covered sources must install the ―best 

available control technology‖ (BACT) for all 

regulated air pollutants—even for air pollutants 

whose emissions levels are insufficient to trigger 

the PSD permitting requirement. Id.§ 

7475(a)(4). In other words, if a source emits two 

regulated air pollutants—say sulfur dioxide and 

particulate matter—but triggers the PSD 

permitting requirement only because it emits 

500 tpy of sulfur dioxide, it must install BACT 

for both. The Title V program requires 

operational permits for stationary sources that 

have the potential to emit at least 100 tpy of any 

regulated air pollutant. See id. §§ 7661–7661f. 

 In response to the Supreme Court's decision 

in Massachusetts v. EPA, 549 U.S. 497, 127 

S.Ct. 1438, 167 L.Ed.2d 248 (2007), EPA 

published an Endangerment Finding for 

greenhouse gases—a ―well-mixed‖ and 

―aggregate‖ group of six gases, including carbon 

dioxide (CO2). Endangerment and Cause or 

Contribute Findings for Greenhouse Gases 

Under Section 202(a) of the Clean Air Act

(―Endangerment Finding‖), 74 Fed.Reg. 66,496, 

66,499 (Dec. 15, 2009). Based on that finding, 

EPA issued a ―cascading series of greenhouse 

gas-related rules and regulations.‖ Coalition for 

Responsible Regulation, 684 F.3d at 114. 

Partnering with the National Highway Traffic 

Safety Administration, EPA first promulgated 

the Tailpipe Rule, which established motorvehicle emissions standards for greenhouse 

gases. See Light–Duty Vehicle Greenhouse Gas 

Emission Standards and Corporate Average 

Fuel Economy Standards; Final Rule, 75 

Fed.Reg. 25,324 (May 7, 2010). Because the 

―Tailpipe Rule automatically triggered 

regulation of stationary greenhouse gas emitters 

under‖ the PSD and Title V permitting 

programs, EPA then issued two rules ―phasing 

in stationary 

 [722 F.3d 405] 

source greenhouse gas regulation.‖ Coalition for 

Responsible Regulation, 684 F.3d at 115. In the 

Timing Rule, EPA concluded that major 

stationary emitters of greenhouse gases became 

subject to the PSD and Title V permitting 

requirements on January 2, 2011—the same date 

greenhouse gases were subjected to regulation 

under the Tailpipe Rule. See Reconsideration of 

Interpretation of Regulations That Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs, 75 Fed.Reg. 17,004, 17,007 (Apr. 2, 

2010). And in the Tailoring Rule, EPA, 

recognizing that literal application of the PSD 

and Title V emissions thresholds would cover 

millions of sources, ―tailored‖ the statutory 

thresholds to ―reliev[e] [the] overwhelming 

permitting burden[ ] that would ... fall on 

permitting authorities and sources.‖ Prevention 

of Significant Deterioration and Title V 

Greenhouse Gas Tailoring Rule (―Tailoring 

Rule‖), 75 Fed.Reg. 31,514, 31,516 (June 3, 

2010). The Tailoring Rule staggers the 

applicability of the PSD and Title V permitting 

programs, ―starting with the largest [greenhouse 

gas] emitters.‖ Id. at 31,514. Under Step One of 

the Tailoring Rule, which became effective 

January 2, 2011, the PSD and Title V permitting 

programs apply only to ―  ̳anyway‘ PSD [and 

Title V] sources, that is, sources that are subject 

to PSD [and Title V] anyway due to their 

emissions of conventional pollutants,‖ i.e., nongreenhouse-gas pollutants. Id. at 31,567. Under 

Step Two of the Tailoring Rule, which became 

effective six months later, the PSD and Title V 

permitting programs apply to sources with the 

potential to emit specified amounts of 

greenhouse gases. See id. at 31,516. In Coalition 

for Responsible Regulation, Inc. v. EPA, this 

court upheld the Endangerment Finding and 

Tailpipe Rule as neither arbitrary nor capricious, 

concluded that the PSD and Title V permitting 

programs were unambiguously triggered when 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 3 - 

EPA issued the Tailpipe Rule, and rejected 

challenges to the Timing and Tailoring Rules on 

standing grounds. See Coalition for Responsible 

Regulation, 684 F.3d at 113–14. 

 This case involves biogenic carbon dioxide 

emissions, which EPA defines as carbon dioxide 

emissions ―directly resulting from the 

combustion or decomposition of biologicallybased materials other than fossil fuels and 

mineral sources of carbon.‖ Deferral for CO2 

Emissions from Bioenergy and Other Biogenic 

Sources Under the Prevention of Significant 

Deterioration (PSD) and Title V Programs

(―Deferral Rule‖), 76 Fed.Reg. 43,490, 43,493 

(July 20, 2011). Biogenic carbon dioxide 

emissions are generated from, among other 

things, ―the biological decomposition of waste in 

landfills, wastewater treatment[,] or manure 

management processes,‖ ―fermentation during 

ethanol production,‖ and the ―combustion of 

biological material, including all types of wood 

and wood waste, forest residue, and agricultural 

material.‖ Id. To use a familiar example, power 

plants running on coal emit fossil-fuel carbon 

dioxide whereas power plants burning 

feedstocks emit biogenic carbon dioxide. 

 Unlike fossil fuels that emit greenhouse 

gases only through human-induced combustion, 

biogenic sources emit carbon dioxide via both 

natural and anthropogenic processes. A forest 

fire, for example, will emit biogenic carbon 

dioxide regardless of whether it was sparked by 

lightning or as part of a clear-cutting operation. 

Dead trees emit carbon dioxide as part of the 

decomposition process. See Deferral for CO2 

Emissions From Bioenergy and Other Biogenic 

Sources Under the Prevention of Significant 

Deterioration (PSD) and Title V Programs: 

Proposed Rule (―Proposed Deferral Rule‖), 76 

Fed.Reg. 15,249, 15,252–54 (Mar. 21, 2011). 

 [722 F.3d 406] 

 Significantly for the issue before us, 

biogenic carbon dioxide has a ―unique role and 

impact ... in the carbon cycle.‖ Deferral Rule, 76 

Fed.Reg. at 43,496. ―Through relatively rapid 

photosynthesis, plants absorb CO2 from the 

atmosphere and add it to their biomass, which 

contains roughly 50% carbon by weight, through 

a process called sequestration.‖ Proposed 

Deferral Rule, 76 Fed.Reg. at 15,252. Carbon 

dioxide emitted by fossil-fuel combustion is 

reabsorbed over millennia, leading to a long 

carbon ―debt‖ period. By contrast, carbon 

dioxide released by biogenic sources will be 

sequestered when new plants are grown. The 

extent to which biogenic sources can serve as a 

carbon ―sink‖ will depend on the type of source 

and its life cycle. See id. at 15,252–54. Given 

biogenic carbon dioxide's role in the carbon 

cycle, many state and federal programs treat 

biofuels as ―renewable resources and promote 

bioenergy projects when they are a way to 

address climate change.‖ Deferral Rule, 76 

Fed.Reg. at 43,492. But to be clear, once carbon 

dioxide is released into the atmosphere, ―it is not 

possible to distinguish between the radiative 

forcing associated with a molecule of CO2 

originating from a biogenic source and one 

originating from the combustion of fossil fuel.‖

Proposed Deferral Rule, 76 Fed.Reg. at 15,254. 

In layman's terms, the atmosphere makes no 

distinction between carbon dioxide emitted by 

biogenic and fossil-fuel sources. 

 In the Tailoring Rule, EPA acknowledged 

that ―biomass or biogenic fuels and feedstocks 

could play [a role] in reducing anthropogenic 

[greenhouse gas] emissions.‖ Tailoring Rule, 75 

Fed.Reg. at 31,590–91. Yet responding to 

numerous requests that the Tailoring Rule 

exempt biogenic carbon dioxide emissions, EPA 

stated that because it ―ha[d] not analyzed the 

administrative burden of permitting projects that 

specifically involve biogenic CO2 emissions,‖ it 

would not take a ―final position‖ on whether an 

exemption or ―different treatment of biomass 

combustion‖ was warranted. Id. at 31,591. As a 

result, the Timing and Tailoring Rules require 

biogenic carbon dioxide sources to obtain PSD 

and Title V permits. 

 Shortly after promulgating the Tailoring 

Rule, EPA issued a Call for Information seeking 

technical and scientific information to 

―evaluat[e] different accounting approaches‖ for 

measuring biogenic carbon dioxide emissions. 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 4 - 

Call for Information: Information on 

Greenhouse Gas Emissions Associated with 

Bioenergy an Other Biogenic Sources, 75 

Fed.Reg. 41,173, 41,174 (July 15, 2010). 

Specifically, EPA sought information about how 

to treat biogenic carbon dioxide sources 

differently for purposes of measuring the 

emissions that trigger the PSD and Title V 

permitting programs. For example, EPA 

requested comments on how to ―determin[e] the 

net impact on the atmosphere of CO2 emissions‖

and the ―appropriate spatial/geographic scale for 

conducting this determination.‖ Id. at 41,176. 

Then in March 2011, EPA, citing its ongoing 

efforts to understand the unique characteristics 

of biogenic carbon dioxide, issued a notice of 

proposed rulemaking seeking comment on 

whether it should defer regulation of these 

sources for a three-year period. SeeProposed 

Deferral Rule, 76 Fed.Reg. at 15,251. 

Simultaneously, it published a guidance 

document for determining BACT for biogenic 

carbon dioxide emissions from ―anyway‖

sources that were regulated under the PSD 

permitting program at Step One of the Tailoring 

Rule. See Office of Air and Radiation, U.S. 

EPA, Guidance for Determining Best Available 

Control Technology for Reducing Carbon 

Dioxide Emissions from Bioenergy Production 

(Mar.2011). 

 [722 F.3d 407] 

 Based on comments and studies received 

during the notice-and-comment period, and 

following up on the Call for Information, EPA 

issued a rule—the one challenged here—

postponing regulation of biogenic carbon 

dioxide sources for three years. In support of this 

so-called Deferral Rule, EPA repeatedly 

emphasized that ―the issue of accounting for the 

net atmospheric impact of biogenic CO2 

emissions is complex enough that further 

consideration ... is warranted.‖ Deferral Rule, 76 

Fed.Reg. at 43,492. It explained: 

 The information collected to this point 

underscores the complexity and uncertainty 

associated with accounting for biogenic 

emissions of CO2 and indicates that at present 

attempting to determine the net carbon cycle 

impact of particular facilities combusting 

particular types of biomass feedstocks would 

require extensive analysis and would therefore 

entail extensive workload requirements by many 

of the permitting authorities. In contrast to other 

sources of [greenhouse gas] emissions, these 

uncertainties and complexities are exacerbated 

because of the unique role and impact biogenic 

sources of CO2 have in the carbon cycle. 

Further, methodologies are not sufficiently 

developed to assure that various permitting 

authorities would be able to perform the 

necessary calculations reasonably and 

consistently to determine the net atmospheric 

impact in many, if not all, instances. 

Id. at 43,496. To dispel these uncertainties, EPA 

announced that ―[d]uring the three-year deferral 

period‖ it would ―conduct a detailed 

examination of the science associated with 

biogenic CO2 emissions from stationary 

sources.‖ Id. at 43,492. EPA justified the 

Deferral Rule by invoking three principles of 

administrative law: the de minimis, one-step-ata-time, and administrative necessity doctrines. 

See id. at 43,496–99. For instance, EPA 

reasoned that it would be a waste of resources to 

regulate a biogenic carbon dioxide source that 

has a de minimis impact on the net carbon cycle. 

See id. at 43,499. 

 The Deferral Rule exempts from regulation 

biogenic carbon dioxide sources that trigger the 

PSD and Title V permitting programs at Step 

Two of the Tailoring Rule. The rule 

accomplishes this by amending the regulatory 

definition of ―greenhouse gases‖ to exclude 

biogenic carbon dioxide. Thus, biogenic carbon 

dioxide sources that have the potential to emit 

over the statutory thresholds, as modified by the 

Tailoring Rule, need not obtain a PSD or Title V 

permit. See id. at 43,493. The so-called 

―anyway‖ sources that obtained PSD and Title V 

permits during Step One of the Tailoring Rule, 

however, must still install BACT for their 

biogenic carbon dioxide emissions. See id. at 

43,500–01. 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 5 - 

 The Deferral Rule contains a sunset 

provision: absent further agency action, on July 

21, 2014, biogenic carbon dioxide will be 

regulated under the PSD and Title V programs, 

as modified by the Tailoring Rule. See id. at 

43,490, 43,507. Although the Deferral Rule is a 

temporary regulation, it functions, in effect, as a 

permanent exemption from the PSD permitting 

requirement for any biogenic carbon dioxide 

source constructed during the three-year deferral 

period. See id. at 43,499. Exempted sources 

would have to obtain PSD permits only if they 

undertake a modification project after the 

deferral period ends. See id. The Deferral Rule is 

also voluntary. ―Each state may decide if it 

wishes to adopt the deferral and proceed 

accordingly.‖ Id. at 43,502. At least one State, 

Massachusetts, is currently regulating biogenic 

carbon dioxide sources at Step Two of the 

Tailoring Rule. See Oral Arg. Tr. 3–4.

 [722 F.3d 408] 

 Center for Biological Diversity and several 

other environmental organizations now petition 

for review. ―We review the actions of the EPA 

to determine whether they are  ̳(A) arbitrary, 

capricious, an abuse of discretion, or otherwise 

not in accordance with law; (B) contrary to 

constitutional right, power, privilege, or 

immunity; [or] (C) in excess of statutory 

jurisdiction, authority, or limitations.‘ ‖

American Farm Bureau Federation v. EPA, 559 

F.3d 512, 519 (D.C.Cir.2009) (per curiam) 

(quoting 42 U.S.C. § 7607(d)(9)) (alternation in 

original). 

II.

 Before considering the merits of 

petitioners' challenge, we must determine 

whether this case is ripe for review. See In re 

Aiken County, 645 F.3d 428, 434 (D.C.Cir.2011) 

(explaining that the ―ripeness doctrine, even in 

its prudential aspect, is a threshold inquiry‖). 

Under the prudential ripeness doctrine, invoked 

by our dissenting colleague, see dissenting op. at 

419–20, courts look at two factors in deciding 

whether to stay their hand: the ―fitness of the 

issues for judicial decision‖ and ―the extent to 

which withholding a decision will cause 

hardship to the parties.‖ American Petroleum 

Institute v. EPA, 683 F.3d 382, 387 

(D.C.Cir.2012) (internal quotation marks 

omitted). 

 The Deferral Rule satisfies the first factor 

because it functions as an exemption from the 

PSD permit requirement for those sources 

constructed during the deferral period. See supra

at 407; Oral Arg. Tr. 13 (EPA conceding that the 

Deferral Rule permanently exempts sources 

constructed between July 2011 and July 2014). 

To be sure, once the deferral period ends, these 

sources' ―biogenic CO2 emissions would have to 

be appropriately considered in any applicability 

determinations ... conduct[ed] for future

stationary source permitting purposes.‖ Deferral 

Rule, 76 Fed.Reg. at 43,499 (emphasis added). 

But under the PSD program, a source would be 

required to obtain a permit only for ―a major 

modification determination.‖ Id. Given this, the 

question before us is whether EPA may exempt 

certain biogenic carbon dioxide sources—not 

just the air pollutant itself—from the PSD 

program. This is the type of ―purely legal‖ and 

―sufficiently final‖ issue that is ―fit [ ] ... for 

judicial decision‖ and can be resolved without 

resort to the prudential ripeness doctrine. 

American Petroleum Institute, 683 F.3d at 387 

(internal quotation marks omitted). 

 Regarding the second factor, the parties 

will suffer hardship if we decline to decide this 

issue. We know from oral argument that a 

biogenic carbon dioxide source in Allendale, 

South Carolina, has been constructed without a 

PSD permit, meaning that it has emitted more 

pollution than it otherwise would have but for 

the Deferral Rule. See Oral Arg. Tr. 5–6, 10. 

There may well be other such sources. Our 

dissenting colleague principally relies on a 

March 2012 declaration for the proposition that 

the number of sources impacted by the Deferral 

Rule is negligible. But we have no idea how 

many biogenic carbon dioxide sources have 

been constructed since March 2012, nor do we 

have any basis for predicting how many 

biogenic carbon dioxide sources will be 

constructed during the next year. Because the 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 6 - 

Deferral Rule authorizes certain sources to emit 

more pollutants than they would otherwise be 

allowed to under the Tailoring Rule, this dispute 

is ripe for review. 

III.

 Petitioners argue that the Deferral Rule 

violates the Clean Air Act's plain language. 

They rely on the statute's definition 

 [722 F.3d 409] 

of ―major emitting facility‖: any ―stationary 

source[ ]‖ that ―emit[s], or ha[s] the potential to 

emit,‖ certain specified amounts of ―any air 

pollutant.‖ 42 U.S.C. § 7479(1). Because EPA 

regulates carbon dioxide as an ―air pollutant,‖

petitioners contend that the agency has no 

authority to exempt any sources of carbon 

dioxide, including biogenic sources, from the 

PSD permitting program. Acknowledging the 

scientific uncertainty about biogenic carbon 

dioxide's role in the carbon cycle, petitioners 

argue that EPA can regulate biogenic sources 

under the PSD permitting program while 

accounting for their unique qualities at the 

BACT stage. For its part, EPA believes that it 

has authority under the Clean Air Act to treat 

biogenic carbon dioxide sources differently 

because these sources have unique 

characteristics that were ―unquestionably 

unforeseen when Congress enacted [the] PSD‖

program. Respondent's Br. 40. This statutory 

analysis, however, appears nowhere in the 

Deferral Rule. Instead, the Deferral Rule rests on 

the de minimis, one-step-at-a-time, and 

administrative necessity doctrines. Because the 

―grounds upon which an administrative order 

must be judged are those upon which the record 

discloses that its action was based,‖ SEC v. 

Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 

87 L.Ed. 626 (1943), the Deferral Rule must 

stand or fall on the merits of EPA's invocation of 

these doctrines. 

 We can easily reject EPA's use of the de 

minimis doctrine, which allows agencies to grant 

regulatory ―exemption[s] when the burdens of 

regulation yield a gain of trivial or no value.‖

Alabama Power Co. v. Costle, 636 F.2d 323, 

360–61 (D.C.Cir.1979). In the Deferral Rule, 

EPA stated that it had authority to exempt 

biogenic carbon dioxide sources that have ―a 

negligible or positive impact on the carbon cycle 

and net atmospheric CO2 levels.‖ Deferral Rule, 

76 Fed.Reg. at 43,499. In its appellate brief, 

however, EPA expressly disavows this doctrine, 

explaining that the Deferral Rule has a threeyear sunset provision whereas the de minimis

doctrine ―is used to establish permanent

exemptions.‖ Respondent's Br. 35. Given this 

concession, the Deferral Rule cannot be 

sustained under the de minimis doctrine. 

 The one-step-at-a-time doctrine, which 

EPA does defend, authorizes agencies to 

promulgate regulations in a piecemeal fashion. 

EPA explains that it is proceeding one-step-at-atime—that is, postponing regulation of biogenic 

carbon dioxide for three years-in order to give it 

time to study the science underlying these 

sources and determine its precise regulatory 

approach. SeeDeferral Rule, 76 Fed.Reg. at 

43,497 (―EPA has ... deferr[ed] the applicability 

of PSD and Title V to biogenic emissions of 

CO2 from stationary sources for only as long as 

necessary for EPA to complete the needed 

scientific study of these emissions, develop an 

accounting framework, and as appropriate 

conduct rulemaking specific to the unique nature 

and characteristics of these emission sources.‖). 

According to petitioners, however, federal 

agencies have no authority to invoke the onestep-at-a-time doctrine ―to diverge from [a] clear 

statutory mandate,‖ and here, they argue, the 

Clean Air Act unambiguously requires 

regulation of all carbon dioxide from whatever 

source. Petitioners' Br. 56. But we need not 

decide whether the one-step-at-a-time doctrine 

can justify an agency's non-compliance with a 

clear statutory mandate or whether the Clean Air 

Act unambiguously requires the regulation of all 

carbon dioxide from whatever source because, 

as we shall explain, EPA's invocation of the onestep-at-a-time doctrine was arbitrary and 

capricious. 

 [722 F.3d 410] 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 7 - 

See Grand Canyon Air Tour Coalition v. FAA,

154 F.3d 455, 477 (D.C.Cir.1998) (determining 

whether agency's reliance on the one-step-at-atime doctrine was arbitrary and capricious). 

 The one-step-at-a-time doctrine rests on 

the notion that ―[s]ince agencies have great 

discretion to treat a problem partially, we 

[sh]ould not strike down [a regulation] if it [is] a 

first step toward a complete solution.‖ City of 

Las Vegas v. Lujan, 891 F.2d 927, 935 

(D.C.Cir.1989). Eschewing a precise doctrinal 

test for invoking the doctrine, we have remarked 

that the one-step-at-a-time inquiry ―is in essence 

a pragmatic one.‖ National Association of 

Broadcasters v. FCC, 740 F.2d 1190, 1210 

(D.C.Cir.1984). We have observed that 

incremental regulation is especially appropriate 

in response to evolving economic and 

technological conditions. See id. at 1210–11. We 

have also imposed outer limits on the one-stepat-a-time doctrine: ―it would be arbitrary and 

capricious for an agency simply to thumb its 

nose at Congress and say—without any 

explanation—that it simply does not intend to 

achieve a congressional goal on any timetable at 

all.‖ Grand Canyon Air Tour Coalition, 154 

F.3d at 477. Although the ―circumstances under 

which [an] agency may defer [regulation] ... are 

[in]capable of being captured in a single 

doctrine,‖ National Association of Broadcasters,

740 F.2d at 1210, an agency invoking the onestep-at-a-time doctrine must, at a minimum, 

articulate (1) what it believes the statute requires 

and (2) how it intends to achieve that goal. 

Otherwise, reviewing courts will have no basis 

for evaluating whether the agency is in fact 

taking ―a first step toward a complete solution.‖

City of Las Vegas, 891 F.2d at 935. EPA itself 

put it well: ―Courts will accept an initial step 

towards full compliance with a statutory 

mandate, as long as the agency is headed 

towards full compliance.‖ Deferral Rule, 76 

Fed.Reg. at 43,498. 

 In this case, however, EPA failed to 

explain in the Deferral Rule what ―full 

compliance‖ with the ―statutory mandate‖

means. Specifically, although the Deferral Rule 

spends pages explaining the scientific 

uncertainty about biogenic carbon dioxide 

sources, the additional research EPA plans to 

undertake, and why three more years of study 

are warranted, the rule—as opposed to EPA's 

brief here—nowhere offers an interpretation of 

the Clean Air Act that would allow the agency to 

treat biogenic carbon dioxide sources 

differently. This deficiency is not merely the 

result of scientific uncertainty. For example, this 

would be a very different case had the Deferral 

Rule interpreted the Clean Air Act as requiring 

permits only for biogenic carbon dioxide sources 

with an adverse impact on the net carbon cycle 

and explained that the agency had deferred 

regulation due to scientific uncertainty over 

which sources meet that standard. Under those 

circumstances, we could have determined 

whether EPA had correctly interpreted the 

statute and properly invoked the one-step-at-atime doctrine. Here, by contrast, we simply have 

no idea what EPA believes constitutes ―full 

compliance‖ with the statute. In other words, the 

Deferral Rule is one step towards ... what? 

Without a clear answer to that question, EPA has 

no basis for invoking the one-step-at-a-time 

doctrine. 

 EPA next invokes the administrative 

necessity doctrine, which permits an agency to 

―avoid implementing a statute ... by showing 

that attainment of the statutory objectives is 

impossible.‖ Sierra Club v. EPA, 719 F.2d 436, 

463 (D.C.Cir.1983). Under this doctrine, the 

agency must also adopt the narrowest feasible 

exemption. See id. (criticizing the agency 

 [722 F.3d 411] 

for failing to explore ―less taxing ways to 

enforce the law‖). 

 Emphasizing both the possibility that 

biogenic carbon dioxide sources might have a 

negligible impact on the net carbon cycle and 

the ―extensive workload of processing permit 

applications,‖ EPA found that requiring permits 

for these sources ―would frustrate the goals ... 

sought to [be] accomplish[ed] in the Tailoring 

Rule.‖ Deferral Rule, 76 Fed.Reg. at 43,496. In 

doing so, EPA rejected a proposed middle-
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 8 - 

ground option: requiring biogenic carbon 

dioxide sources to obtain permits but only if 

they fail to make ―any effort to take into account 

net carbon cycle impacts.‖ Id. Under this 

approach, all biogenic carbon dioxide sources 

that would have triggered the modified statutory 

thresholds would have had to take some steps to 

reduce their emissions, either voluntarily to 

avoid the PSD permit requirement or by 

installing BACT as a condition of obtaining a 

permit. EPA rejected this approach because it 

―could result in regulation of sources with trivial 

or positive impacts on the net carbon cycle.‖ Id.

 Without deciding whether the middleground option could pass muster under the 

statute, we agree with petitioners that EPA's 

rejection of that option was arbitrary and 

capricious. EPA has conceded ―the possibility ... 

that more detailed examination of the science of 

biogenic CO2 will demonstrate that ... some 

biogenic feedstocks ... have a significant impact

on the net carbon cycle.‖ Id. at 43,498 (emphasis 

added). As to these sources, the middle-ground 

option would have had the practical effect of 

reducing their emissions; by contrast, the 

Deferral Rule, which functions as a permanent 

exemption, does not. EPA's reason for rejecting 

the middle-ground option—that it would 

regulate biogenic sources with a trivial impact—

though perhaps accurate, is thus non-responsive. 

Given EPA's obligation to adopt the narrowest 

exemption possible, it should have explained 

why it rejected an option that would have 

reduced emissions from sources the Deferral 

Rule permanently exempts. See Sierra Club, 719 

F.2d at 464 (remanding regulation because there 

was ―no evidence that EPA ha[d] adequately 

explored ... regulatory alternatives‖). 

 This omission is especially troublesome 

because EPA has demonstrated that, 

notwithstanding the scientific uncertainty about 

measuring biogenic carbon dioxide emissions at 

the PSD applicability stage, the unique 

characteristics of these sources can be factored 

in at the BACT stage. The Deferral Rule still 

requires ―anyway‖ sources that obtained PSD 

permits under Step One of the Tailoring Rule to 

regulate biogenic carbon dioxide emissions. To 

assist those sources and permitting authorities in 

developing BACT standards, EPA issued a 

detailed thirty-three page report on biogenic 

carbon dioxide. Presumably, permitting 

authorities are able to handle the scientific 

complexity of regulating biogenic carbon 

dioxide as to these ―anyway‖ sources. 

Furthermore, since the Deferral Rule is 

voluntary, States may regulate biogenic carbon 

dioxide sources under Step Two of the Tailoring 

Rule. Indeed, Massachusetts is currently doing 

just that. 

 Finally, for the first time in its brief, EPA 

relies on the absurd results doctrine, which 

embodies ―the long-standing rule that a statute 

should not be construed to produce an absurd 

result.‖ Mova Pharmaceutical Corp. v. Shalala,

140 F.3d 1060, 1068 (D.C.Cir.1998). As EPA 

sees it, because ―emissions of CO2 derived from 

certain forms of biomass may not only fail to 

endanger public health and welfare, but in fact 

may benefit the public by reducing the net 

emissions of CO2,‖ Respondent's Br. 59, it 

would run 

 [722 F.3d 412] 

afoul of congressional intent to regulate them. 

Responding to petitioners' contention that EPA's 

reliance on the absurd results doctrine is post 

hoc, the agency points to several passages in the 

Deferral Rule that mention the doctrine. These 

references fall into two groups. The first, and by 

far the larger, appears in a summary of the 

Tailoring Rule's legal reasoning. According to 

EPA, the Deferral Rule fully incorporates the 

Tailoring Rule's rationales, including the absurd 

results doctrine. See Respondent's Br. 59. But 

the Deferral Rule cannot rest on the Tailoring 

Rule's invocation of the absurd results doctrine 

for a simple reason: the two rules are aimed at 

different absurd results. The Tailoring Rule was 

intended to alleviate the crushing administrative 

burden on permitting authorities and sources, 

seeTailoring Rule, 75 Fed.Reg. at 31,547; the 

Deferral Rule, by contrast, was intended to avoid 

regulation of biogenic carbon dioxide sources 

that have a negligible impact on the net carbon 

cycle. The second group, which appears in a 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 9 - 

section justifying the Deferral Rule itself, 

mentions the absurd results doctrine only by 

analogy to the de minimis and administrative 

necessity doctrines. These passing references, 

however, fall far short of satisfying EPA's 

―fundamental‖ obligation to ―set forth the 

reasons for its actions.‖ Northeast Maryland 

Waste Disposal Authority v. EPA, 358 F.3d 936, 

949 (D.C.Cir.2004) (per curiam). For these 

reasons, we agree with petitioners that EPA's 

reliance on the absurd results doctrine is indeed 

post hoc. See Calpine Corp. v. FERC, 702 F.3d 

41, 46 (D.C.Cir.2012) (explaining that an 

―agency decision[ ] may not be affirmed on 

grounds not actually relied upon by the 

agency‖). 

 Because the Deferral Rule cannot be 

justified under any of the administrative law 

doctrines relied on by EPA, this opinion, 

contrary to our dissenting colleague's 

suggestion, see dissenting op. at 419, leaves for 

another day the question whether the agency has 

authority under the Clean Air Act to 

permanently exempt biogenic carbon dioxide 

sources from the PSD permitting program. If 

and when EPA adopts a permanent exemption 

for some or all biogenic carbon dioxide sources, 

we will have the benefit of three years of 

scientific study, as well as fully briefed and 

contextualized arguments about EPA's authority 

under the Clean Air Act. 

IV.

 For the foregoing reasons, we grant the 

petitions for review and vacate the Deferral 

Rule. 

 So ordered.

KAVANAUGH, Circuit Judge, concurring:

 Under this Court's recent precedent in 

Coalition for Responsible Regulation, Inc. v. 

EPA, this should be an easy case. The primary 

question presented is whether EPA has statutory 

authority to issue the Deferral Rule and thereby 

temporarily exempt biogenic carbon dioxide 

from the PSD and Title V permitting programs. 

In my view, the answer is no. This Court has 

ruled that the statute requires pre-construction 

and operating permits for stationary sources that 

emit or have the potential to emit certain 

specified amounts of an air pollutant, including 

carbon dioxide. There is zero basis in the text of 

the Clean Air Act for EPA to distinguish 

biogenic carbon dioxide from other sources of 

carbon dioxide that EPA is required (under our 

precedent) to regulate for purposes of the PSD 

and Title V permitting programs. See Coalition 

for Responsible Regulation, Inc. v. EPA, 684 

F.3d 102, 132–44 (D.C.Cir.2012). 

 [722 F.3d 413] 

 As a policy matter, EPA may have very 

good reasons to temporarily exempt biogenic 

carbon dioxide from the PSD and Title V 

permitting programs. But Congress sets the 

policy in the statutes it enacts; EPA has 

discretion to act only within the statutory limits 

set by Congress. The statute does not give EPA 

the authority to distinguish a stationary source's 

emissions of biogenic carbon dioxide from 

emissions of other forms of carbon dioxide for 

purposes of these permitting programs.1

 EPA cites three administrative law 

doctrines that, according to EPA, give it 

authority to grant the temporary exemption. But 

in addition to the reasons given in Judge Tatel's 

opinion for the Court, which I join in full, I 

would say that none of those doctrines applies in 

this case for an even more fundamental reason: 

The doctrines do not trump the fact that EPA 

simply lacks statutory authority to distinguish 

biogenic carbon dioxide from other forms of 

carbon dioxide for purposes of the PSD and 

Title V permitting programs. 

 First, EPA relies on the one-step-at-a-time 

doctrine, which allows an agency to take 

incremental steps toward achieving a statutory 

mandate if taking incremental steps is consistent 

with the statutory text. See Grand Canyon Air 

Tour Coalition v. FAA, 154 F.3d 455, 477–78 

(D.C.Cir.1998) (rule not arbitrary and capricious 

because it would achieve statutory mandate in 

conjunction with other proposed rules within a 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 10 - 

reasonable timeframe). An agency typically 

invokes that doctrine in response to a claim that 

an agency is exercising its statutory discretion in 

an arbitrary and capricious manner. 

 But EPA has no such statutory discretion 

here. Under the statute as this Court has 

interpreted it, EPA must regulate carbon dioxide 

under the PSD and Title V permitting programs. 

Coalition for Responsible Regulation, 684 F.3d 

at 144 (Clean Air Act ―requires PSD and Title V 

permits for major emitters of greenhouse 

gases‖). And there is no basis in the statute for 

distinguishing biogenic carbon dioxide from 

other forms of carbon dioxide. 

 Second, EPA cites the administrative 

necessity doctrine, which can excuse agency 

non-compliance with a statute if the agency 

lacks sufficient funds or resources. See Alabama 

Power Co. v. Costle, 636 F.2d 323, 359 

(D.C.Cir.1979) (shortage of funds, of ―time, or 

of the technical personnel needed to administer a 

program‖ grants agency authority ―to cope with 

the administrative impossibility of applying the 

commands of the substantive statute‖). But EPA 

has the funds and resources to apply the PSD 

and Title V programs to biogenic carbon 

dioxide. Indeed, in the Deferral Rule, EPA 

acknowledged that it has the resources to ―apply 

PSD and Title V to all facilities with biogenic 

CO2 emissions that emit at or above the 

Tailoring Rule thresholds.‖ 76 Fed.Reg. 43,490, 

43,496 (July 20, 2011). 

 EPA decided against that option, however, 

because EPA thought it might be bad policy. 

Specifically, EPA said that ―it is conceivable 

that as a result of the scientific examination of 

biogenic CO2 emissions, [EPA] could conclude 

that the net carbon cycle impact for some 

biomass feedstocks is trivial, negative, or 

positive.‖ Id. EPA reached that conclusion 

because it thinks that regrowth of plant life—and 

the resulting 

 [722 F.3d 414] 

recapture of carbon dioxide—might ―offset‖

emissions of biogenic carbon dioxide. But the 

statute forecloses that kind of ―offsetting‖

approach because the statute measures emissions 

from stationary sources that ―emit‖ (or have the 

potential to emit) air pollutants. See42 U.S.C. §§ 

7475(a), 7479(1). The statute does not allow 

EPA to exempt those sources' emissions of a 

covered air pollutant just because the effects of 

those sources' emissions on the atmosphere 

might be offset in some other way. 

 Relatedly, EPA suggests that it has 

appropriately balanced the costs and benefits of 

regulating biogenic carbon dioxide under the 

PSD and Title V programs. But EPA is not 

permitted to substitute its view of the costs and 

benefits of regulation for Congress's view of the 

costs and benefits of regulation. See Sierra Club 

v. EPA, 719 F.2d 436, 462 (D.C.Cir.1983) (EPA 

not permitted to create exemption ―based upon 

its perceptions of the costs and benefits of 

enforcing the law‖); Alabama Power Co., 636 

F.2d at 357 (―[T]here exists no general 

administrative power to create exemptions to 

statutory requirements based upon the agency's 

perceptions of costs and benefits.‖). Allowing an 

agency to substitute its own policy choices for 

Congress's policy choices in this manner would 

undermine core separation of powers principles. 

The Constitution gives Congress the legislative 

power to set policy in the first instance, and 

agencies then must act within those statutory 

boundaries—even if the agency believes it 

possesses expertise or policy views superior to 

Congress's. See Federal Power Commission v. 

Texaco, 417 U.S. 380, 400, 94 S.Ct. 2315, 41 

L.Ed.2d 141 (1974) (agencies cannot use 

administrative necessity ―to overturn 

congressional assumptions embedded into the 

framework of regulation‖ by Congress); Natural 

Resources Defense Council, Inc. v. Costle, 568 

F.2d 1369, 1377 (D.C.Cir.1977) (doctrine not a 

―revisory power‖ granting agency authority to 

act ―inconsistent with the clear intent of the 

relevant statute‖). 

 Third, EPA has also invoked the absurd 

results doctrine. The crux of EPA's position is 

that it would be absurd to interpret the Clean Air 

Act in a way that would require EPA to regulate 

biogenic carbon dioxide. But with EPA having 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 11 - 

already applied the PSD and Title V programs to 

carbon dioxide (and with this Court having 

agreed with that interpretation of the statute), 

there is certainly nothing absurd about applying 

those programs to biogenic carbon dioxide. It is 

hardly absurd for Congress to tackle the problem 

of emissions from the smokestack in the first 

instance. And the fact that an exemption for 

biogenic carbon dioxide would be better policy 

(in EPA's view) does not make it absurd to apply 

the statute to biogenic carbon dioxide. See 

Landstar Express America, Inc. v. Federal 

Maritime Commission, 569 F.3d 493, 498 

(D.C.Cir.2009) (―A statutory outcome is absurd 

if it defies rationality.‖). If it would be better 

overall to exempt biogenic carbon dioxide from 

these permitting programs, EPA can always 

recommend that Congress do so.2

 [722 F.3d 415] 

 All of that said, I have mixed feelings about 

this case. That's because I believe, contrary to 

this Circuit's precedent, that the PSD statute 

does not cover carbon dioxide, whether biogenic 

or not. See Coalition for Responsible 

Regulation, Inc. v. EPA, No. 09–1322 

(D.C.Cir.2012) (Kavanaugh, J., dissenting from 

denial of rehearing en banc). And as I see it, 

EPA's decision to temporarily exempt biogenic 

carbon dioxide from regulation simply 

highlights the legal problems in applying the 

PSD program to greenhouse gases, including 

carbon dioxide, in the first place. To review the 

bidding: EPA has read the PSD statute broadly 

to cover not just the NAAQS pollutants but also 

greenhouse gases, although EPA expressly 

recognized that such an interpretation would 

lead to a result that was ―so contrary to what 

Congress had in mind‖ and ―in fact so 

undermines what Congress attempted to 

accomplish with the PSD requirements‖ that ―it 

should be avoided under the  ̳absurd results' 

doctrine.‖ 74 Fed.Reg. 55,292, 55,310 (Oct. 27, 

2009). To try to deal with those admittedly 

absurd results, EPA then has repeatedly rewritten the statute—first in the Tailoring Rule 

and now in the Deferral Rule. But the absurdities 

and anomalies flowing from EPA's statutory 

interpretation just underscore how flawed EPA's 

interpretation was from the get-go. EPA could 

have adopted a narrower interpretation of the 

PSD statute that would have avoided those 

absurdities and, to boot, would have been more 

consistent with the statutory text and structure. 

What we are left with now is a statute that is a 

far cry from what Congress intended or enacted. 

So EPA is necessarily making it up as it goes 

along. That is not how the administrative 

process is supposed to work. 

 In saying that, I do not want to diminish 

EPA's vital public objectives in addressing 

global warming. The task of dealing with global 

warming is urgent and important at the national 

and international level. My concern about EPA's 

approach does not stem from policy beliefs 

(courts don't have the authority or the expertise 

to assess policy well anyway) but rather from 

separation of powers principles. 

 But EPA's broad interpretation of the 

statute was upheld by this Court in Coalition for 

Responsible Regulation. Although I respectfully 

think the case was wrongly decided on this 

issue, that's water over the dam in this Court. 

We are bound to apply that precedent. Under 

that case's interpretation of the governing 

statute, EPA is required to regulate carbon 

dioxide under the PSD and Title V permitting 

programs. There is no statutory basis for 

exempting biogenic carbon dioxide. 

KAREN LECRAFT HENDERSON, Circuit 

Judge, dissenting:

 We must decide whether the Environmental 

Protection Agency (EPA) may temporarily defer 

regulation of biogenic carbon dioxide (CO2) 

emissions against a backdrop of uncertain but 

expanding scientific knowledge and rapid 

regulatory changes. Deferral for CO2 Emissions 

from Bioenergy, 76 Fed.Reg. 43,490 (July 20, 

2011) (Deferral Rule). I believe EPA can—and 

should—defer regulation until it has the time it 

says it needs to study and resolve the issue it is 

charged with regulating. 

 [722 F.3d 416] 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 12 - 

I would therefore uphold the Deferral Rule. 

Alternatively, given that the Deferral Rule 

expires or will be superseded in a matter of 

months—and by then EPA will have at least 

crystallized the issue before us—we should hold 

the case in abeyance as unripe. Accordingly, I 

respectfully dissent. 

I.

 The Deferral Rule delays for three years—

from July 20, 2011 until July 21, 2014—the 

EPA's factoring in of biogenic CO2 emissions 

―when determining whether a stationary source 

meets the‖ emissions thresholds for permitting 

under the Prevention of Significant Deterioration 

(PSD) and Title V permitting systems of the 

Clean Air Act (CAA), 42 U.S.C. §§ 7401 et 

seq.SeeDeferral Rule, 76 Fed.Reg. at 43,492. In 

so deferring, EPA has used, correctly, I believe, 

the long-recognized step-at-a-time regulatory 

procedure. This procedure recognizes the reality 

and complexity of administrative regulation. ―In 

an ideal world ... agencies would act only after 

comprehensive consideration of how all 

available alternatives comported with a welldefined policy objective....‖ Nat'l Ass'n of 

Broadcasters v. FCC, 740 F.2d 1190, 1210 

(D.C.Cir.1984). Nonetheless, ―administrative 

action generally occurs against a shifting 

background in which facts, predictions, and 

policies are in flux and in which an agency 

would be paralyzed if all the necessary answers 

had to be in before any action at all could be 

taken.‖ Id. Thus, ―agencies have great discretion 

to treat a problem partially‖ and we will ―not 

strike down [a regulation] if it [is] a first step 

toward a complete solution, even if we thought it 

 ̳should‘ ‖ have been finished. City of Las Vegas 

v. Lujan, 891 F.2d 927, 935 (D.C.Cir.1989). 

Moreover, ―nothing in the [Administrative 

Procedure Act] precludes an agency from 

collecting data and monitoring real-world 

experience with regulatory standards before 

adopting new standards governing periods of 

time far into the future—especially in cases, as 

here, that involve unpredictable technological 

change. Indeed, gathering evidence before

making a long-term decision is eminently 

sensible.‖ Pub. Citizen, Inc. v. Nat'l Highway 

Traffic Safety Admin., 374 F.3d 1251, 1263 

(D.C.Cir.2004); see also id. at 1262–63 

(agency's temporarily declining to make crash 

test requirements stricter was not arbitrary and 

capricious because it ―offered rational reasons 

for adopting an  ̳interim final rule‘ establishing 

the unbelted crash test speed through August 

2006 only‖ while it undertook ―multi-year effort 

to obtain additional data‖). 

 The Deferral Rule must be read in light of 

the fact that EPA did not regulate greenhouse 

gases (GHGs) under the CAA at all until the end 

of 2009, seeEndangerment and Cause or 

Contribute Findings for Greenhouse Gases, 74 

Fed.Reg. 66,496 (Dec. 15, 2009), and did not 

regulate them under PSD and Title V until 2011, 

seePrevention of Significant Deterioration and 

Title V Greenhouse Gas Tailoring Rule, 75 

Fed.Reg. 31,514, 31,521 (June 3, 2010) 

(Tailoring Rule). By postponing regulation of 

biogenic CO2 emissions under PSD and Title V, 

the Deferral Rule simply keeps in place the pre–

2011 status quo. The question, then, is whether 

the petitioners can compel EPA to act before 

July 21, 2014.1

 [722 F.3d 417] 

 Although the step-at-a-time doctrine is 

―pragmatic‖ and cannot be ―captured in a single 

doctrinal formulation,‖ we ask two questions 

when an agency uses it to ―defer resolution of 

problems.‖ Nat'l Ass'n of Broadcasters, 740 F.2d 

at 1210. First, we ask whether the agency (1) has 

―made some estimation, based upon evolving 

economic and technological conditions, as to the 

nature and magnitude of the problem it will have 

to confront when it comes to resolve the 

postponed issue‖; and (2) ―whether it was 

reasonable, in the context of the decisions made 

in the proceeding under review, for the agency 

to have deferred the issue.‖ Id. at 1210–11. 

Regarding the second question, ―postponement 

will be most easily justified when an agency acts 

against a background of rapid technical and 

social change and when the agency's initial 

decision as a practical matter is reversible should 

the future proceedings yield drastically 

unexpected results.‖ Id. at 1211;see also 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 13 - 

Massachusetts v. EPA, 549 U.S. 497, 527, 127 

S.Ct. 1438, 167 L.Ed.2d 248 (2007) (―[A]n 

agency has broad discretion to choose how best 

to marshal its limited resources and personnel to 

carry out its delegated responsibilities.‖). I 

believe EPA's rationale for the Deferral Rule 

easily fits within this framework. 

 EPA has reasonably attempted to balance 

its acknowledged CAA duty to regulate GHGs 

with the reality that both EPA itself as well as 

other permitting authorities have limited 

resources and experience in this area. The 

Tailoring Rule, which EPA promulgated in 

2010, created a phase-in process whereby, at 

first, only the largest GHG emitters would be 

subject to PSD and Title V on the basis of GHG 

emissions. Tailoring Rule, 75 Fed.Reg. at 

31,516. The phase-in was necessary both to 

alleviate high costs to permitting authorities, id.

at 31,533, and to give EPA time to decide how 

to permanently implement GHG regulation, id.

at 31,526. EPA promulgated the Deferral Rule 

because of similar cost and scientific 

uncertainty. Specifically, EPA did not know in 

2011 which, if any, biofuel feedstocks cause a 

net increase in atmospheric CO2 levels when 

used as fuel for a stationary source. Deferral 

Rule, 76 Fed.Reg. at 43,492. EPA was 

concerned that, if it regulated all sources' 

biogenic CO2 emissions without taking net 

increase vel non into account, its regulation of 

the sources could result in high cost but 

negligible benefit. 2

 EPA also concluded that 

immediate, one-size-fits-all regulation of 

biogenic CO2 could be counterproductive by 

discouraging the construction of low-net-carbon 

stationary facilities. Id. at 43,496. Absent 

deferral, EPA concluded, permitting 

authorities—primarily, states—would face a 

heavy administrative burden due to, inter alia,

the need to take the carbon cycle into account in 

determining best available control technology 

(BACT) during the permitting process. 

 [722 F.3d 418] 

See id. at 43,492;see also id. at 43,496 (―[T]he 

extensive workload associated with analyzing 

and accounting for biogenic CO2 emissions as 

part of processing permit applications from 

biomass facilities justifies exempting those 

sources for a period of time....‖). While EPA 

attempted to alleviate the administrative burden 

by promulgating interim guidance to help 

permitting authorities conduct BACT analysis 

for biogenic CO2 emissions—explaining that in 

some instances, combustion of biomass can be 

considered BACT—the case-by-case analysis 

that permitting authorities, without the Deferral 

Rule, would be required to undertake 

immediately ―would likely be prohibitively 

time-consuming and complex.‖ EPA Office of 

Air & Radiation, Guidance for Determining Best 

Available Control Technology for Reducing 

Carbon Dioxide Emissions from Bioenergy 

Production 23 (Mar.2011), http:// www. epa. 

gov/nsr/ghgdocs/bioenergyguidance.pdf. 

Accordingly, EPA promulgated the Deferral 

Rule as an ―initial step toward full compliance‖

with the statutory mandate to regulate GHGs. 

Deferral Rule, 76 Fed.Reg. at 43,498. The 

Deferral Rule expires on July 21, 2014, at which 

time biogenic CO2 emissions will automatically 

be treated like all other CO2 emissions unless, 

on or before that date, EPA ―undertake[s] 

additional rulemaking to clarify the applicability 

of PSD and Title V permitting requirements.‖ Id.

(citing Grand Canyon Air Tour Coalition v. 

FAA, 154 F.3d 455, 476–77 (D.C.Cir.1998)); see 

also id. at 43,494 (quoting Massachusetts, 549 

U.S. at 524, 127 S.Ct. 1438 (agencies may 

implement regulatory programs over time, 

―refining their preferred approach as 

circumstances change and as they develop a 

more nuanced understanding of how best to 

proceed.‖)). In the meantime, EPA planned to 

study the science and ultimately either establish 

an appropriate carbon accounting framework for 

biogenic CO2 emissions or, to repeat, allow the 

Deferral Rule to expire and treat biogenic CO2 

emissions like other CO2 emissions. 

 My colleagues attack the Deferral Rule 

because it ―nowhere offers an interpretation of 

the Clean Air Act that would allow the agency to 

treat biogenic carbon dioxide sources 

differently.‖ Maj. Op. 409–10. But EPA is not 

permanently treating biogenic CO2 emissions 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 14 - 

differently. As the Deferral Rule explains, EPA 

believes, based on the evidence currently in its 

possession, that further study may support a 

decision to give special treatment to some 

biogenic emissions. Deferral Rule, 76 Fed.Reg. 

43,496;see also id. at 43,499 (―EPA believes 

based on information currently before the 

Agency that at least some biomass feedstocks ... 

have a negligible impact on the net carbon cycle, 

or possibly even a positive net effect.‖). If 

further study does not bear this out, EPA has 

implicitly acknowledged that it will treat 

biogenic CO2 emissions as it does other CO2 

emissions. Cf. id. at 43,498 (―[EPA] will be 

using the three-year deferral period to better 

understand the science associated with biogenic 

CO2 emissions and to explore whether or not a 

Permanent exemption is permissible....‖

(emphasis added)).3

 [722 F.3d 419] 

 To be sure, in Coalition for Responsible 

Regulation v. EPA, 684 F.3d 102 

(D.C.Cir.2012), we held that ―once the Tailpipe 

Rule set motor-vehicle emission standards for 

greenhouse gases, they became a regulated 

pollutant under the Act, requiring PSD and Title 

V greenhouse permitting.‖ Id. at 115. But, just 

as EPA proceeded gradually in regulating GHGs 

under the Tailoring Rule, EPA has delayed its 

regulation of a specific GHG via the Deferral 

Rule.4

 The fact that EPA is required to take 

action does not preclude it from phasing in the 

action using the step-at-a-time method. In Grand 

Canyon Air Tour, the Congress required the 

Federal Aviation Administration (FAA), within 

120 days of enactment of the Overflights Act, to 

―prepare and issue a final plan for the 

management of air traffic in the air space above 

the Grand Canyon.‖ See154 F.3d at 460. After 

the FAA promulgated only interim measures, the 

Grand Canyon Trust challenged it as ―too little‖

and ―too late.‖ Id. at 473. We rejected its 

challenge, declaring that, although ―it would be 

arbitrary and capricious for an agency simply to 

thumb its nose at Congress and say—without 

any explanation—that it simply does not intend 

to achieve a congressional goal on any timetable 

at all.... the FAA has not taken that course here. 

It has never defended the Final Rule as the sole 

means for [satisfying the statute], but only as the 

first of three steps.‖ Id. at 477;cf. Ala. Power Co. 

v. Costle, 636 F.2d 323, 357 (D.C.Cir.1979) 

(―Certain limited grounds for the creation of 

exemptions are inherent in the administrative 

process, and their unavailability under a 

statutory scheme should not be presumed, save 

in the face of the most unambiguous 

demonstration of congressional intent....‖). 

While the CAA requires EPA to regulate CO2, it 

does not foreclose, as one step toward full 

compliance, EPA's deferring regulation of a 

unique type of CO2 in order to study whether 

EPA can—and should—treat it differently. EPA 

does not defend the Deferral Rule as the sole or 

final means of dealing with biogenic CO2 

emissions nor has it thumbed its nose at the 

Congress. By July 21, 2014, EPA will take its 

next step—either by regulating biogenic CO2 

emissions like other CO2 emissions by default ( 

i.e., the expiration of the Deferral Rule) or by 

handling biogenic CO2 emissions specifically. 

 The necessary implication of the majority 

opinion is that, no matter the results of EPA's 

study, EPA lacks authority to treat biogenic CO2 

emissions differently from other emissions. The 

CAA defines a major emitting source ( i.e., a 

source subject to PSD and Title V permitting 

requirements) as a source that ―emit[s] or [has] 

the potential to emit‖ above-threshold amounts 

of a regulated pollutant ―from‖ the source. 42 

U.S.C. § 7479(1). The petitioners believe, and 

my colleagues apparently agree, this language 

precludes EPA from considering ―off-site‖

factors, such as the carbon cycle of the biomass 

used as a source's fuel, in determining whether 

the source is subject to PSD. But the language 

has not precluded EPA from recognizing de 

minimis exceptions from the statute. Under the 

de minimis doctrine, ―[c]ourts should be 

reluctant to apply the literal terms of a statute to 

mandate pointless expenditures of effort.‖ Ala. 

Power, 636 F.2d at 360. Unless the Congress 

has been ―extraordinarily rigid,‖ we will uphold 

an exemption from the statute's literal terms 

―when the burdens of regulation 

 [722 F.3d 420] 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 15 - 

yield a gain of trivial or no value.‖ Id. at 360–61. 

PSD and Title V are meant to protect against 

harm resulting from the emission of regulated 

pollutants, see, e.g.,42 U.S.C. § 7470, and EPA 

has found that GHGs such as CO2 cause harm 

by accumulating in excess amounts in the 

atmosphere, see, e.g.,Tailoring Rule, 75 

Fed.Reg. at 31,519. If EPA's review shows, 

however, that the combustion of certain biomass 

feedstocks has no effect on—or even reduces—

atmospheric CO2 levels, EPA could then use 

this information to support a de minimis

exception to the regulation of certain biogenic 

CO2 emissions. Cf. Ala. Power, 636 F.2d at 330 

(―[T]he application of BACT requirements to 

the emission of all pollutants ... no matter how 

miniscule ... could impose severe administrative 

[and economic] burdens.... [T]he proper way to 

resolve this difficulty is to define a de minimis 

standard....‖). Exempting from regulation a 

source with a negligible—and particularly, a 

beneficial—effect on atmospheric CO2 levels 

would be perfectly consistent with the 

overarching PSD and Title V permitting 

regime—a regime which expressly does not 

regulate ―minor‖ sources that cause little harm 

because they release below-threshold levels of 

pollutants. See42 U.S.C. §§ 7479(1), 7661(2), 

7602(j). Given the availability of a de minimis

exception, it is not as though, as the majority 

necessarily assumes, that the Deferral Rule 

delays the inevitable.5

 In sum, EPA's decision to stop and think 

before regulating in a complex—and changing—

area is eminently reasonable. 

II.

 Alternatively, under the prudential ripeness 

doctrine, I believe we should not have reached 

the merits of this case. The ripeness doctrine 

prevents the court from prematurely adjudicating 

a dispute. Abbott Labs. v. Gardner, 387 U.S. 

136, 148–49, 87 S.Ct. 1507, 18 L.Ed.2d 681 

(1967). The doctrine comes ―from Article III 

limitations on judicial power and from 

prudential reasons for refusing to exercise 

jurisdiction.‖ Reno v. Catholic Soc. Servs., Inc.,

509 U.S. 43, 57 n. 18, 113 S.Ct. 2485, 125 

L.Ed.2d 38 (1993). ―The ripeness doctrine, even 

in its prudential aspect, is a threshold inquiry....‖

In re Aiken Cnty., 645 F.3d 428, 434 

(D.C.Cir.2011). The court stays its hand so the 

―administrative process [can] run its course 

before binding parties to a judicial decision.‖

Am. Petroleum Inst. v. EPA, 683 F.3d 382, 386 

(D.C.Cir.2012) (challenge to EPA rule 

continuing to regulate certain materials held 

unripe because EPA subsequently issued NPRM 

significantly changing regulatory scheme). This 

doctrine gives ―the challenging party [time] to 

convince the agency to alter a tentative 

position,‖ ―provides the agency an opportunity 

to correct its own mistakes and to apply its 

expertise,‖ narrows the legal and factual issues 

at play and ―comports with our theoretical role 

as the governmental branch of last resort.‖ Id. at 

386–87 (quotation marks omitted). It thus 

―ensures that Article III courts make decisions 

only when they have to, and then, only once.‖

Id. at 387. 

 We consider two factors in assessing 

prudential ripeness: (1) the ―fitness of the issues 

for judicial decision‖ and (2) ―the 

 [722 F.3d 421] 

extent to which withholding a decision will 

cause hardship to the parties.‖ Id. (quotation 

marks omitted). 

A. Fitness for Review

 The first factor—fitness—is ―meant to 

protect the agency's interest in crystallizing its 

policy before that policy is subjected to judicial 

review and the court's interests in avoiding 

unnecessary adjudication and in deciding issues 

in a concrete setting.‖ Id. (quotation marks 

omitted). We must consider, inter alia, ―whether 

[the issue] is purely legal, whether consideration 

of the issue would benefit from a more concrete 

setting, and whether the agency's action is 

sufficiently final.‖ Id. (quotation marks omitted). 

An issue is particularly unfit for review if, by 

staying our hand temporarily, we need never 

address it. See Nat'l Treasury Emps. Union v. 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 16 - 

United States, 101 F.3d 1423, 1431 

(D.C.Cir.1996). We 

 decline to review ―tentative‖ agency 

positions because doing so ―severely 

compromises the interests‖ the ripeness doctrine 

protects: ―The agency is denied full opportunity 

to apply its expertise and to correct errors or 

modify positions in the course of a proceeding, 

the integrity of the administrative process is 

threatened by piecemeal review of the 

substantive underpinnings of a rule, and judicial 

economy is disserved because judicial review 

might prove unnecessary if persons seeking such 

review are able to convince the agency to alter a 

tentative position.‖

Am. Petroleum Inst., 683 F.3d at 387 (quoting 

Pub. Citizen Health Research Grp. v. Comm'r, 

FDA, 740 F.2d 21, 31 (D.C.Cir.1984)). 

 The Deferral Rule—a temporary rule that 

expires or will be replaced by July 21, 2014—is 

not fit for review. First, by staying our hand, we 

would give the petitioners an opportunity to 

convince EPA to promulgate a rule more to their 

liking. If EPA promulgated such a rule, or 

simply allowed the Deferral Rule to expire on 

July 21, 2014, the petitioners' challenge could be 

resolved. See also Tex. Indep. Producers & 

Royalty Owners Ass'n v. EPA, 413 F.3d 479, 483 

(5th Cir.2005) (EPA decision to defer permit 

requirements for certain oil and gas construction 

sites unripe because ―[g]iven that EPA has 

specifically stated its intent to examine, during 

the Deferral Period, the issue of how best to 

resolve questions ... regarding section 402( l )(2) 

of the Clean Water Act, any interpretation we 

would provide would necessarily prematurely 

cut off EPA's interpretive process‖ (quotation 

marks omitted)). 

 Second, even assuming EPA issues a 

superseding rule to which the petitioners object, 

the Deferral Rule will crystallize the issues 

raised by their challenge. See, e.g., Am. 

Petroleum Inst., 683 F.3d at 388 (―In the 

ongoing rulemaking, EPA could change its mind 

and keep the transfer-based exclusion, in which 

case the issue goes away; or, if EPA stays the 

course and abolishes the transfer-based 

exclusion, the dispute will become concrete and 

straightforward.‖); Nat'l Treasury, 101 F.3d at 

1431 (―[W]hile the broad legal theory advanced 

by appellants may be as complete as it ever will, 

the facts upon which its resolution may depend 

are not  ̳fully crystallized‘....‖). The current 

dispute is whether EPA may postpone regulatory 

action based on insufficient information. If EPA 

promulgated a superseding rule exempting 

biogenic CO2 from regulation, the dispute 

would be whether EPA may promulgate a 

permanent (or at least more crystallized) 

exemption. SeeDeferral Rule, 76 Fed.Reg. at 

43,492–93;see also Am. Petroleum Inst., 683 

F.3d at 387 (finding lack of ripeness when ―EPA 

responds that the pyrophoric properties of 

 [722 F.3d 422] 

the catalysts warrant further consideration to 

make sure they will not be discarded during 

transfer‖).6

 To be sure, ―an agency can[not] stave off 

judicial review of a challenged rule simply by 

initiating a new proposed rulemaking that would 

amend the rule in a significant way.‖ Am. 

Petroleum Inst., 683 F.3d at 388. While EPA has 

not yet proposed a final rule, it has also not 

engaged in a ―thinly veiled attempt to evade 

review,‖ id., but instead committed itself to act 

by a date certain—July 21, 2014. See Oral Arg. 

Tr. 28–29 (Apr. 8, 2013) (EPA's Science 

Advisory Board has issued final report now 

being analyzed); see also Wheaton Coll. v. 

Sebelius, 703 F.3d 551, 552 (D.C.Cir.2012) 

(―We take the government at its word and will 

hold it to it.‖). 

 For the foregoing reasons, I believe the 

Deferral Rule is not fit for review at this time. 

B. Hardship to the Parties

 ―To outweigh the[ ] institutional interests in 

the deferral of review, any hardship caused by 

that deferral must be immediate and significant.
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 17 - 

Considerations of hardship that might result 

from delaying review will rarely overcome the 

... fitness problems inherent in attempts to 

review tentative positions.‖ Am. Petroleum Inst.,

683 F.3d at 389 (emphases added) (quotation 

marks omitted). 

 The petitioners argue, and my colleagues 

agree, Maj. Op. 407–08, that the hardship caused 

by the Deferral Rule is especially serious 

because the Deferral Rule could result in a 

―permanent‖ exemption from PSD permitting. 

Specifically, a stationary source constructed 

during the deferral period without obtaining a 

PSD permit (because of its temporary biogenic 

CO2 exemption) could, in theory, escape 

permitting forever because a PSD permit would 

then be required only if the source is modified. 

See42 U.S.C. § 7475(a). It is possible, then, that 

even if EPA decides to regulate biogenic CO2 

emissions like all other CO2 emissions, a source 

constructed during the deferral period would 

never need to obtain a PSD permit if it remains 

unmodified. 

 The Deferral Rule does not open the 

floodgates as the petitioners and my colleagues 

fear. It allows a source to avoid PSD permitting 

only if (1) it has the potential to emit CO2 as a 

result of biogenic emissions; (2) its potential to 

emit biogenic CO2 exceeds Tailoring Rule 

thresholds; (3) it is not otherwise subject to PSD 

permitting based on its potential to emit other 

pollutants or non-biogenic CO2 emissions; and

(4) it is able to obtain a minor source (non-PSD) 

permit and commence construction 7

 no later 

than July 21, 2014. And a source could 

permanently avoid PSD permitting only if it met 

the above requirements and never underwent a 

―major modification determination.‖ See

 [722 F.3d 423] 

Deferral Rule, 76 Fed.Reg. at 43,499.8 At oral 

argument, the petitioners were able to name only 

one source—a facility located in Allendale, 

South Carolina—that has been able to avoid 

PSD permitting ―in direct reliance on‖ the 

Deferral Rule. Oral Arg. Tr. 5–6, 10. The 

intervenors describe the number of sources that 

could take advantage of the Deferral Rule as ―a 

handful,‖ Oral Arg. Tr. 32. The petitioners 

submitted with their opening brief the 

declaration of Ranajit Sahu, an environmental, 

mechanical and chemical consultant, listing 

eight sources he reviewed that had obtained 

―minor source‖ (non-PSD) permits but 

―[e]scape[d] PSD [d]ue to the Biomass 

Exemption:‖ the Allendale facility plus seven 

others. Sahu Decl. at 14, 20–24. Six of them, 

however, obtained their minor source permits 

before the Deferral Rule was promulgated. 

Compare Sahu Decl. 22–24 (referencing 

Biogreen, Concord, Dorchester, Kershaw, 

Kamath Falls, Mancelona and Menominee 

facilities), with Sahu Decl. 5 (Biogreen obtained 

permit on December 15, 2010; Dorchester and 

Kershaw obtained permits on June 30, 2011; 

Klamath Falls obtained permit on December 30, 

2010; Mancelona obtained permit on February 9, 

2010; and Menominee obtained permit on May 

11, 2011). If any of these sources commenced 

construction before July 2011, as is likely, the 

Deferral Rule would not affect that source 

because no source was subject to PSD based 

solely on CO2 emissions before that date.9

 To sum up, not only is this case unfit for 

review but the hardship of which the petitioners 

complain is hyperbolically overblown. The 

Deferral Rule does not deregulate scores of 

polluters.10 Instead, it temporarily maintains the 

heretofore long-time status quo 11 for a limited 

number of 

 [722 F.3d 424] 

stationary sources that—until July 1, 2011—had 

never been subject to regulation as a major 

source under PSD. Given these circumstances, 

and our role as ―the governmental branch of last 

resort,‖ Aiken Cnty., 645 F.3d at 434, I believe 

we should deny the petition; in the alternative, 

we should hold the case in abeyance pending 

either the expiration of the Deferral Rule on July 

21, 2014 or EPA action taken by that date.12

-------- 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 18 - 

Notes: 

 

1. Under current precedent, for EPA to 

exempt biogenic carbon dioxide, it presumably 

would have to tinker with the Endangerment 

Finding. Unless EPA does so, there is no 

statutory basis for exempting biogenic carbon 

dioxide from the PSD and Title V permitting 

programs. 

 

2. To be sure, the Executive may decline to 

follow a statutory mandate or prohibition 

applicable to the Executive if the President 

concludes that it is unconstitutional, unless and 

until a final Court order says otherwise. But 

EPA has not claimed that the statutory 

requirement to apply these permitting programs 

to biogenic carbon dioxide would be 

unconstitutional. It is also true that the Executive 

possesses a significant degree of prosecutorial 

discretion to decline to initiate criminal or civil 

enforcement actions against violators of a 

federal law. But EPA's decision here is not such 

a nonenforcement action, and EPA has not 

claimed otherwise. See Massachusetts v. EPA,

549 U.S. 497, 527–28, 533, 127 S.Ct. 1438, 167 

L.Ed.2d 248 (2007) (explaining difference 

between prosecutorial discretion and agency's 

choice whether to regulate); see generally In re 

Aiken County, No. 11–1271, slip op. at 2 n. 1 

(D.C.Cir.2012) (Kavanaugh, J., concurring) 

(describing prosecutorial discretion); Seven–Sky 

v. Holder, 661 F.3d 1, 50 n. 43 (D.C.Cir.2011) 

(Kavanaugh, J., dissenting) (referring to 

possibility that a President might exercise 

prosecutorial discretion not to seek civil 

penalties against those who fail to comply with 

health insurance mandate).* * * 

 

1. Our review is highly deferential. See 

Interstate Natural Gas Ass'n of Am. v. FERC,

285 F.3d 18, 57 (D.C.Cir.2002) (―The policy 

originates in past decisions; FERC did not here 

decide to continue it, in the sense of confronting 

the substance and making an affirmative 

decision; it decided only that it would defer 

substantive treatment to a different—and 

necessarily later—context. In essence, then, the 

claim is of a violation of the [Administrative 

Procedure Act]'s mandate that an agency decide 

matters within a reasonable time, and calls on us 

to compel agency action unlawfully withheld or 

unreasonably delayed. Our review is [therefore] 

highly deferential.‖ (quotation marks and 

citations omitted)). 

 

2. Earlier, EPA had predicted that, had it not 

adopted the Tailoring Rule's phase-in approach, 

permitting authorities would have faced a 140–

fold increase in PSD permitting activity, or $1.5 

billion in additional annual costs; and a 400–fold 

increase in Title V permitting activity, or $21 

billion in additional annual costs. Tailoring 

Rule, 75 Fed.Reg. at 31,539–40. Even under the 

phase-in approach, EPA projected a 42% 

increase in administrative costs per year. Id. at 

31,540, Table V–1. In the Deferral Rule, EPA 

reasoned that ―requiring regulation of biogenic 

sources of CO2 at this time may,‖ inter alia,

―exacerbate[ ] the regulatory burdens ... the 

Tailoring Rule was intended to avoid.‖ Deferral 

Rule, 76 Fed.Reg. at 43,499. 

 

3. Contrary to my colleagues' suggestion, 

the step-at-a-time doctrine does not require that 

an agency articulate precisely what constitutes 

full compliance with the statute at the time it 

takes an incremental step. Compare Maj. Op. 

410 (criticizing EPA because ―we simply have 

no idea what EPA believes constitutes  ̳full 

compliance‘ with the statute‖), with Pub. 

Citizen, 374 F.3d at 1263 (permitting agency to 

delay ―a final decision regarding the maximum 

test speed for unbelted dummy testing‖ until 

agency completed gathering information and 

analysis). The rationale for a deferral period is 

that delay is necessary to allow the agency to 

determine what it is unable to determine at the 

time, i.e., full compliance with a statutory 

mandate. 

 

4. In Coalition for Responsible Regulation,

we rejected a challenge to the Tailoring Rule, 

albeit on lack of standing. 684 F.3d at 113–14. 

 

5. Moreover, to the extent it could be shown 

that the CAA is so ―extraordinarily rigid‖ as to 

bar EPA from considering off-site activity in 

determining a stationary source's ―potential to 

emit‖ CO2, EPA is also studying ―the nature of 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 19 - 

the fuel combusted on site at the  ̳stack,‘ ‖ which 

does not involve off-site activity. Br. of Resp'ts 

49. If EPA concludes it cannot consider off-site 

activity, it could adjust its regulation using only 

on-site activity like stack combustion. 

 

6. The majority opinion does not bar EPA 

from ultimately exempting biogenic CO2 from 

PSD and Title V regulation. Instead, my 

colleagues strike down a temporary agency 

position almost certain to be recast. They thus 

threaten the ―integrity of [the] administrative 

process ... by piecemeal review of the 

substantive underpinnings of a rule.‖ Pub. 

Citizen, 740 F.2d at 31;see also Am. Petroleum 

Inst., 683 F.3d at 388 (―[T]o the extent API and 

EPA dispute whether some sort of transfer-based 

exclusion for hazardous secondary materials is 

necessary to comport with the concept of 

 ̳discard,‘ that issue also is best addressed once 

EPA finally decides whether to eliminate the 

transfer-based exclusion it adopted in the 2008 

Rule.‖). 

 

7

.Tailoring Rule, 75 Fed.Reg. at 31,594 

(―PSD preconstruction permitting requirements 

do not generally preclude a source from 

continuing actual construction that began before 

the source was a source required to obtain a PSD 

permit.‖). 

 

8. The petitioners seem to concede that the 

hardship they face is remediable. Br. for Pet'rs 

26 (―[E]ven if the plants commence construction 

under the illegal Exemption, upon a reversal of 

the Exemption they can be required to source 

more sustainably grown fuel and/or comply with 

more stringent limits requiring full operation and 

maintenance of their pollution control 

equipment.‖). 

 

9. While Sahu avers that ―many‖ of the six 

facilities ―have not commenced construction,‖

he does not identify any of the ―many.‖ Sahu 

Decl. 20. 

 

10. In discussing the hardship prong, the 

majority declares that ―we have no idea how 

many biogenic carbon dioxide sources have 

been constructed since March 2012.‖ Maj. Op. 

407–08. This assertion is way off the mark. The 

petitioners themselves could name only one 

source meeting the Deferral Rule exception. 

Their expert's affidavit isolated only eight, six of 

which might not fit the exception. See supra p. 

423 & n. 9. If the petitioners have not been able 

to establish severe harm by now, we should not 

attempt to fill the jurisdictional gap in their 

challenge. 

 

11. As an aside—my colleagues do not 

address this point—what the petitioners 

complain of is not massive deregulation but 

instead temporary maintenance of the status quo. 

Significantly, the harm they allege does not 

come from unregulated biogenic CO2 emissions; 

rather, their primary alleged harm is that the 

Deferral Rule allows for the less strict regulation 

of emissions of certain non-CO2 pollutants 

(such as particulate matter and nitrogen oxides) 

from biogenic CO2 emitters. But if a stationary 

source—biogenic or otherwise—has the 

potential to emit above-threshold amounts of a 

regulated pollutant other than GHGs, it must 

obtain a PSD permit and meet BACT not only 

for the pollutant(s) that made it subject to PSD 

but also for all pollutants emitted over certain 

thresholds (even for a pollutant not emitted in a 

quantity sufficient by itself to subject the source 

to PSD). See Deferral Rule, 76 Fed.Reg. at 

43,493. While the Deferral Rule exempts from 

PSD a source whose biogenic CO2 emissions 

alone make it subject to PSD, it does not allow a 

source with the potential to emit above-threshold 

quantities of other regulated pollutants to escape 

regulation. See id. at 43,492 (―This deferral 

applies only to biogenic CO2 emissions and 

does not affect non-GHG pollutants or other 

GHGs ... emitted from the combustion of 

biomass fuel.‖). The Deferral Rule's effect on 

PSD applicability, then, is minimal: as noted 

earlier, it simply preserves the pre-July 2011 

status quo. Before July 1, 2011, a stationary 

source was subject to PSD if it had the potential 

to emit certain quantities of pollutants other than 

CO2. Under the Tailoring Rule, a source that 

was not otherwise subject to PSD became, as of 

July 1, 2011, subject to PSD based on its GHG 

emissions. The Deferral Rule exempts from this 
Ctr. for Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401 (D.C. Cir., 2013) 

 - 20 - 

set of newly-regulated sources those subject to 

PSD based only on their biogenic CO2 

emissions. Preserving the status quo for this 

limited category for—now—only a matter of 

months does not constitute ―immediate and 

significant‖ hardship. 

 

12. As my colleagues note, Maj. Op. 407–

08, the Deferral Rule makes it optional for 

permitting authorities (e.g., states) not to 

regulate biogenic CO2 emissions during the 

deferral period but they identify only a single 

state—Massachusetts—that continues to 

regulate biogenic CO2 emissions. Maj. Op. 407–

08. That only one permitting authority has seen 

fit to regulate biogenic CO2 emissions during 

the life of the Deferral Rule underscores the 

reasonableness of EPA's decision to study the 

science before imposing burdensome regulatory 

obligations to achieve uncertain and potentially 

negligible benefits. 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

RESEARCH TRIANGLE PARK, NC 2n11 

SEP '13 2013 OFFICE OF 

AIR QUALITY PLANNING 

AND STANDARDS 

MEMORANDUM 

SUBJECT: 

FROM: 

TO: 

Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air 

Act Sections llO(a)(l) and 110(·a·)Y(.2). . .l 

Stephen D. Page, Director M \4J.A tt.; 

Office of Air Quality Planning an Standards .· 

Regional Air Directors, Regions 1 - 10 

The purpose of this memorandum is to distribute non-binding guidance from the U.S. Environmental 

Protection Agency on the requirements of certain provisions of the Clean Air Act (CAA) titled, 

"Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 

llO(a)(l) and 110(a)(2)." 

Sections llO(a)(l) and 110(a)(2) of the CAA direct each state to develop and submit to the EPA a plan 

that provides for the implementation, maintenance, and enforcement of the national ambient air quality 

standards (NAAQS). 1 Moreover, section llO(a)(l) requires that each state make a new SIP submission 

within 3 years after promulgation of a new or revised primary or secondary NAAQS, for approval into 

the existing SIP to assure that the SIP meets the applicable requirements for such new or revised 

NAAQS. This type of SIP submission is commonly referred to as an "infrastructure SIP." 

The attached guidance, developed with the benefit of extensive written comments from state and local 

air agencies on a draft version, provides advice on the development of infrastructure SIPs for the 2008 

ozone NAAQS, the 2010 nitrogen dioxide NAAQS, the 2010 sulfur dioxide NAAQS, and the 2012 fine 

particulate matter (PMz.s) NAAQS, as well as infrastructure SIPs for new or revised NAAQS 

promulgated in the future. This guidance does not address CAA section 110(a)(2)(D)(i)(I), which 

concerns interstate pollution transport affecting attainment and maintenance of the NAAQS. The EPA 

expects to issue guidance in the future with respect to section 110(a)(2)(D)(i)(I). 

Section 11 O(a)(l) directs each state to make an infrastructure SIP submission to the EPA within 3 years 

of promulgation of a new or revised NAAQS, 2 after reasonable notice and public hearing. 3 Section 

1 These CAA sections and this guidance may also apply, as appropriate under the Tribal Authority Rule in 40 CFR Part 49, to 

an Indian tribe that receives a determination of eligibility for treatment as a state for purposes of administering a tribal air 

quality management program under section llO(a) of the CAA. This memorandum and the guidance uses the term "air 

agency" to refer to a state or tribe that develops and submits an infrastructure SIP, except when quoting or paraphrasing a 

CAA section or EPA regulation that uses the term "state." 

2 The Administrator may specify a shorter period. 

lntemet Address (URL) • http://www.epa.gov 

Rec:ycled/Recyclable • Printed w~h Vege!able OH Based Inks on Recycled Paper (Minimum 25% Postconsumer) 
11 O(a)(2) specifies the substantive elements that infrastructure SIP submissions need to address, as 

appropriate, for EPA approval. Many of the elements listed in section 11 0( a)(2) relate to the general 

information and authorities that constitute the basic structural requirements for a SIP needed for an air 

agency's overall air quality management program to be effective- elements that have been required to 

be in place since the initial SIPs were submitted in response to the CAA of 1970. Other elements listed 

in section 110(a)(2) relate to SIP requirements that have been added in successive amendments to the 

CAA since 1970. Although the 110(a)(2) requirements do not explicitly distinguish among the different 

criteria pollutants or different NAAQS, the structural SIP provisions needed to meet these requirements 

may depend on the particular new or revised NAAQS whose promulgation has triggered the requirement 

for a new infrastructure SIP submission. For example, a new or revised NAAQS may be accompanied 

by new ambient monitoring requirements tailored to that NAAQS or new prevention of significant 

deterioration program requirements. Overall, the requirement for a new infrastructure SIP submission 

provides an opportunity for the air agency, the public and the EPA to review the basics of the air quality 

management program in light of each new or revised NAAQS. 

We acknowledge that air agencies continue to express concerns about the EPA's issuance oftimely 

guidance to assist their efforts to implement a new or revised NAAQS. Our goal in providing the 

attached guidance document is to provide air agencies with recommendations in order to develop 

infrastructure SIPs that will meet the CAA requirements for recently promulgated NAAQS. The EPA 

will work to assist air agencies in the development and completion of these infrastructure SIPs so they 

may be submitted as soon as possible. 

The attached guidance is also intended to provide comprehensive recommendations for infrastructure 

SIPs for new or revised NAAQS promulgated in the future. Our expectation is that this guidance will 

help to address the timeliness concerns expressed by air agencies and serve as guidance to address 

infrastructure SIP requirements for future NAAQS. As a result, the EPA intends that air agencies may 

continue to rely on this guidance for preparing infrastructure SIP submissions necessary for future 

NAAQS revisions, until such time as this guidance is supplemented or replaced by future guidance. 

Moreover, as air agencies and the EPA develop and act upon infrastructure SIP submissions through 

notice-and-comment rulemaking, the EPA anticipates that additional clarity will be provided about the 

best means to meet the statutory requirements. 

Although this guidance provides recommendations for the development and review of infrastructure 

SIPs for multiple NAAQS, we are not recommending whether an air agency should or should not make 

a single infrastructure SIP submission to address requirements for more than one NAAQS 

simultaneously. Air agencies should consult with the appropriate EPA Regional Office for advice 

regarding combining infrastructure SIP submissions for multiple NAAQS. 

Please share this guidance with the air agencies in your Region. 

For Further Information 

If you have any questions concerning this guidance, please contact H. Lynn Dail, at (919) 541-2363, 

dail.lynn@epa.gov, or Lisa Sutton, at (919) 541-3450, sutton.lisa@epa.gov. 

Attachment 

3 The EPA's rules provide that a public hearing must be offered by the air agency, but is only required if a request is made. 
Guidance on Infrastructure State Implementation 

Plan (SIP) Elements under Clean Air Act 

Sections 110(a)(1) and 110(a)(2) 

September 2013
i 

List of Selected Acronyms and Abbreviations

AERMOD American Meteorological Society/EPA Regulatory Model

AMTIC Ambient Monitoring Technology Information Center

AQI Air Quality Index

CAA Clean Air Act

CMAQ Community Multi-scale Air Quality [Model]

CAMx Comprehensive Air Quality Model with Extensions

CFR Code of Federal Regulations

CSAPR Cross-State Air Pollution Rule

EPA Environmental Protection Agency

EGU Electric generating unit

FIP Federal implementation plan

FR Federal Register

GHG Greenhouse gases

IBR Incorporation by reference

NAAQS National Ambient Air Quality Standards

NO2 Nitrogen dioxide

NOAA National Oceanic and Atmospheric Administration

NPS National Park Service

NSR New Source Review

OAQPS Office of Air Quality Planning and Standards

Pb Lead

PM2.5 Fine particulate matter

ppm Parts per million

PSD Prevention of significant deterioration

RAVI Reasonably Attributable Visibility Impairment

SHL Significant harm level

SIP State implementation plan (also, if indicated by the context, a tribal 

implementation plan)

SO2 Sulfur dioxide

SSM Startup, shutdown, and malfunction

TAR Tribal Authority Rule

TIP Tribal Implementation Plan

UBR Unavoidable breakdown rule

μg/m3 Micrograms per cubic meter
ii

Table of Contents

I. Introduction ...........................................................................................................................1

II. General Guidance on Infrastructure SIPs ..........................................................................4

Which elements of CAA 110(a)(2) affect infrastructure SIPs? .........................................4

Developing and Submitting an Infrastructure SIP Submission .........................................5

Certifications...................................................................................................................7

Determining Completeness of an Infrastructure SIP Submission.................................... 10

Effect of a Federal Implementation Plan on an Infrastructure SIP .................................. 12

III. Guidance on Individual Infrastructure SIP Elements .................................................... 18

Element A – Section 110(a)(2)(A): Emission Limits and Other Control Measures......... 18

Element B – Section 110(a)(2)(B): Ambient Air Quality Monitoring/Data System ........ 22

Element C – Section 110(a)(2)(C): Programs for Enforcement of Control 

Measures and for Construction or Modification of Stationary Sources................ 23

Elements D(i)(I) and (II) – Section 110(a)(2)(D)(i): Interstate Pollution Transport......... 30

Element D(ii) – Section 110(a)(2)(D)(ii): Interstate Pollution Abatement and 

International Air Pollution.................................................................................. 35

Element E – Section 110(a)(2)(E): Adequate Resources and Authority, Conflict of 

Interest, and Oversight of Local Governments and Regional Agencies............... 39

Element F – Section 110(a)(2)(F): Stationary Source Monitoring and Reporting............ 45

Element G – Section 110(a)(2)(G): Emergency Episodes............................................... 47

Element H – Section 110(a)(2)(H): SIP Revisions ......................................................... 51

Element I – Section 110(a)(2)(I): Plan Revisions for Nonattainment Areas.................... 52

Element J – Section 110(a)(2)(J): Consultation with Government Officials, Public 

Notification, and PSD and Visibility Protection.................................................. 52

Element K – Section 110(a)(2)(K): Air Quality Modeling and Submission of 

Modeling Data ................................................................................................... 55

Element L – Section 110(a)(2)(L): Permitting Fees........................................................ 56

Element M – Section 110(a)(2)(M): Consultation and Participation by Affected 

Local Entities..................................................................................................... 56
1 

Guidance on Infrastructure State Implementation Plan (SIP) Elements under 

Clean Air Act Sections 110(a)(1) and 110(a)(2) 

I. Introduction

Under Clean Air Act (CAA) sections 110(a)(1) and 110(a)(2), each state1 is required to 

submit a state implementation plan (SIP)

2 that provides for the implementation, maintenance, 

and enforcement of each primary or secondary national ambient air quality standard (NAAQS). 

Moreover, section 110(a)(1) and section 110(a)(2) require each state to make this new SIP 

submission within 3 years after promulgation of a new or revised NAAQS.3 This type of SIP 

submission is commonly referred to as an “infrastructure SIP.”

Section 110(a)(1) generally directs each state to submit an infrastructure SIP to the U.S. 

Environmental Protection Agency after reasonable notice and public hearing.4 Section 110(a)(2) 

specifies the substantive elements these submissions need to address, as applicable, for the 

EPA’s approval. The subsections of section 110(a)(2) list a variety of requirements, some of 

which address authority, some of which address substantive requirements, and some of which 

consist of a combination of authority and substantive requirements. The conceptual purpose of an 

 

1 These CAA sections and this guidance may also apply, as appropriate under the Tribal Authority Rule (TAR) in 40 

CFR part 49, to an Indian tribe that receives a determination of eligibility for treatment as a state for purposes of 

administering a tribal air quality management program under section 110(a) of the CAA. Tribes should look to the 

TAR and engage their respective EPA Regional Offices in discussing how this guidance may impact the 

development and approvability of their tribal implementation plans (TIPs). We encourage states to provide outreach 

and engage in discussions with tribes about their SIPs as they are being developed.

2 In the CAA and in this guidance, “plan,” “SIP,” and “TIP” may, depending on context, refer either to (i) all or part 

of the existing state (or tribal) implementation plan (i.e., the collection of all submissions previously approved by the 

EPA as meeting CAA requirements) or (ii) a submission that adds to or modifies the existing plan as directed by 

section 110(a)(l). 

3 The Administrator may specify a shorter period.

4 The EPA rules provide that a public hearing must be offered by the air agency but is only required if a request is 

made.
2 

infrastructure SIP submission is to assure that the air agency’s5 SIP contains the necessary 

structural requirements for the new or revised NAAQS, whether by establishing that the SIP 

already contains the necessary provisions, by making a substantive SIP revision to update the 

SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity for the 

responsible air agency, the public, and the EPA to review the basic structural requirements of the 

air agency’s air quality management program in light of each new or revised NAAQS.

This non-binding guidance6 provides recommendations for air agencies’ development 

and the EPA's review of infrastructure SIPs for the 2008 ozone primary and secondary NAAQS,7

the 2010 primary nitrogen dioxide (NO2) NAAQS,8 the 2010 primary sulfur dioxide (SO2) 

NAAQS,9 and the 2012 primary fine particulate matter (PM2.5) NAAQS,

10 as well as 

 

5 This guidance uses the term “air agency” to generally refer to a state, territory, or tribe that develops and submits 

an infrastructure SIP or TIP, except when quoting or paraphrasing a CAA section or a EPA regulation that uses the 

term “state.” 

6 None of the recommendations contained in this guidance are binding or enforceable against any person, and no 

part of the guidance or the guidance as a whole constitutes final agency action that could injure any person or 

represent the consummation of agency decision making. Only final actions taken to approve or disapprove SIP 

submissions that implement any of the recommendations in this guidance would be final actions for purposes of 

CAA section 307(b). Therefore, this guidance is not judicially reviewable. This document is not a rule or regulation, 

and the guidance it contains may not apply to a particular situation based upon the individual facts and 

circumstances. This guidance does not change or substitute for any law, regulation, or other legally binding 

requirement and is not legally enforceable. The use of non-mandatory language such as “guidance,” “recommend,” 

“may,” “should,” and “can” is intended to describe the EPA’s policies and recommendations. Mandatory 

terminology such as “must” and “required” is intended to describe controlling legal requirements under the terms of 

the CAA and the EPA regulations. Neither such language nor anything else in this document is intended to or 

does establish legally binding requirements in and of itself.

7 The EPA revised the levels of the primary and secondary 8-hour ozone standards to 0.075 parts per million (ppm). 

40 CFR 50.15. 73 FR 16436 (March 27, 2008). 

8 The EPA revised the primary NO2 standard by adding a 1-hour level of 100 parts per billion (ppb), while retaining 

the previous annual primary and secondary standards. 40 CFR 50.11(b) and (f). 75 FR 6474 (February 9, 2010). The 

EPA has also recently reviewed the air quality criteria and the secondary NAAQS for nitrogen oxides and sulfur

oxides and retained the current NO2 and SO2 secondary standards, 77 FR 20218 (April 3, 2012). 

9 On June 2, 2010, the EPA established a new 1-hour SO2 standard at a level of 75 ppb. 40 CFR 50.17. This rule also 

provided for the automatic future revocation of the previous annual and 24-hour SO2 NAAQS for most areas 

following 1 year after designation under the new NAAQS. 40 CFR 50.4(e). The previous 3-hour secondary standard 

remains in place indefinitely. 40 CFR 50.5. 75 FR 35520 (June 22, 2010). The EPA has also recently reviewed the 

air quality criteria and the secondary NAAQS for nitrogen oxides and sulfur oxides and retained the current NO2 and 

SO2 secondary standards, 77 FR 20218 (April 3, 2012). 

10 The EPA revised the annual PM2.5 standard by lowering the level to 12.0 micrograms per cubic meter (μg/m3

). 78 

FR 3086 (January 15, 2013).
3 

infrastructure SIPs for new or revised NAAQS promulgated in the future. As a result, air 

agencies may continue to rely on this guidance for developing infrastructure SIPs for future new 

or revised NAAQS until this guidance is supplemented or replaced by future guidance. This 

guidance does not address section 110(a)(2)(D)(i)(I), which concerns interstate pollution 

transport affecting attainment and maintenance of the NAAQS. The EPA expects to issue 

guidance in the future with respect to this section of the CAA. 

Section II of this document provides general guidance for the development of 

infrastructure SIPs, and section III presents guidance on the individual elements (and subelements) that constitute an infrastructure SIP. 
4 

II. General Guidance on Infrastructure SIPs

Which elements of CAA 110(a)(2) affect infrastructure SIPs? 

Infrastructure SIP elements are addressed in portions of section 110(a)(2) of the CAA. 

Under this section, states are required to develop and maintain an air quality management 

program that meets various basic structural requirements, including, but not limited to: 

enforceable emission limitations; an ambient monitoring program; an enforcement program; air 

quality modeling capabilities; and adequate personnel, resources, and legal authority.

Although, as stated in section I of this document, infrastructure SIPs are required to be 

submitted within 3 years after the promulgation of a new or revised NAAQS, the EPA interprets 

section 110(a)(2) to exclude two elements that could not be governed by the 3-year submission 

deadline of section 110(a)(1). Both these elements pertain to part D, in title I of the CAA, which 

addresses SIP requirements and submission deadlines for designated nonattainment areas for a 

NAAQS. Therefore, the following elements are considered by the EPA to be outside the scope of 

infrastructure SIP actions: (1) section 110(a)(2)(C) to the extent that it refers to permit programs 

(known as “nonattainment new source review”) under part D; and (2) section 110(a)(2)(I) in its 

entirety, which addresses SIP revisions for nonattainment areas. Both these elements pertain to 

SIP revisions that collectively are referred to as a nonattainment SIP or an attainment plan, which 

would be due by the dates statutorily prescribed under subparts 2 through 5 under part D, 

extending as far as 10 years following area designations for some elements. Because the CAA 

directs states to submit these plan elements on a separate schedule, the EPA does not believe it is 

necessary for states to include these elements in the infrastructure SIP submission due 3 years 

after adoption or revision of a NAAQS. While an infrastructure SIP submission is not expected 

to meet the requirements for a nonattainment SIP, the scope of an infrastructure SIP does not 

exclude geographical areas that have been designated nonattainment for the new or revised 

NAAQS or an earlier NAAQS for the same pollutant. Sections 110(a)(1) and 110(a)(2) reflect 

the congressional intent that each air agency have an air quality program, covering all 
5 

geographical areas of the state, that includes the specified air agency authorities, requirements, 

and activities. 

The infrastructure SIP submission requirement does not move up the date for any

required submission of a part D plan for areas designated nonattainment for the new NAAQS. 

However, in order to cover all parts of the state or area of Indian country, an infrastructure SIP 

submission may reference pre-existing SIP emission limits or other rules contained in part D 

plans for the predecessor to the relevant new or revised NAAQS. It may also include recently 

adopted emission limits that are intended to be part of the not-yet-submitted part D plan for the 

new or revised NAAQS. To avoid confusion about the legal effect of the EPA’s action on an 

infrastructure SIP submission, we intend to make clear in each final action that EPA approval of

the infrastructure SIP submission is solely with regard to whether the submission meets 

particular infrastructure SIP required elements (as opposed to nonattainment SIP elements). This 

means that the EPA may approve a submission as meeting the air agency’s obligation under 

section 110(a)(1) and 110(a)(2) stemming from the particular new or revised NAAQS, without 

necessarily determining whether the submission meets the applicable requirements for 

nonattainment SIPs under part D of title I of the CAA for the same or any other NAAQS. An 

approval on this basis will make the referenced or newly submitted SIP emission limits or other 

rules federally enforceable, and will make clear that there has been no disapproval of an 

applicable required SIP submission and thus that there is no federal implementation plan (FIP) 

obligation stemming from CAA section 110(a)(1) or (2).11 

Developing and Submitting an Infrastructure SIP Submission

Upon the promulgation of a new or revised NAAQS, the infrastructure SIP process 

should begin with the air agency’s review of the adequacy of its existing SIP provisions for 

 

11In general, a finding by the EPA that an air agency has failed to submit a complete SIP or an action by the EPA to 

disapprove a SIP or SIP element initiates a FIP obligation, if the submission is required by the CAA. Mandatory 

sanctions would not apply under CAA section 179 because the failure to submit a SIP is neither with respect to a 

submission that is required under CAA title I part D nor in response to a SIP call under CAA section 110(k)(5). 

Some of the sections of this guidance document address FIP implications on individual elements more specifically.
6 

purpose of meeting the infrastructure SIP requirements for the new or revised NAAQS. In order 

to develop an infrastructure SIP submission, an air agency may cite existing EPA-approved 

provisions and/or adopt new or revised statutory authorities and regulations, as necessary, in 

order to address each element of the infrastructure SIP. Further, with respect to a given NAAQS, 

an air agency may elect to make multiple submissions; each addressing some but not all elements 

or sub-elements of section 110(a)(2) so long as those submissions meet all of the infrastructure 

requirements in the aggregate. An air agency may also elect to make one submission to address 

infrastructure SIP requirements for multiple NAAQS, if it represents the submission as such 

during its adoption process and in its transmittal to the EPA. Of course, such a submission to 

address multiple NAAQS should establish how the air agency believes that the SIP meets each of 

the requirements of section 110(a)(2), as applicable, for each of the relevant NAAQS.

It is important that the SIP submission demonstrate the authority of the responsible air 

agency (or agencies, if responsibility for implementation is shared, e.g., between state and local 

agencies) to implement the new or revised NAAQS that has triggered the need for the 

infrastructure SIP submission. This can be an issue for approval if an older underlying legal 

authority enumerates specific ambient standards by pollutant, indicator, averaging period, level, 

and/or date of promulgation but does not include the new or revised NAAQS in its list. Air 

agencies are encouraged to discuss any situations of this type with their respective EPA Regional 

Offices. 

We encourage each air agency to consult with the appropriate EPA Regional Office, to 

consider the completeness of the submission, and to consider how the submission satisfies the 

applicable EPA regulations governing approval of infrastructure SIP submissions in 40 CFR 

part 51 ("Requirements for Preparation, Adoption, and Submittal of Implementation Plans"). The

regulations are referenced in this document, some with overlapping provisions across subparts, 

and include the following: 

• Subpart A – Air Emissions Reporting Requirements

• Subpart F – Procedural Requirements

• Subpart G – Control Strategy

• Subpart H – Prevention of Air Pollution Emergency Episodes
7 

• Subpart I – Review of New Sources and Modifications

• Subpart J – Ambient Air Quality Surveillance

• Subpart K – Source Surveillance

• Subpart L – Legal Authority

• Subpart M – Intergovernmental Consultation

• Subpart O – Miscellaneous Plan Content Requirements

• Subpart P – Protection of Visibility

• Subpart Q – Reports 

Once the air agency has made one or more infrastructure SIP submissions, the EPA will 

evaluate the submission(s) for completeness. The EPA's criteria for determining completeness of 

a SIP submission are codified at 40 CFR part 51 appendix V and are discussed in a later 

subsection of this guidance. An air agency’s familiarity with the EPA's regulatory completeness 

criteria will benefit the air agency during the process of developing an approvable submission.

The EPA’s review can be expedited if a SIP submission includes a detailed explanation 

of how the existing EPA-approved SIP in combination with any newly submitted provisions 

meets each of the applicable requirements of section 110(a)(2). The EPA expects the 

submissions to include a description of the correlation between each infrastructure element and 

an equivalent set of statutory, regulatory, and/or non-regulatory provisions, as appropriate, that 

are part of or (for some elements) are referred to by the existing SIP or the new submission. 

(Refer to section III for more detail on submission requirements for each individual element.)

When an air agency’s infrastructure SIP submission more clearly identifies the CAA element(s) 

being met by the SIP and how they are met, the EPA can more easily determine whether the 

submission is complete and approvable with respect to that element.

Certifications

Where an air agency determines that the provisions in or referred to by its existing EPAapproved SIP are adequate with respect to a given infrastructure SIP element (or subelement) 

even in light of the promulgation of a new or revised NAAQS, the air agency may make a SIP 

submission in the form of a certification. This type of infrastructure SIP submission may, e.g., 
8 

take the form of a letter to the EPA from the Governor or her/his designee containing a 

"certification" (or declaration) that the already-approved SIP contains or references provisions 

that satisfy all or some of the requirements of section 110(a)(2), as applicable, for purposes of 

implementing the new or revised NAAQS. In such a case, the submission would not need to 

include a paper copy of the relevant pre-existing provisions (e.g., rules or statutes).12 Rather, the 

certification submission should provide citations to the state, local, or tribal statutes, regulations, 

or non-regulatory measures, as appropriate, in or referenced by the already EPA-approved SIP 

that meet particular infrastructure SIP element requirements and should include an explanation as 

to how those existing provisions meet the relevant requirements. The air agency should consult 

with its EPA Regional Office on the wording of this type of infrastructure SIP submission prior 

to making its submission. As for any other SIP submission, an air agency (unless the EPA has 

approved a request for parallel processing) would need to provide reasonable notice and 

 

12 In contrast, where an air agency’s infrastructure SIP submission seeks the EPA’s approval of or references a new

provision (e.g., a rule or statute) that has not already been approved, or submitted for approval, into the SIP, a 

complete SIP submission should include at least one hard copy and an exact duplicate electronic version of the 

adopted provisions (unless otherwise agreed to by the air agency and the Regional Office). Memorandum dated 

April 6, 2011, from Janet McCabe, titled “Regional Consistency for the Administrative Requirements of State 

Implementation Plans and the Use of Letter Notices.” The EPA is investigating means to provide for states a method 

to transmit SIP submissions electronically with no requirement for paper copy submissions.
9 

opportunity for comment prior to submitting a certification SIP submission to the EPA.13 This 

"reasonable notice and public hearing" requirement for approvable infrastructure SIP 

submissions appears at sections 110(a)(1) and the introductory text of section 110(a)(2), and it 

has much the same wording as the more generally applicable procedural requirement at 

section 110(l) of the CAA ("Plan Revisions"). See CAA sections 110(a)(1) and (2) and 110(l). 

Compliance with this procedural requirement is verified through an additional certification by 

the air agency that a public hearing (if one was requested) was held in accordance with the EPA's 

regulatory procedural requirements for public hearings.14 See 40 CFR 51.102 and 40 CFR 

part 51, appendix V, paragraph 2.1(g). 

 

13 The EPA regulations at 40 CFR part 51 appendix V provide that a public hearing must always be offered and that 

a hearing must be held if requested. The EPA has received comment that when all of the elements in an existing 

infrastructure SIP were previously subject to a public comment process, including the opportunity for public 

hearing(s), when they were first submitted for the EPA's approval and incorporation into the SIP, no public 

comment requirements should apply to a “certification” infrastructure submission. The EPA believes this suggested 

interpretation is inconsistent with the plain text of section 110(a)(1) of the CAA. Section 110(a)(1) first provides that 

“[e]ach State shall, after reasonable notice and public hearings, adopt and submit to the Administrator, within 

3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a [primary NAAQS] 

(or any revision thereof) ... a plan [i.e., infrastructure SIP] which provides for implementation, maintenance, and 

enforcement of such primary standard.” The clause “after reasonable notice and public hearings” is most naturally 

read as imposing that procedure on the immediately following phrase, “adopt and submit,” the direct object of which 

is the infrastructure SIP itself. The suggested interpretation would instead apply the phrase “after reasonable notice 

and public hearings” to SIP revisions submitted before the promulgation of the new or revised primary NAAQS, 

despite the complete absence of a reference to those earlier SIP revisions in section 110(a)(1). Any possible residual 

ambiguity is removed by the last sentence of section 110(a)(1), which requires an infrastructure SIP for a secondary 

NAAQS to be considered (unless a separate public hearing is provided) “at the hearing required by the first sentence 

of this paragraph.” The only possible interpretation of this sentence is that there must be an opportunity for public 

hearing for the infrastructure SIPs for both the primary and secondary NAAQS. This is a reasonable interpretation 

because it informs the public that the SIP is being revised and allows for comment as to whether the air agency’s 

earlier approved regulations also satisfy the relevant obligation stemming from the promulgation of the new or 

revised NAAQS. Furthermore, the next footnote explains that the EPA has recently clarified procedures for 

providing notice and opportunity for comment that reduce the burden on air agencies while still assuring adequate 

notice to the public.

14 Additional guidance regarding how an air agency may submit a SIP or a SIP revision can be found in a 

memorandum dated April 6, 2011, from Janet McCabe, Deputy Assistant Administrator, Office of Air and

Radiation, to Regional Administrators, titled "Regional Consistency for the Administrative Requirements of State 

Implementation Plans and the Use of 'Letter Notices'." Refer also to a memorandum dated Nov. 22, 2011, jointly 

from Janet McCabe, Deputy Assistant Administrator, Office of Air and Radiation, and Becky Weber, Director, Air 

and Waste Management Division, Region 7, to Air Division Directors, Regions 1-10, titled "Guidelines for 

Preparing Letters Submitting State Implementation Plans (SIPs) to EPA and for Preparing Public Notices for SIPs." 

These guidance memos identify certain streamlining approaches that are available to an air agency, depending on the 

situation.
10 

As with any SIP submission, the EPA’s review can be expedited if a SIP certification 

submission includes a detailed explanation of how the existing SIP meets each of the applicable

requirements of section 110(a)(2). This should include a description of the correlation between 

each infrastructure element and an equivalent set of statutory, regulatory, and/or non-regulatory 

provisions, as appropriate, that are part of or are referenced by the existing SIP. When an air 

agency’s infrastructure certification submission more clearly identifies the CAA element(s) 

being met by the SIP and how they are met, the EPA can more easily determine whether the 

submission is complete and approvable with respect to that element.

Determining Completeness of an Infrastructure SIP Submission

Section 110(k)(2) directs the EPA to take final action on a SIP submission within 1 year

after the submission is determined to be complete under section 110(k)(l). If the EPA makes an 

affirmative finding that a SIP submission is complete, the date of the finding establishes the 

"completeness date" for the submission. If, however, the EPA makes no affirmative 

completeness finding, then the submission is deemed complete by operation of law on the date 

6 months after the submission date. A finding that an infrastructure SIP submission is complete

does not necessarily mean that the submission is approvable; the completeness review only 

addresses whether the air agency has provided information sufficient to commence formal EPA 

review for approvability. Refer to 40 CFR part 51 appendix V ("Criteria for Determining the 

Completeness of Plan Submissions").

Historically, when reviewing infrastructure SIP submissions, the EPA has operated on the 

basis that the elements and sub-elements of section 110(a)(2) for a given NAAQS are, for the 

most part, severable.15 The EPA may elect to make a finding of failure to submit in whole or in 

part, based upon whether a state has made a complete infrastructure SIP submission for the 

relevant elements of section 110(a)(2). For a state that has not made any infrastructure SIP 

 

15 See, e.g., 76 FR 81371 (December 28, 2011), “Approval and Promulgation of Implementation Plans; Texas;

Infrastructure and Interstate Transport Requirements for the 1997 Ozone and the 1997 and 2006 PM2.5 NAAQS, 

Final Rule,” where the EPA approved severable portions of infrastructure SIP revisions submitted by Texas.
11 

submission, the EPA generally will make a finding with respect to all of the relevant elements.16

For a state that has made a SIP submission but whose submission is incomplete for some of the 

relevant elements, the EPA generally will issue a finding of failure to submit only with respect to 

those elements. This separation makes clear what mandatory EPA duty subsequently exists with 

respect to each element or subelement. If the EPA has made separate findings as to the 

completeness of submissions for two or more elements (and sub-elements), the 12-month 

statutory deadline for EPA action to approve or disapprove the elements for which the air agency 

has made a complete submission and the 24-month statutory deadline for EPA action to 

promulgate FIPs for incomplete elements would apply separately. The EPA intends to continue 

its practice of acting on infrastructure SIP elements together or separately, as appropriate. 

Any SIP submission is deemed by operation of law to be complete six months after 

submission, unless the EPA has before that date made an affirmative finding that the submission 

is complete or incomplete. Any inconsistency between the scope of the submission as described 

in the pre-submission public notice of the SIP submission and the actual submission, or between 

the description of the scope of the submission in the transmittal letter to the EPA and the actual 

substantive coverage of the submission can create ambiguity as to which infrastructure SIP 

elements in fact have been submitted and thus are capable of becoming complete by operation of 

law (and triggering a deadline for the EPA’s action) and which have in fact not yet been 

submitted.17 To provide clarity for all parties, air agencies should be very clear and accurate in 

the wording of their public notices and transmittal letters. It is also advisable for the air agency to 

discuss this wording with its EPA Regional Office before submission. On its part, an EPA 

Regional Office, in receipt of a submission with any inconsistencies of the type described, should 

consider steps it can take or ask the air agency to take prior to the six-month point in order to 

avoid the creation of ambiguity or an incorrect result as to which SIP elements have actually 

 

16 Under the TAR, a tribe is not subject to deadlines for certain planning requirements (including submission of 

infrastructure SIPs). See 63 FR 7254 (Feb. 12, 1998) for more information.

17 The EPA’s experience is that the existence of a FIP for PSD or regional haze may increase the risk of such 

inconsistencies occurring inadvertently. FIP-related aspects are discussed in more detail in the next section of this 

guidance.
12 

been submitted and are complete and consequently subject to a statutory deadline for the EPA 

action.

Section 2.3 of 40 CFR part 51 appendix V waives certain completeness requirements if

the EPA has granted an air agency request for parallel processing of the submission. Under the 

parallel processing approach, the EPA proposes to approve a draft SIP submission so that final 

approval can be given more quickly after the final adoption of any new measures as state, local, 

or tribal law and conclusion of the public comment process normally required for any SIP 

submission. The EPA intends to grant requests for parallel processing of infrastructure SIP 

submissions if (1) the only missing elements of completeness are final state adoption of rules or 

other provisions and/or conclusion of the public comment process for the SIP submission, 

including evidence thereof as specified in section 2.3 of appendix V, and (2) the schedule 

provided by the air agency for the conclusion of the adoption process and/or the public comment 

process for the SIP submission is reasonably expeditious.

18 In such a case, the EPA generally 

would also either make a finding of completeness for the submission or allow it to become 

complete by operation of law. If both these conditions are not met, the EPA will not grant the 

parallel processing request. However, the EPA generally will not make a finding of failure to 

submit a complete SIP but may be required to do so if under a court order.

Effect of a Federal Implementation Plan on an Infrastructure SIP

The CAA directs states to submit SIPs to the EPA for approval. In some cases, and for 

various reasons, the EPA may have previously determined that an air agency had not satisfied a 

SIP requirement, and so accordingly promulgated a FIP to address the gap in the SIP. The 

infrastructure SIP process can be affected when an air agency is currently subject to a FIP that is 

related to an infrastructure SIP element. Therefore, this section describes the potential impact of 

pre-existing FIPs on the infrastructure SIP process. This explanation is relevant not only for air 

 

18 With regard to the 1992 EPA Memorandum from John Calcagni, Air Quality Management Division, OAQPS, to 

EPA Air Division Directors, Regions I through X, “State Implementation Plan (SIP) Actions Submitted in Response 

to Clean Air Act (Act) Deadlines,” October 29, 1992, note that the EPA no longer considers the section titled 

“Requests for Parallel Process to Meet Act Deadlines” to be its guidance for infrastructure SIPs that are submitted 

with requests for parallel processing.
13 

agencies that currently have a FIP in effect but also for air agencies that may be subject to a FIP 

in the future. 

The EPA’s obligation to promulgate a FIP is set out in section 110(c) of the CAA. A FIP 

may be triggered if the EPA takes any of the following actions: (1) the EPA finds that a state has 

failed to make a required SIP submission; (2) the EPA finds that a required submission was 

incomplete; or (3) the EPA disapproves a required SIP submission in whole or in part. If the EPA

takes one of these actions, section 110(c) obligates the EPA to promulgate a FIP within 2 years

of the action, a deadline that is commonly referred to as a "FIP clock." In order to remove the 

EPA's FIP obligation, the state must make a SIP submission that meets the applicable CAA 

requirements and is approved by the EPA prior to the EPA’s promulgation of a FIP. Whenever 

the EPA promulgates a FIP for a state air agency, the FIP rulemaking will identify the specific 

CAA provisions that required the promulgation of the FIP, and the FIP will be codified in the 

appropriate section of 40 CFR part 52. 

Under the TAR, a tribe is not subject to deadlines for planning requirements (including 

submission of infrastructure SIPs).

19 In general, the concept of failure to submit a complete 

implementation plan does not apply in tribal situations, and there is no FIP clock started if a tribe 

has not submitted an infrastructure TIP. Under the TAR, in the absence of an approved tribal 

implementation plan the EPA will promulgate a FIP for one or more infrastructure SIP elements 

when and if it is necessary and appropriate to do so. For example, the EPA has promulgated new 

source review FIPs to govern permitting of sources in Indian country.

If the EPA has promulgated a FIP, then this means that the EPA has previously 

determined that the air agency’s SIP did not meet some CAA requirement as of the date of 

promulgation of that FIP. While the intent and effect of the FIP is to achieve the same air quality 

protection as the SIP should have achieved, it is the EPA’s interpretation of sections 110(a)(1) 

and 110(a)(2) that the EPA cannot give “credit” for the FIP when determining whether an air 

agency has met any later obligations under these sections.

 

19 See 63 FR 7254 (February 12, 1998) for more information on the TAR.
14 

As an example of a FIP that affects the infrastructure SIP submission process, we note 

that, for various reasons, several states do not have EPA-approved major source preconstruction 

permit programs in their SIPs for prevention of significant deterioration (PSD) as required by 

part C of title I of the CAA. The EPA has promulgated a set of PSD rules which establish 

authority for the EPA (or an air agency to which the EPA has delegated authority to administer 

the federal PSD program)20 to issue preconstruction permits to major stationary sources in any 

area not covered by a PSD program in a SIP.21 The EPA has also promulgated FIPs for each area 

without a SIP-approved PSD program, indicating that this set of federal PSD rules applies in that 

area.

22 Such a PSD FIP may be relevant to infrastructure Element C, Element J, Element D(i)(II), 

and the portion of Element D(ii) related to notification to other states. As another example, the 

EPA has promulgated full or partial FIPs to address reasonably attributable visibility impairment 

(RAVI) and regional haze for some air agencies.23 A RAVI FIP or a regional haze FIP may be 

relevant to Element D(i)(II). These linkages are further discussed in the section pertaining to 

each of these elements.

The infrastructure SIP process will vary to some extent depending on whether or not the 

air agency’s SIP submission purports to, and actually does, satisfy infrastructure SIP 

requirements that are currently being met by means of a FIP, as explained in the following 

paragraphs. 

Consider an air agency that is currently subject to a FIP that is relevant to certain 

infrastructure SIP elements makes a submission and states in a general way in the transmittal 

letter that the submission satisfies all elements of CAA section 110(a)(2), or if it specifically 

states that the submission satisfies the elements to which the FIP is relevant, the EPA would 

 

20 The EPA is planning on extending the opportunity for delegation of new source review permitting to qualified 

tribes.

21 See 40 CFR 52.21; Prevention of Significant Deterioration of Air Quality. 

22 See, e.g., 40 CFR 52.738 for the PSD program applicable to sources in Illinois.

23 Some of these regional haze FIPs relied on the Cross-State Air Pollution Rule (CSAPR), which was subsequently 

vacated by the U.S. Court Appeals for the D.C. Circuit. EME Homer City Generation, L.L.P. v. EPA, 696 F.3d 7 

(D.C. Cir. 2012). The Supreme Court has accepted the EPA’s petition for it to review the D.C. Circuit’s decision. 

Air agencies should consult with their EPA Regional Offices regarding the current status of this litigation and the 

implications if any for infrastructure SIP submissions.
15 

evaluate whether the submission, in fact, contains existing or new substantive provisions to 

address the section 110(a)(2) requirement presently covered by the FIP. If the submission does 

not substantively address the elements or sub-elements presently covered by the FIP, then the 

EPA Regional Office should encourage the air agency to clarify its intentions as to which 

elements have been submitted. The air agency might then clarify that it has made no submission 

for certain elements, in which case the EPA would not make a finding of complete submission 

for those elements and those elements could not become complete by operation of law. (The 

EPA may make a finding of failure to submit for those elements.) In the absence of such a 

clarification, the EPA Regional Office should determine that the air agency has failed to make a 

complete submission for those elements. Such a finding generally would create an obligation for 

the EPA to adopt a FIP within 24 months. However, based on the PSD FIP example and to the 

extent that the SIP deficiency is addressed by continuing to implement the existing PSD FIP, the 

EPA would have no additional FIP obligation under section 110(c) and the air agency would not 

have to take any further action for the current FIP-based permitting process to continue 

operating. Mandatory sanctions would not apply under CAA section 179 because such a finding 

of failure to submit a complete SIP was made neither with respect to a submission that is 

required under CAA title I part D nor in response to a SIP call under CAA section 110(k)(5). 

To provide further clarity, consider how the following three scenarios may prompt 

differing EPA actions. 

First scenario. Under this scenario, the transmittal letter for the infrastructure SIP 

submission makes clear that the submission is not intended to satisfy certain elements that can be

addressed by continuing to apply the FIP. In this situation, the EPA would make a completeness 

finding that extends only to the SIP elements actually submitted by the air agency, and a finding 

that other relevant applicable elements were not submitted.24 The EPA would be required to take 

action only on the elements that were submitted, within 12 months after those elements have 

been determined to be complete. The overall infrastructure SIP would not be approvable with 

 

24 If, instead, the submission that clearly addressed only some required elements has become complete at the 6-

month point by operation of law, the EPA would still consider the air agency to not have made a complete

submission for the missing elements.
16 

respect to the elements that were not submitted, and thus the EPA could only partially approve 

the overall infrastructure SIP.

25 

Second scenario. Under the second scenario, suppose the air agency makes a SIP 

submission that references the existence of a PSD FIP and asserts that the existence of the FIP is 

a sufficient basis for EPA approval of the submission with respect to these elements. The EPA 

would not consider the existence of the PSD FIP, even if referenced in the submission, as 

meeting completeness or approvability criteria for these elements. This is because a FIP is not a 

state plan and thus cannot serve to satisfy the state’s obligation to submit a SIP. The EPA’s 

action on the SIP submission would indicate that the air agency has not met the underlying 

statutory obligations in section 110(a)(2) with respect to Elements C and J. However, when the 

SIP deficiency is being addressed by the existing PSD FIP, the EPA would have no additional 

FIP obligation under section 110(c) and the state would not have to take any further action for

the current FIP-based permitting process to continue operating. In this example, the EPA may be 

able to approve a state-developed SIP later, if the air agency develops and submits a SIP meeting 

all statutory and regulatory requirements relevant to Elements C and J. 

Third scenario. Under this scenario, the transmittal letter for the infrastructure SIP 

submission explicitly or implicitly indicates that the submission is intended to satisfy all required 

elements (including the elements that may be addressed by continuing to apply the existing PSD 

FIP), and the 6-month point has passed without any clarification by the air agency or any finding 

by the EPA Regional Office regarding completeness. In this situation, the EPA will generally 

treat the submission as having been intended to address all the required elements and to be 

complete for all elements. The 12-month clock for EPA action on the submission would apply to 

all elements and the EPA would proceed to disapprove the submission for the same elements 

with respect to the subject NAAQS that were previously addressed in the context of earlier 

NAAQS by the FIP. However, similar to the first scenario in which the SIP deficiency has 

 

25 Note: Because an infrastructure SIP is not a required plan submission under part D of title I of the CAA, 

disapproval of (or a finding of failure to submit) an infrastructure SIP or element thereof does not trigger mandatory 

sanctions under CAA section 179, unless the submission was required in response to a SIP call under 

section 110(k)(5) of the CAA.
17 

already been addressed, to the extent that the existing FIP addresses the deficiency, the EPA 

would have no additional FIP obligation under section 110(c) and the state would not have to 

take any further action for the current FIP-based permitting process to continue operations. As in 

the first scenario, the EPA may be able to approve a state-developed SIP later, if the air agency 

develops and submits a SIP meeting all statutory and regulatory requirements relevant to 

Elements C and J. 

For some state air agencies and some sources in Indian country, there are RAVI or 

regional haze FIPs in place that may be relevant to the subelement of Element D(i)(II) related to 

interference with measures by another state to protect visibility. This subelement is sometimes 

referred to as the “visibility transport” prong or simply, as “prong 4.” While fully approved 

RAVI and regional haze SIPs can be relied upon in satisfying this subelement, as explained later 

in this document, it may be possible in some cases for the element to be satisfied even if there is 

a FIP in place. Air agencies in this situation should read the section on Element D(i)(II) and 

consult with their respective EPA Regional Offices on this aspect of their infrastructure SIP 

submission. 

If a new submission in fact does address the substance of the element or subelement 

covered by a FIP, the EPA would review the submission and may approve the infrastructure SIP. 

The EPA may also withdraw the FIP that had been addressing that element or subelement for 

previous NAAQS, if all relevant CAA requirements are met by the SIP.
18 

III. Guidance on Individual Infrastructure SIP Elements

The EPA interprets section 110(a)(1) and section 110(a)(2) to require infrastructure SIP 

submissions to meet the elements of section 110(a)(2), as applicable. As described in section II, 

the EPA interprets the portion of section 110(a)(2)(C) that pertains to a permitting program that 

applies to nonattainment NSR within nonattainment areas, and the requirements of 

section 110(a)(2)(I) that pertain to the specific requirements for attainment plans for designated 

nonattainment areas, to be outside the scope of the infrastructure SIP requirements because of the 

separate statutory schedules for area designations and submission of attainment plans provided 

elsewhere in the CAA. With respect to the remaining elements of section 110(a)(2), 

subsections (A) through (M), the CAA imposes an obligation on states to address those elements, 

as appropriate, within the 3-year infrastructure SIP submission deadline. This section provides 

recommendations to air agencies about how to make infrastructure SIP submissions to meet 

these remaining relevant elements, as applicable. 

Element A – Section 110(a)(2)(A): Emission Limits and Other Control Measures

Each such plan shall – 

(A) include enforceable emission limitations and other control measures, means, 

or techniques (including economic incentives such as fees, marketable permits, 

and auctions of emissions rights), as well as schedules and timetables for 

compliance, as may be necessary or appropriate to meet the applicable 

requirements of this Chapter. 

To satisfy Element A, an air agency’s submission should identify existing EPA-approved 

SIP provisions or new SIP provisions that the air agency has adopted and submitted for EPA 

approval that limit emissions of pollutants relevant to the subject NAAQS, including precursors 

of the relevant NAAQS pollutant where applicable. Emissions limitations and other control 

measures needed to attain the NAAQS in areas designated nonattainment for that NAAQS will 

be due on a different schedule from the section 110 infrastructure elements and will be reviewed 

and acted upon with regard to approvability for the specific purposes of such an attainment plan 

under CAA title I part D through a separate process at a later time. See “Which elements of CAA 
19 

110(a)(2) affect infrastructure SIPs?” in section II of this guidance for additional discussion of 

this distinction.

There are two issues that relate to Element A for which we are providing general 

guidance. These are whether air agencies would need to correct the following in order for the 

EPA to approve their infrastructure SIP submissions: (1) previously approved emissions 

limitations that may treat startup, shutdown, and malfunction (SSM) events inconsistently with 

the CAA as interpreted by our longstanding guidance on excess emissions (the EPA’s SSM 

Policy) and more recently by multiple courts; and (2) previously approved SIP provisions for 

"director's variance" or "director's discretion" that purport to allow revisions to or exemptions 

from SIP emission limitations with limited public process or without requiring further approval 

by the EPA.26 The guidance provided here is consistent with the EPA interpretations articulated 

in provisions in several recent EPA final actions on SIPs.

27, 28 

In recent infrastructure SIP actions, the EPA has drawn an important distinction with 

respect to SSM issues and director’s discretion issues in this particular context. The EPA does 

not interpret section 110(a)(2) to require air agencies and the EPA to address potentially deficient 

 

26 For further description of EPA's SSM Policy, see, e.g., a memorandum dated September 20, 1999, titled, "State 

Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown," from 

Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance, and Robert Perciasepe, 

Assistant Administrator for Air and Radiation. Also, the EPA issued a proposed action on February 12, 2013, titled 

“State Implementation Plans: Response to Petition for Rulemaking; Findings of Substantial Inadequacy; and SIP 

Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction.” 

This rulemaking responds to a petition for rulemaking filed by the Sierra Club that concerns SSM provisions in 

39 states’ SIPs. It clarifies and restates the EPA’s SSM SIP policy.

27 See, e.g., a SIP call issued to Utah (72 FR 21639, Apr. 18, 2010) concerning treatment of malfunction events 

under Utah's "unavoidable breakdown rule" (UBR). The EPA determined that Utah’s SIP was substantially 

inadequate because its UBR allowed operators of CAA-regulated facilities to avoid enforcement actions when they 

suffer an unexpected and unavoidable equipment malfunction. In this SIP call, the EPA called on Utah to 

promulgate a new UBR that conforms to the EPA’s interpretation of the CAA. Litigants maintained that the SIP call 

was arbitrary and capricious and asked the Tenth Circuit Court to vacate it. The Court denied the petition for review 

of the Utah SIP call. U.S. Magnesium, LLC v. EPA, U.S. Court of Appeals, No. 09-1269, January 14, 2011. 

28 As another example that presents the EPA's position on infrastructure SIPs with respect to this issue, see the 

preamble language in the final rule published in the Federal Register on July 13, 2011 (76 FR 41075), "Approval 

and Promulgation of Air Quality Implementation Plans; Illinois; Indiana; Michigan; Minnesota; Ohio; Wisconsin; 

Infrastructure SIP Requirements for the 1997 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards." In 

section II of the preamble, the EPA described at length the position summarized in this guidance regarding existing 

provisions related to excess emissions during periods of SSM and existing provisions related to "director's variance" 

or "director's discretion." 
20 

pre-existing SIP provisions of these types in the context of acting on an infrastructure SIP 

submission. The EPA considers this a reasonable interpretation of the CAA in such a context. 

The EPA notes that it has alternative tools in the CAA to address existing SIP deficiencies of this 

type, in appropriate circumstances.

However, any “new” provisions in the infrastructure SIP submission that are relevant to 

SSM (e.g., any newly created enforcement discretion provisions, affirmative defense provisions, 

or special emissions limitations that apply during SSM periods but that have not already been 

approved by the EPA) should be consistent with the EPA’s policy on what types of SSM 

provisions are permissible in SIPs under the CAA. For instance, new provisions as part of an 

approvable SIP submission cannot allow an air director the discretion to determine whether an 

instance of excess emissions is a violation of an emission limitation, because such a 

determination could bar the EPA and citizens from enforcing applicable requirements. Similarly, 

new provisions in a SIP for the exercise of enforcement discretion with regard to SSM events 

may only apply to state or tribal government personnel so that they do not limit enforcement by 

the EPA or citizens. Excess emissions, including those occurring during SSM periods, might 

prevent attainment and maintenance of the NAAQS and compliance with other applicable CAA 

requirements. The EPA views all periods of excess emissions as violations of the applicable 

emission limitation. Therefore, if an infrastructure SIP contains provisions that have not already 

been approved by the EPA, and that impermissibly exempt from enforcement excess emissions 

that may occur at a facility during SSM periods or that otherwise are inconsistent with the EPA’s 

interpretation of the CAA as outlined in its SSM Policy, the EPA will not propose to fully

approve the submission as meeting section 110(a)(1) and (2) requirements. 

With regard to “director’s discretion” to revise emission limits, any "new" provisions in 

the infrastructure SIP submission (i.e., provisions that have not already been approved by the 

EPA) should be consistent with the EPA's interpretation of the CAA as expressed in its policy 

regarding director's discretion.

29 

 

29 See 77 FR 34309 and 34311 (June 11, 2012). “Approval and Promulgation of Implementation Plans; Tennessee;

110(a)(1) and (2) Infrastructure Requirements for the 1997 Annual and 2006 24-Hour Fine Particulate National

Ambient Air Quality Standards, Proposed Rule.”
21 

The EPA will continue to consider for approval, as it has in recent final SIP actions,30

SIPs that provide for a limited affirmative defense to civil penalties for excess emissions 

occurring during properly demonstrated and documented malfunction periods.

In summary, the EPA in recent final actions on infrastructure SIP submissions has 

maintained that the CAA does not require that new infrastructure SIP submissions address 

existing potentially inadequate provisions concerning SSM or director's discretion in order to be 

approved as meeting the CAA section 110(a)(1) and (2) requirements triggered by the new or 

revised NAAQS. The EPA’s stated position has been that it can approve an infrastructure SIP 

submission, even if the infrastructure SIP may incorporate by reference previously approved SIP 

provisions that are or may not be consistent with the EPA’s SSM Policy and its policy on 

director’s discretion to revise emission limits. The EPA articulated this position in a number of 

infrastructure SIP actions taken in 2011, noting in the preambles for those actions that existing 

provisions for SSM and director's discretion may be dealt with separately, outside the context of 

acting on an air agency’s new infrastructure SIP submission.31 However, if an air agency submits 

an infrastructure SIP submission that would create a new SIP provision related to SSM that is 

inconsistent with the EPA’s interpretation of the requirements of the CAA, the EPA may 

disapprove it. We intend to continue this practice and affirm it as part of this guidance.

 

30 See 75 FR 68989 at 68992 (November 10, 2010), “Approval and Promulgation of Implementation Plans; Texas: 

Excess Emissions During Startup, Shutdown, Maintenance, and Malfunction Activities.” In Luminant Generation 

Co. v. EPA, No. 10-60934, 2012 WL 4841615 (5th Cir. 2012), the Court upheld the EPA’s approval of an 

affirmative defense for malfunctions and disapproval of an affirmative defense provision in a SIP submission that 

pertained to “planned activities,” which included startup, shutdown, and maintenance. The EPA disapproved this 

provision, in part because it provided an affirmative defense for maintenance. The Court rejected challenges to the 

EPA’s disapproval of this provision, holding that under Chevron step 2, the EPA’s interpretation of the CAA was 

reasonable. See also the Federal Register notice signed on February 12, 2013, restating the EPA’s policy on 

affirmative defense provisions and proposing 36 SIP calls to correct affirmative defense and other SSM-related SIP 

provisions.

31 As one example of preamble language that presents the EPA's position on infrastructure SIPs with respect to this 

issue, see the final rule published in the Federal Register on July 13, 2011 (76 FR 41075), "Approval and 

Promulgation of Air Quality Implementation Plans; Illinois; Indiana; Michigan; Minnesota; Ohio; Wisconsin; 

Infrastructure SIP Requirements for the 1997 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards." In 

section II of the preamble, the EPA described at length the position summarized here regarding existing provisions 

related to excess emissions during periods of SSM and existing provisions related to "director's variance" or 

"director's discretion." 
22 

Element B – Section 110(a)(2)(B): Ambient Air Quality Monitoring/Data System

Each such plan shall – 

(B) provide for establishment and operation of appropriate devices, methods, 

systems, and procedures necessary to – 

 (i) monitor, compile, and analyze data on ambient air quality, and 

 (ii) upon request, make such data available to the Administrator. 

To meet Element B requirements, the best practice for an air agency submitting an

infrastructure SIP would be to submit, for inclusion into the SIP (if not already part of the SIP),

the statutory or regulatory provisions that provide the air agency or official with the authority 

and responsibility to perform the actions listed in the bullets below along with a narrative 

explanation of how the provisions meet the requirements of this element.32 

• Monitor air quality for the relevant NAAQS pollutant(s) at appropriate locations in 

accordance with the EPA's ambient air quality monitoring network requirements. See

the EPA's Ambient Monitoring Technology Information Center (AMTIC) website, 40 

CFR part 53 ("Ambient Air Monitoring Reference and Equivalent Methods"), and 40 

CFR part 58 ("Ambient Air Quality Surveillance"). See also 40 CFR 51.190 

(referencing 40 CFR part 58).33 

• Submit data to the EPA's Air Quality System (AQS) in a timely manner in 

accordance with 40 CFR part 58. Under 40 CFR part 58, subpart B ("Monitoring 

Network"), for example, see 40 CFR 58.16 ("Data submittal and archiving 

requirements").

• Provide to the EPA Regional Office information regarding air quality monitoring 

activities, including a description of how the air agency has complied with monitoring 

requirements, and an explanation of any proposed changes to the network. 

 

32 The EPA recognizes that some air agencies may have general authorizing provisions that do not specifically 

enumerate specific activities but do implicitly authorize the air agency to perform such activities, in which case 

inclusion of those provisions would meet the intent of this best practice.

33 Note that despite the recent reorganization of 40 CFR part 58 without a corresponding conforming update of the 

cross-reference to part 58 in 40 CFR 51.190, all requirements under part 58 must still be met.
23 

Submission of annual monitoring network plans consistent with the EPA's ambient air 

monitoring regulations is one way of providing this information. Under 40 CFR 

part 58, subpart B, see, e.g., 40 CFR 58.10 ("Annual monitoring network plan and 

periodic network assessment").

• Obtain the EPA’s approval of any planned changes to monitoring sites or to the 

network plan, consistent with applicable requirements in 40 CFR 58.14 (“System 

Modification”). 

If an air agency chooses not to include the relevant statute or regulation in its SIP, then 

the air agency should provide a reference or citation to the authority provisions along with a 

narrative explanation of how the provisions meet the requirements of this element, as well as a 

copy of the relevant authority to accompany the SIP as required by 40 CFR 51.231.

For any new or revised NAAQS, the infrastructure SIP submission should provide

assurance that the state will meet changes in monitoring requirements related to the new or 

revised NAAQS.

Element C – Section 110(a)(2)(C): Programs for Enforcement of Control Measures and for 

Construction or Modification of Stationary Sources.

Each such plan shall – 

(C) include a program to provide for the enforcement of the measures described 

in subparagraph (A), and regulation of the modification and construction of any 

stationary source within the areas covered by the plan as necessary to assure that 

national ambient air quality standards are achieved, including a permit program 

as required in parts C and D of this Subchapter. 

This element consists of three sub-elements; enforcement, state-wide regulation of new 

and modified minor sources and minor modifications of major sources; and preconstruction 

permitting of major sources and major modifications in areas designated attainment or 

unclassifiable for the subject NAAQS as required by CAA title I part C (i.e., the major source 
24 

PSD program).34,35 While this section outlines the general requirements for approvability of an 

infrastructure SIP with respect to Element C, air agencies previously subject to FIPs with respect 

to this element for major source PSD in the context of earlier NAAQS have the option, as 

discussed in more detail below and in Section II: “Which elements of CAA 110(a)(2) affect 

infrastructure SIPs?”, to remain subject to those FIPs as the remedy for infrastructure SIP 

deficiencies for a new or revised NAAQS. 

Enforcement: To satisfy this subelement, an infrastructure SIP submission should identify 

the statutes, regulations, or other provisions in the existing SIP (or new provisions that are 

submitted as part of the infrastructure SIP to be incorporated into the SIP) that provide for 

enforcement of those emission limits and control measures that the air agency has identified in 

its submission for purposes of satisfying Element A (Emissions limits and other control 

measures). 

Regulation of minor sources and minor modifications: To satisfy the subelement for preconstruction regulation of the modification and construction of minor stationary sources and the 

minor modification of major stationary sources, an infrastructure SIP submission should identify

the existing EPA-approved SIP provisions and/or include new provisions that govern the minor 

source pre-construction program that regulates emissions of the relevant NAAQS pollutant(s).

The EPA rules addressing SIP requirements for pre-construction regulatory programs that apply 

to minor sources and minor modifications are at 40 CFR sections 51.160 through 51.164. 

 

34 The terms "major" and "minor" categorize a stationary source or a modification of a stationary source, for NSR 

applicability purposes, in terms of an annual emissions rate (tons per year) or change in annual emission rate for a 

pollutant. The pre-construction minor NSR program generally applies to minor stationary sources and minor 

modification projects at major stationary sources. A major “stationary source” is defined in the applicable PSD or 

nonattainment NSR regulations. Some air agencies exempt small minor sources and modifications from preconstruction regulatory requirements. 

35 As explained in section II of this document, the EPA considers evaluation of permit provisions that implement 

CAA title I part D (the major source nonattainment NSR program) to generally be outside the scope of infrastructure 

SIP actions. Hence, to address the sub-element regarding major source permitting, only the major source permitting 

program applicable in areas designated attainment or unclassifiable is an issue. In contrast, because part D does not 

impose any special requirements for permitting of minor sources in nonattainment areas, the infrastructure SIP due 

3 years after a new or revised NAAQS should address Element C with regard to minor sources in unclassifiable, 

attainment, and nonattainment areas, without regard to designation.
25 

Preconstruction PSD permitting of major sources:36 To satisfy the subelement regarding 

the PSD program required by CAA title I part C, an infrastructure SIP submission should 

demonstrate that one or more air agencies has the authority to implement a comprehensive PSD 

permit program under CAA title I part C, for all PSD-subject sources located in areas that are 

designated attainment or unclassifiable for one or more NAAQS. The infrastructure SIP

submission should also identify the existing SIP provisions that govern the major source PSD 

program. As explained in more detail below, to be approvable the infrastructure SIP submission 

should also address any new or revised PSD permitting program requirements for which the 

deadline for SIP submissions has passed as of the date of EPA’s proposed action on the 

infrastructure submission. 

The SIP permitting provisions that implement CAA title I part C (the PSD program) 

govern preconstruction review and permitting of any new or modified major stationary sources 

of air pollutants regulated under the CAA (as well as any precursors to the formation of those 

pollutants when identified for regulation by the Administrator) in areas designated as attainment 

or unclassifiable. The EPA rules providing the minimum requirements for approvable PSD 

programs can be found generally at 40 CFR 51.166 (general provisions for PSD programs 

approved in SIPs) and 40 CFR 51.307 (specific provisions pertaining to new source review for 

potential impacts on air quality related values in Class I areas).

The EPA interprets Element C to mean that each infrastructure SIP submission for a 

particular NAAQS would need to demonstrate that the air agency has a complete PSD permitting

program in place covering the requirements for all regulated NSR pollutants, including 

greenhouse gases (GHG), in order to demonstrate that the SIP meets Element C.37 

Element C requires that each infrastructure SIP contain a permitting program “as required 

by part C.” CAA title I part C is applicable to all pollutants subject to regulation under the CAA. 

See, e.g., CAA section 165(a)(4). There is no specific language in the last clause of Element C 

 

36 The discussion here of the PSD portion of Element C also applies in full to the PSD portion of Element J.

37 See, e.g., 77 FR 64737 (October 23, 2012), “Partial Approval and Partial Disapproval of Air Quality State

Implementation Plans; Nevada; Infrastructure Requirements for Ozone and Fine Particulate Matter.”
26 

that restricts its application to only those provisions of CAA title I part C that pertain to the 

particular new or revised NAAQS addressed by the particular infrastructure SIP action. Because 

the scope of CAA title I part C is comprehensive (covering all pollutants subject to regulation 

under the CAA, including GHG), the EPA likewise reads the unrestricted reference to CAA 

title I part C in Element C to mean that this provision has the same scope as CAA title I part C 

itself. Thus, an infrastructure SIP submission for any one of the recently revised NAAQS must 

be “comprehensive” in that it would need to meet all CAA title I part C requirements for other 

regulated NSR pollutants as well.

The broad scope of Element C with respect to major source PSD permitting raises the 

question of how the EPA will proceed when the timing of requirements for multiple, related SIP 

submissions (e.g., for mandatory PSD SIP revisions) impacts the ability of the air agency and the 

EPA to address certain substantive issues in the infrastructure SIP submission in a reasonable 

fashion. It is appropriate for the EPA to take into consideration the timing of related 

requirements for SIP submissions in determining what an air agency can reasonably be expected

to have addressed in an infrastructure SIP submission for a NAAQS at the time when the EPA 

acts on such submission. The EPA does not consider it reasonable to interpret Element C to

require the EPA to propose to disapprove an air agency’s infrastructure SIP submission because 

the air agency had not submitted a PSD permitting program revision that was not yet due as of 

the date of EPA’s proposed action. Because it would be unreasonable to propose such a 

disapproval, the EPA likewise does not consider it reasonable to take final disapproval action

under such circumstances. In other words, the EPA interprets these CAA sections to allow the 

EPA to approve an infrastructure SIP submission for the major source PSD permitting 

subelement of Element C (and Element J) provided that the EPA has already approved or is 

simultaneously approving the air agency’s SIP submission(s)38 with respect to all structural PSD

permitting program revision requirements that were due under the EPA regulations or the CAA 

on or before the date of the EPA’s proposed action on the infrastructure SIP submission. To 

adopt a different approach, by which the EPA could not act on an infrastructure SIP or at least 

 

38 These submissions may be submitted separately or together with the infrastructure SIP submission on which the 

EPA is proposing action.
27 

could not approve an infrastructure SIP whenever there was any impending revision to the PSD 

permitting program regulations required by another collateral rulemaking action, would result in

regulatory gridlock and make it impracticable or impossible for the EPA to act on infrastructure 

SIPs if the EPA had recently revised its PSD permitting regulations but the submission required 

by such revisions was not yet due. The EPA believes that such an outcome would be an 

unreasonable reading of the statutory process for the infrastructure SIPs contemplated in 

sections 110(a)(1) and (2).

Consequently, the EPA generally plans to proceed as follows. The EPA may propose to 

approve an infrastructure SIP submission with respect to the major source PSD permitting 

subelement of Element C if the air agency has submitted, in a timely manner, all structural PSD 

permitting program provisions for which the SIP submission deadline has passed as of the date 

of the proposed approval.39 Subject to consideration of public comments on the proposed action, 

the EPA believes it may proceed to fully approve an infrastructure submission with respect to 

Element C if all such structural PSD permitting program submissions have been or are being 

simultaneously fully approved into the SIP. The EPA does not intend to treat any structural PSD 

permitting program requirement for which the SIP submission deadline falls after the date of the 

EPA’s proposed action on the infrastructure SIP as a required criterion for approval of the 

infrastructure SIP. The PSD permitting program revisions treated in this manner may include not 

only those related to the new or revised NAAQS whose promulgation has triggered the need for 

a new infrastructure SIP submission but also those related to any other regulated NSR pollutants 

as required by CAA title I part C and 40 CFR part 51.166.40 

If an air agency lacks a PSD permitting program in its existing EPA-approved SIP 

addressing all regulated NSR pollutants, and it is already subject to a FIP, then major stationary 

 

39 Structural PSD program provisions include provisions necessary for the PSD program to address all regulated 

sources and NSR pollutants, including GHG. Structural PSD program provisions do not include provisions which 

under 40 CFR 51.166 are at the option of the air agency, such as the option for air agencies to provide 

grandfathering of complete permit applications with respect to the 2012 PM2.5 NAAQS. 

40 See, e.g., “Approval and Promulgation of Implementation Plans; Mississippi: New Source Review – Prevention of 

Significant Deterioration; Fine Particulate Matter (PM2.5) National Ambient Air Quality Standards,” 77 FR 59095 

(September 26, 2012), a recent infrastructure SIP approval action that addressed a state’s PSD SIP status with 

respect to the 2008 PM2.5 NSR Rule.
28 

sources within its jurisdiction are subject to the federal PSD permitting requirements in 40 

CFR 52.21. Some air agencies are subject to a FIP for PSD permitting of all regulated NSR 

pollutants, and fewer air agencies are subject to a FIP for PSD permitting that is limited to 

particular pollutants (such as GHG). For sources subject to a pre-existing FIP for PSD 

permitting, either the EPA Regional Office issues PSD permits or, in instances where federal 

authority is delegated by the EPA Regional Office to it, the state or local air agency issues the 

PSD permits under the FIP (and tribes might be delegated in the same manner in the future). The 

EPA recognizes that some states have indicated a preference to operate under an EPAadministered PSD permitting program. Many air agencies have for some time been delegated the 

authority to implement a PSD FIP program. Other states have implemented their SIP-approved 

PSD permitting program. When an area is already subject to a FIP for PSD permitting (whether 

or not a state, local, or tribal air agency has been delegated federal authority to implement the 

PSD FIP), the air agency may choose to continue to rely on the PSD FIP to have permits issued 

pursuant to the FIP. If so, the EPA could not fully approve the infrastructure SIP submission with 

respect to Element C; however, the EPA anticipates that there would be no adverse consequences 

to the air agency or to sources from this lack of full approval of the infrastructure SIP. 

Mandatory sanctions would not apply under CAA section 179 because the failure to submit a 

PSD SIP is neither with respect to a submission that is required under CAA title I part D, nor in 

response to a SIP call under CAA section 110(k)(5). This relationship between a pre-existing FIP 

and the EPA’s action on an infrastructure SIP element is also explained in section II of this 

document. 

The EPA has maintained that the CAA allows the EPA to approve infrastructure SIP

submissions that do not implement the NSR Reform Rules promulgated mainly in 2002.

41 We 

articulated this position in a number of infrastructure SIP final actions taken in 2011, noting in 

the preambles for those actions that existing SIP provisions for PSD programs that have not 

 

41 The NSR rules have undergone a series of improvements over many years. Significant reforms were promulgated 

in a rulemaking commonly referred to as the "2002 NSR Reform Rules," which were published in the Federal 

Register at 67 FR 80186 (December 31, 2002).
29 

addressed the NSR Reform Rules may be dealt with separately, outside the context of acting on a 

state’s infrastructure SIP.42

Air agencies may wish to reduce the need to amend their major source PSD rules after 

each new or revised NAAQS by writing them so that their coverage of pollutants and NAAQS

automatically updates with the promulgation of a new or revised NAAQS, and/or so that the 

specific PSD program requirements automatically update to stay matched with the federal PSD 

program requirements in 40 CFR 52.21. Depending on state or tribal law provisions, it may be 

possible to do one or both of these through the use of “rolling” incorporation by reference (IBR). 

An advantage of the rolling IBR approach is that it enables air agencies to quickly implement 

requirements of the CAA that may be immediately applicable to regulated sources upon the 

effective date of the new or revised NAAQS and before the deadline for air agencies to make 

infrastructure SIP submissions to the EPA. For example, one of the PSD program requirements is 

the requirement under section 165(a)(3) of the CAA that a permit applicant show it will not 

cause or contribute to a violation of any NAAQS. This requirement generally43 applies to any 

NAAQS in effect on the date a PSD permit decision is issued and is not deferred until an 

infrastructure SIP submission is due. Where permissible under state or tribal law, a rolling IBR 

approach is advisable to enable air agencies to implement this type of CAA requirement 

immediately upon the effective date of a NAAQS, thus ensuring that there is a mechanism in 

place for regulated sources in the state or an area of Indian country to meet CAA requirements 

resulting from a new or revised NAAQS as soon as it becomes applicable. 

 

42 As one example of the preamble language that presents the EPA's position on infrastructure SIPs with respect to 

the issue of NSR Reform, see the final rule published in the Federal Register on July 13, 2011, "Approval and 

Promulgation of Air Quality Implementation Plans; Illinois; Indiana; Michigan; Minnesota; Ohio; Wisconsin; 

Infrastructure SIP Requirements for the 1997 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards." 76 

FR 41075. In section II of the preamble, the EPA applied the described position to existing provisions for PSD 

programs in light of the "NSR Reform Rules" that we promulgated mainly in 2002; see 67 FR 80186 (Dec. 31, 

2002). 

43 In some circumstances, the EPA has authorized “grandfathering” of pending PSD permit applications. See 78 FR 

3086, January 15, 2012.
30 

Elements D(i)(I) and (II) – Section 110(a)(2)(D)(i): Interstate Pollution Transport

Each such plan shall – 

(D) contain adequate provisions – 

 (i) prohibiting, consistent with the provisions of this subchapter, any source or 

other type of emissions activity within the State from emitting any air pollutant in 

amounts which will – 

 (I) contribute significantly to nonattainment in, or interfere with maintenance by, 

any other State with respect to any such national primary or secondary ambient 

air quality standard, or 

 (II) interfere with measures required to be included in the applicable 

implementation plan for any other State under part C of this subchapter to 

prevent significant deterioration of air quality or to protect visibility. 

 

Section 110(a)(2)(D)(i) contains two subsections: (D)(i)(I) and (D)(i)(II).

Section 110(a)(2)(D)(i)(I) addresses any emissions activity in one state that contributes 

significantly to nonattainment, or interferes with maintenance, of the NAAQS in another 

state. The EPA sometimes refers to these requirements as prong 1 (significant 

contribution to nonattainment) and prong 2 (interference with maintenance). Neither 

prong 1 nor prong 2 is addressed in this guidance. This guidance does not modify any 

prior statements by the EPA with respect to prongs 1 and 2 and does not address, discuss, 

or in any way alter any requirements set forth in either prong. 

Element D(i)(II) requires SIPs to include 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 or from interfering with measures required of any 

other state to protect visibility (referring to visibility in Class I areas). The EPA sometimes refers 

to these requirements under subsection 110(a)(2)(D)(i)(II) as prong 3 (interference with PSD) 

and prong 4 (interference with visibility protection). The EPA interprets section 110(a)(2) to 

require air agencies to address prong 3 and prong 4 as part of each infrastructure SIP submission.

Prong 3: Under section 110(a)(2)(D)(i)(II), SIPs would need to have provisions 

prohibiting emissions that would interfere with measures required to be in any other air agency’s 
31 

SIP under part C of the CAA to prevent significant deterioration of air quality. Because part C 

requires an air agency’s PSD permitting program to address all pollutants subject to regulation 

under the CAA, the EPA interprets prong 3 to mean that the infrastructure SIP submission should 

have provisions to prevent emissions of any regulated pollutant from interfering with any other 

air agency’s comprehensive PSD permitting program, in addition to the new or revised NAAQS 

that is the subject of the infrastructure submission. Moreover, the infrastructure SIP should

address the potential for such interference by sources throughout the jurisdiction of the air 

agency.

One way to meet prong 3 (”interference with PSD”), specifically with respect to those 

in-state sources and pollutants that are subject to PSD permitting, is through an air agency’s 

confirmation in its infrastructure SIP submission that new major sources and major modifications 

are subject to a comprehensive EPA-approved PSD permitting program in the SIP that applies to 

all regulated NSR pollutants and that satisfies the requirements of the EPA’s PSD 

implementation rule(s), as discussed above for purposes of Element C. This is because in order 

to be approved by the EPA, a major source PSD permitting program would need to fully 

consider source impacts on air quality in other states.

In-state sources not subject to PSD for any one or more of the pollutants subject to 

regulation under the CAA because they are in a nonattainment area for a NAAQS related to 

those particular pollutants may also have the potential to interfere with PSD in an attainment or 

unclassifiable area of another state. The EPA cannot ignore this potential when reviewing an 

infrastructure SIP for this prong. The EPA will consider and may rely on an air agency’s EPAapproved nonattainment NSR provisions in determining whether a SIP satisfies prong 3 with 

respect to sources located in areas subject to nonattainment NSR for any one or more pollutants 
32 

and thus not subject to PSD permitting for those NAAQS pollutants. 44 SIP revisions to address 

nonattainment NSR requirements for any new or revised NAAQS are, however, due on a 

separate timeframe under section 172(b) of the CAA and are not subject to the timeframe for 

submission of infrastructure SIPs under section 110(a)(1). Therefore, a fully approved 

nonattainment NSR program with respect to any previous NAAQS may generally be considered 

by the EPA as adequate for purposes of meeting the requirement of prong 3 with respect to 

sources and pollutants subject to such program. Also, if an air agency makes a submission 

indicating that it issues permits pursuant to 40 CFR part 51 appendix S in a nonattainment area 

because a nonattainment NSR program for a particular NAAQS pollutant has not yet been 

approved by the EPA for that area, that permitting program may generally be considered by the 

EPA as adequate for purposes of meeting the requirements of prong 3 with respect to sources and 

pollutants subject to such program. Such reliance for infrastructure purposes would not constitute 

approval under CAA title I part D, and the EPA will explain this in the preambles to any

proposed or final actions that rely on this rationale to support the conclusion that prong 3 is 

satisfied. 

For an air agency without an EPA-approved major source PSD program and/or, where 

required, an EPA-approved nonattainment NSR program, it may still be possible for the EPA to 

also find, given the facts of the situation, that other SIP provisions and/or physical condition are

adequate to prohibit interference with other air agencies’ measures to prevent significant 

deterioration of air quality.

Prong 4: Under section 110(a)(2)(D)(i)(II), an infrastructure SIP submission cannot be 

approved with respect to prong 4 (visibility transport) until the EPA has issued final approval of 

SIP provisions that the EPA has found to adequately address any contribution of that state's 

 

44 Refer, e.g., to a memorandum issued by William T. Harnett, Director, OAQPS/AQPD, "Guidance for State 

Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for 

the 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards," dated August 15, 2006. According to that 

2006 Harnett memo, in section 5, “[t]he implementation of a PSD and NNSR permitting program in each state 

serves to prevent significant deterioration in neighboring states and thus largely satisfies the requirements of 

section 110(a)(2)(D)(i)(II) of the CAA.” Nevertheless, nonattainment-related provisions, although identified in 

section 110(a)(2) of the CAA, are considered by the EPA to be outside the scope of infrastructure SIP actions, as 

discussed in section II of this guidance.
33 

sources to impacts on visibility program requirements in other states. The EPA interprets this 

prong to be pollutant-specific, such that the infrastructure SIP submission need only address the 

potential for interference with protection of visibility caused by the pollutant (including 

precursors) to which the new or revised NAAQS applies. Carbon monoxide does not affect 

visibility, so an infrastructure SIP for any future new or revised NAAQS for carbon monoxide 

need only state this fact in order to meet prong 4. Significant impacts from lead (Pb) emissions 

from stationary sources are expected to be limited to short distances from the source and most, if 

not all, Pb stationary sources are located at distances from Class I areas such that visibility 

impacts would be negligible. Although Pb can be a component of coarse and fine particles, Pb 

generally comprises a small fraction of coarse and fine particles. Furthermore, when evaluating 

the extent to which Pb could impact visibility, Pb-related visibility impacts were found to be 

insignificant (e.g., less than 0.10 percent).45 Although we anticipate that Pb emissions will 

contribute only negligibly to visibility impairment in Class I areas, the air agency’s submission 

of an infrastructure SIP for a new or revised Pb NAAQS should include an explanation in 

support of the air agency’s conclusion (and, if appropriate, should include control measures in its 

submission to limit impacts in other states). 

One way in which prong 4 may be satisfied for any relevant NAAQS is through an air 

agency’s confirmation in its infrastructure SIP submission that it has an approved regional haze 

SIP that fully meets the requirements of 40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 

specifically require that a state participating in a regional planning process include all measures 

needed to achieve its apportionment of emission reduction obligations agreed upon through that 

process. See, for example, 40 CFR 51.308(d)(3)(ii). A fully approved regional haze SIP will 

ensure that emissions from sources under an air agency’s jurisdiction are not interfering with 

measures required to be included in other air agencies’ plans to protect visibility. However, if the 

air agency has submitted a 5-year progress report SIP that indicates that the regional haze SIP is 

deficient with respect to ensuring reasonable progress toward natural visibility conditions in a 

 

45 Memorandum from Mark Schmidt, OAQPS, “Ambient Pb’s Contribution to Class I Area Visibility Impairment,”

June 17, 2011.
34 

Class I area in another state, the infrastructure SIP submission would need to explain how 

nevertheless the overall SIP satisfies prong 4. 

After the next round of regional haze SIPs become due in 2018, the EPA may find it 

appropriate to supplement the guidance provided here regarding the relationship between 

regional haze SIPs and prong 4. 

A number of air agencies do not have fully approved regional haze SIPs in place and 

instead have FIPs in place, which cannot be relied upon to satisfy prong 4.46 The presence of a 

regional haze FIP does not necessarily require disapproval of the infrastructure SIP for prong 4. 

A state air agency may elect to satisfy prong 4 by providing, as an alternative to relying on its 

regional haze SIP alone, a demonstration in its infrastructure SIP submission that emissions 

within its jurisdiction do not interfere with other air agencies’ plans to protect visibility. Such an 

infrastructure SIP submission would need to include measures to limit visibility-impairing 

pollutants and ensure that the reductions conform with any mutually agreed regional haze 

reasonable progress goals for mandatory Class I areas in other states.47

If the EPA determines the SIP to be incomplete or partially disapproves an infrastructure 

SIP submission for prong 4, a FIP obligation will be created. If a FIP or FIPs are already in effect 

that correct all regional haze SIP deficiencies, there will be no additional practical consequences 

from the partial disapproval for the affected air agency, the sources within its jurisdiction, or the 

 

46 Some approved regional haze SIPs have relied on the fact that electric generating units (EGUs) in the state must 

comply with a FIP previously promulgated by the EPA as part of the CSAPR to satisfy best achievable retrofit 

technology requirements for EGUs. In this limited way, if a regional haze SIP of this type has itself been approved 

by the EPA, it is possible for FIP provisions to be taken into account by the EPA in determining whether an 

infrastructure SIP may be approved for prong 4. 

47 As examples of the possibility that an infrastructure SIP submission can satisfy prong 4 even though the regional 

haze SIP has not been fully approved, see: (i) “Approval and Promulgation of State Implementation Plans; State of 

Colorado; Interstate Transport of Pollution Revisions for the 1997 8-Hour Ozone and 1997 PM2.5 NAAQS: 

‘Interference With Visibility’ Requirement – Final Rule”, 76 FR 22036 (April 20, 2011); and (ii) “Approval and 

Promulgation of Implementation Plans; Kentucky; 110(a)(1) and (2) Infrastructure Requirements for the 2008 8-

Hour Ozone National Ambient Air Quality Standards – Final Rule,” 78 FR 14681 (March 7, 2013). In the first 

action, the EPA approved the infrastructure SIP submission with respect to prong 4 without having approved a 

regional haze SIP, based on the state’s demonstration that it does not interfere with other states’ measures to protect 

visibility through their regional haze SIPs. In the second proposed action, the EPA approved Kentucky’s submission 

with respect to prong 4 based on the partial approval of its regional haze SIP and its CSAPR SIP. 
35 

EPA. The EPA will not be required to take further action with respect to prong 4 because the FIP

already in place would satisfy the requirements with respect to prong 4. In addition, unless the 

infrastructure SIP submission is required in response to a SIP call under CAA section 110(k)(5), 

mandatory sanctions under CAA section 179 would not apply because the deficiencies are not

with respect to a submission that is required under CAA title I part D. Nevertheless, the EPA 

continues to encourage all air agencies that may be subject to full or partial FIPs for regional 

haze requirements to consider adopting additional SIP provisions that would allow the EPA to 

fully approve the regional haze SIP and thus to withdraw the FIP and approve the infrastructure 

SIP with respect to prong 4. 

Element D(ii) – Section 110(a)(2)(D)(ii): Interstate Pollution Abatement and International 

Air Pollution

Each such plan shall – 

(D) contain adequate provisions – 

 (ii) insuring compliance with the applicable requirements of sections 126 and 

115 (relating to interstate and international pollution abatement). 

Element D(ii) is satisfied when an infrastructure SIP ensures compliance with the 

applicable requirements of CAA sections 126(a), 126(b) and (c), and 115. 

Interstate Pollution Abatement: 

 Sec. 126. (a) Each applicable implementation plan shall – 

 (1) require each major proposed new (or modified) source – 

 (A) subject to part C (relating to significant deterioration of air quality) or

 (B) which may significantly contribute to levels of air pollution in excess of the 

national ambient air quality standards in any air quality control region outside 

the State in which such source intends to locate (or make such modification), to 

provide written notice to all nearby States the air pollution levels of which may be 

affected by such source at least sixty days prior to the date on which 

commencement of construction is to be permitted by the State providing notice, 

and 

(2) identify all major existing stationary sources which may have the impact 

described in paragraph (1) with respect to new or modified sources and provide 

notice to all nearby States of the identity of such sources not later than 

three months after the date of enactment of the Clean Air Act Amendments of 

1977. 
36 

Under section 126(a)(1) of the CAA, each SIP would need to contain provisions requiring 

each new or modified major source required by CAA title I part C to be subject to PSD to notify 

neighboring air agencies of potential impacts from the source. Consistent with EPA’s 

interpretation of part C with respect to the requirements of Element C, the notification 

requirements apply to potential impacts from all PSD-regulated pollutants, not only the new or 

revised NAAQS for which the infrastructure SIP submission is being made. Section 126(a)(1) 

also requires that each SIP contain provisions requiring each new or modified major source to 

provide similar notification if it may significantly contribute to levels of pollution in excess of a 

NAAQS in any air quality control region outside of the state in which the source is located. 

Air agencies with PSD programs that have been approved into their SIPs should already 

have a regulatory provision in place, consistent with 40 CFR 51.166(q)(2)(iv), which requires the 

permitting authority to notify air agencies whose lands may be affected by emissions from that 

source. Inasmuch as the information that the permitting authority provides to other air agencies is 

submitted by the source to the permitting authority, the EPA considers the notification by the 

permitting authority to satisfy the requirement of CAA section 126(a)(1)(A) that a new or 

modified major source subject to part C notify neighboring air agencies of its potential 

downwind impact.

A state that is subject to a FIP for its PSD program may not have an infrastructure SIP 

that satisfies Element D(ii) with respect to section 126(a)(1) of the CAA, depending on the scope 

of the gap in the SIP that led to the PSD FIP. Where some or all pollutants in a state are subject 

to a PSD FIP, the EPA may find the infrastructure SIP submission to be incomplete with respect 

to Element D(ii) and could not fully approve the infrastructure SIP submission with respect to 

Element D(ii) if the approved SIP has no other provision meeting the notification requirements 

of section 126(a)(1). Nonetheless, as noted above, the EPA anticipates that there would be no 

adverse consequences to the air agency or to sources within its jurisdiction from this lack of full 

approval. The EPA would not likely be required to take further action with respect to notification 

under this element, because the federal PSD rules should fully address the notification issue

through the requirements of 40 CFR 52.21(q) and 40 CFR 124.10(c)(vii) and thus satisfy the FIP 
37 

requirement triggered by the disapproval of the infrastructure SIP.

48 In addition, unless the 

infrastructure SIP submission is required in response to a SIP call under CAA section 110(k)(5), 

mandatory sanctions under CAA section 179 would not apply because the deficiencies are not

with respect to a submission that is required under CAA title I part D. 

The EPA notes that the requirement stated in CAA section 126(a)(2) was a one-time 

obligation on states that does not apply to the EPA’s review of infrastructure SIP submissions.

Interstate Pollution Abatement:

Section 126...

(b) Any State or political subdivision may petition the Administrator for a finding 

that any major source or group of stationary sources emits or would emit any air 

pollutant in violation of the prohibition of section 110(A)(2)(D)(ii) or this section. 

Within 60 days after receipt of any petition under this subsection and after public 

hearing, the Administrator shall make such a finding or deny the petition.

 (c) Notwithstanding any permit which may have been granted by the State in 

which the source is located (or intends to locate), it shall be a violation of [this 

section and] the applicable implementation plan in such State – 

 (1) for any major proposed new (or modified) source with respect to which a 

finding has been made under subsection (b) to be constructed or to operate in 

violation of [this section and] the prohibition of section 110(a)(2)(D)(ii) or this 

section, or 

 (2) for any major existing source to operate more than three months after such 

finding has been made with respect to it.

The Administrator may permit the continued operation of a source referred to in 

paragraph (2) beyond the expiration of such three-month period if such source 

complies with such emission limitations and compliance schedules (containing 

increments of progress) as may be provided by the Administrator to bring about 

compliance with the requirements contained in section 110(a)(2)(D)(ii) as 

expeditiously as practicable, but in no case later than three years after the date of 

such finding. Nothing in the preceding sentence shall be construed to preclude 

any such source from being eligible for an enforcement order under 

section 113(d) after the expiration of such period during which the Administrator 

has permitted continuous operation.

 

48 40 CFR part 124, including 124.10(c)(vii), provides for EPA notification to states whose lands may be affected by 

emissions from the source and applies to all federal PSD permits issued in accordance with 40 CFR 52.21.
38 

Please note that the EPA has concluded that the cross-reference in CAA section 126(b) to 

CAA section 110(a)(2)(D)(ii) is a scrivener’s error and that Congress intended to refer to 

section 110(a)(2)(D)(i). See Appalachian Power Co. v. EPA, 249 F.3d -1032, 1040-44 (D.C. Cir. 

2001). Section 110(a)(2)(D)(i), in short, prohibits any source or emissions activity in a state from 

emitting any amount of air pollutant which will contribute significantly to nonattainment or 

interfere with maintenance of the NAAQS in another state. (42 U.S.C. § 7410.)

The required content of an infrastructure SIP with respect to Element D(ii) is affected by

sections 126(b) and 126(c) of the CAA only if: (1) the Administrator has, in response to a 

petition, made a finding under section 126(b) of the CAA that emissions from a source or

sources within the air agency’s jurisdiction emit prohibited amounts of air pollution relevant to 

the new or revised NAAQS for which the infrastructure SIP submission is being made; and (2) 

under section 126(c) of the CAA, the Administrator has required the source or sources to cease 

construction, cease or reduce operations, or comply with emissions limitations and compliance 

schedule requirements for continued operation. Where appropriate, the EPA recommends that an 

infrastructure SIP submission concerning section 126(c) include a statement to the following 

effect: “No source or sources within the state [or tribal area] are the subject of an active finding 

under section 126 of the CAA with respect to the particular NAAQS at issue.” Otherwise, where 

a source or sources within the air agency’s jurisdiction are subject to such a finding and there are 

substantive SIP requirements imposed by the Administrator under section 126(c) of the CAA, 

then we encourage the air agency to consult with its EPA Regional Office. 

International Air Pollution:

 Sec. 115. (a) Whenever the Administrator, upon receipt of reports, surveys or 

studies from any duly constituted international agency has reason to believe that 

any air pollutant or pollutants emitted in the United States cause or contribute to 

air pollution which may reasonably be anticipated to endanger public health or 

welfare in a foreign country or whenever the Secretary of State requests him to do 

so with respect to such pollution which the Secretary of State alleges is of such a 

nature, the Administrator shall give formal notification thereof to the Governor of 

the State in which such emissions originate. 

(b) The notice of the Administrator shall be deemed to be a finding under 

section 110(a)(2)(H)(ii) which requires a plan revision with respect to so much of 

the applicable implementation plan as is inadequate to prevent or eliminate the 

endangerment referred to in subsection (a). Any foreign country so affected by 
39 

such emission of pollutant or pollutants shall be invited to appear at any public 

hearing associated with any revision of the appropriate portion of the applicable 

implementation plan. 

Section 115 of the CAA authorizes the Administrator to require a state to revise 

its SIP under certain conditions to alleviate international transport into another country. 

Because of the appearance of the phrase “applicable requirements of section[]...115” in 

Element D(ii), the EPA interprets this requirement to be NAAQS-specific. That is, when

acting on an infrastructure SIP submission for a new or revised NAAQS, the EPA will 

look to whether the Administrator has made a finding with respect to emissions of the 

particular NAAQS pollutant and its precursors, if applicable. Where appropriate, the EPA 

recommends that infrastructure SIP submission requirements concerning section 115 

include a statement to the following effect: "There are no final findings under section 115 

of the CAA against this state [or tribal area] with respect to the particular NAAQS at 

issue." If there are one or more final findings under section 115 of the CAA, then we 

encourage the air agency to consult with its EPA Regional Office.

Element E – Section 110(a)(2)(E): Adequate Resources and Authority, Conflict of 

Interest, and Oversight of Local Governments and Regional Agencies

Each such plan shall – 

(E) provide (i) necessary assurances that the State (or, except where the 

Administrator deems inappropriate, the general purpose local government or 

governments, or a regional agency designated by the State or general purpose 

local governments for such purpose) will have adequate personnel, funding, and 

authority under State (and, as appropriate, local) law to carry out such 

implementation plan (and is not prohibited by any provision of Federal or State 

law from carrying out such implementation plan or portion thereof), 

(ii) requirements that the State comply with the requirements respecting State 

boards under section 128, and (iii) necessary assurances that, where the State has 

relied on a local or regional government, agency, or instrumentality for the 

implementation of any plan provision, the State has responsibility for ensuring 

adequate implementation of such plan provision. 
40 

Subelement (i): The SIP should provide necessary assurances49 that the air agency has

adequate personnel and funding to implement the relevant NAAQS. In accordance with the 

EPA's regulations at 40 CFR part 51, subpart M (“Intergovernmental Consultation”), the 

infrastructure SIP submission should identify the organizations that will participate in 

developing, implementing, and enforcing the EPA-approved SIP provisions related to the new or 

revised NAAQS and thus require resources for doing so. The infrastructure SIP submission 

should identify the responsibilities of such organizations and include related agreements among 

the organizations. For compliance with section 110(a)(2)(E), see 40 CFR 51.240 ("General plan 

requirements"). Also, in accordance with the EPA's regulations at 40 CFR part 51, subpart O 

(“Miscellaneous Plan Content Requirements”), the infrastructure SIP submission should describe 

the resources that are available to these organizations for carrying out the SIP. Resources to be 

described should include: (1) those available to these organizations as of the date of 

infrastructure SIP submission; (2) those considered necessary during the 5 years following 

infrastructure SIP submission; and (3) projections regarding acquisition of the described 

resources. For compliance with section 110(a)(2)(E) with respect to resources, see 40 CFR 

51.280 ("Resources"). 

Further, the infrastructure SIP submission should assure that the responsible state, local, 

and/or regional agencies, or a tribal authority, have adequate authority under statutes, rules, and 

regulations to carry out SIP obligations with respect to the relevant NAAQS. See the EPA's 

regulations at 40 CFR part 51, subpart L ("Legal Authority") and subpart O. In accordance with 

the EPA's regulations at subpart L, the infrastructure SIP submission should show that the 

responsible organizations have the legal authority to carry out the provisions identified in the SIP 

submission. 

 

49 As with any SIP submission, the EPA’s review can be expedited if a SIP submission for this element includes a 

detailed explanation of how the existing SIP (supplemented by any new provisions included in the submission) 

meets each of the applicable requirements of section 110(a)(2)(E)(i). This should include a description of the 

correlation between the requirements of this element and an equivalent set of statutory, regulatory, and/or nonregulatory provisions, as appropriate. When an air agency’s infrastructure submission more clearly identifies each

CAA element being met by the SIP submission and explains how it is met, the EPA can more easily determine 

whether the submission is complete and approvable with respect to that element.
41 

In accordance with 40 CFR 51.231, the infrastructure SIP submission should identify the 

provisions of law or regulations that the air agency determines provide the necessary authority, 

and the air agency should submit copies of those laws or regulations with the infrastructure SIP 

submission. If an official, legal copy of a particular law or regulation has already been provided 

to the EPA in an earlier SIP submission, that copy only needs to be referenced with sufficient 

specificity to avoid ambiguity, rather than a new copy submitted.50 For compliance with 

section 110(a)(2)(E) with respect to legal authority, see 40 CFR 51.230 and 40 CFR 51.231. 

Having reviewed and approved air agency SIP submissions with respect with this 

element, the EPA expects that it would be unusual for air agencies to need to make SIP revisions 

regarding personnel, funding, or legal authority in order to satisfy this subelement. However, for 

any new or revised NAAQS, the air agency should explain in the infrastructure SIP submission 

how resources and personnel and legal authority are adequate and provide any additional 

assurances needed to meet changes in resource requirements by the new or revised NAAQS.

Subelement (ii): 

State Boards:

The infrastructure SIP submission (possibly in combination with earlier submissions 

already approved by the EPA) would need to include the statutory or regulatory provisions that 

impose the requirements mandated by CAA section 128 pertaining to certain boards, bodies, and 

personnel involved in approving permits or enforcement orders. Because CAA 

section 110(a)(2)(e)(ii) directs states to “provide requirements that the state comply with the 

 

50 Refer to a memorandum dated November 22, 2011, jointly from Janet McCabe, Deputy Assistant Administrator, 

Office of Air and Radiation, and Becky Weber, Director, Air and Waste Management Division, Region 7, to Air 

Division Directors, Regions 1-10, titled "Guidelines for Preparing Letters Submitting State Implementation Plans 

(SIPs) to EPA and for Preparing Public Notices for SIPs." 
42 

requirements respecting state boards under section 128,”51 the provisions that implement CAA 

section 128 would need to be contained within the SIP. That is, the EPA would not approve an 

infrastructure SIP submission that only provides a narrative description of existing air agency 

laws, rules, and regulations that are not approved into the SIP to address CAA section 128 

requirements. If an existing rule regarding conflict of interest and disclosure requirements has 

been adopted under the authority of a state or tribal law, the rule would need to be included in the 

SIP submission, but the authorizing law would not. If the state or tribal law is self-executing and 

there is no rule that could be included in the SIP, then the law would need to be incorporated into 

the SIP. Inclusion of an existing law in the SIP does not prevent the state legislature or tribal 

council from amending that law at a later date as a matter of state law, although eventually the 

EPA-approved SIP will need to be updated with any such amendment in order to revise the 

federally enforceable SIP. 

All air agencies are subject to the provisions of CAA section 128. However, if there is no

board or body authorized to approve permits or enforcement orders under the CAA, then a 

negative declaration to that effect may serve to satisfy the "board or body" requirements under 

paragraph (a)(1) of CAA section 128. It is the EPA’s stated interpretation that a multi-member 

board or body that has authority under state or tribal law to hear appeals of CAA permits or 

 

51 Sec. 128. (a) Not later than the date one year after the date of the enactment of 

this section, each applicable implementation plan shall contain requirements 

that – 

(1) any board or body which approves permits or enforcement orders under this 

Act shall 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 or enforcement orders under this Act, and 

(2) any potential conflicts of interest by members of such board or body or the 

head of an executive agency with similar powers be adequately disclosed.

A State may adopt any requirements respecting conflicts of interest for such 

boards or bodies or heads of executive agencies, or any other entities which are 

more stringent than the requirements of (paragraphs (1) and (2), and the 

Administrator shall approve any such more stringent requirements submitted as 

part of an implementation plan.
43 

enforcement orders is considered to have authority to “approve” those permits or enforcement 

orders. Accordingly, the requirements of section 128(a)(1) related to public interest and 

limitations on sources of income are applicable to such a board or body and would need to be 

met through provisions incorporated into the SIP.52,53

The provisions of section 128(a)(2), which concern disclosure of potential conflicts of 

interest, would need to be substantively met by provisions incorporated into the SIP, regardless 

of whether it is a board, some other body, or the head of an executive agency that has 

responsibility for approving permits or enforcement orders in that state or an area of Indian 

country. It is the EPA’s stated interpretation that a multi-member board or body that has 

authority under state or tribal law to hear appeals of CAA permits or enforcement orders is 

considered to have authority to “approve” those permits or enforcement orders. Accordingly, the 

requirement of section 128(a)(2) related to disclosure is applicable to such a board or body and 

would need to be met through provisions incorporated into the SIP.

In 1978, the EPA issued a guidance memorandum recommending ways air agencies 

could meet the requirements of section 128, including suggested interpretations of certain terms 

in section 128.54 EPA has not issued further guidance or regulations of general applicability on 

the subject since that time. However, as part of its actions on several infrastructure SIP 

submissions, the EPA has more recently proposed certain interpretations of section 128 as 

applied to these specific submissions, invited comment on these interpretations, and finalized its 

actions. Within those actions, EPA has thus provided additional interpretation of the terms of 

section 128 given specific facts and circumstances, consistent with the statutory requirements. 

 

52 The EPA expressed this interpretation in a proposed action on the infrastructure SIP for Arizona. June 27, 2012. 

“Partial Approval and Disapproval of Air Quality Implementation Plans; Arizona: Infrastructure Requirement for 

Ozone and Fine Particulate Matter.” 77 FR 38239. This action was finalized on November 5, 2012, 77 FR 66398. 

53 “Approval and Promulgation of State Implementation Plans; Hawaii Infrastructure Requirements for the 1997 8-

Hour Ozone and the 1997 and 2006 Fine Particulate Matter National Ambient Air Quality Standards.” 77 FR 47530 

(August 9, 2012). The EPA’s action on the infrastructure SIP for Arizona referenced the proposal for this action on 

the infrastructure SIP for Hawaii.

54 See Memorandum from David O. Bickart to Regional Air Directors, "Guidance to States for Meeting Conflict of 

Interest Requirements of Section 128," Suggested Definitions, March 2, 1978.
44 

See, e.g., EPA's proposed (77 FR 44555, July 30, 2012) and final (77 FR 66398, November 5, 

2012) actions on an infrastructure SIP submission from Arizona. Unlike the recommendations of 

the 1978 guidance memorandum, in this action the EPA interpreted the term “state board” to 

exclude an individual official. As in the 1978 guidance memorandum, in this action the EPA 

interpreted the requirement regarding representation of the public interest and limitations on 

income to apply to a board that does not issue permits and compliance orders but does hear 

appeals of permits and compliance orders. The EPA notes that air agencies in different 

jurisdictions may have very different organizational structures and very different allocations of 

authorities and responsibilities with respect to permits and enforcement orders. Thus, the EPA 

recommends that air agencies consult with their respective EPA Regional Offices about the most 

appropriate method for assuring that the requirements of section 110(a)(2)(E)(ii) and section 128 

are met in that jurisdiction under the relevant facts and circumstances.

Subelement (iii): The infrastructure SIP submission should provide necessary 

assurances55 that the state retains responsibility for ensuring adequate implementation of SIP 

obligations with respect to relevant NAAQS. A state may authorize a local or regional agency to 

carry out the SIP or a portion of the SIP within that agency's jurisdiction, if the SIP demonstrates 

that the local agency has the necessary legal authority. However, in these cases the infrastructure 

SIP submission needs to also provide assurances that the state air agency retains responsibility 

for ensuring adequate implementation of the SIP. Under subpart L, see 40 CFR 51.232 

("Assignment of legal authority to local agencies"). 

 

55 As with any SIP submission, the EPA’s review can be expedited if a SIP submission for this element includes a 

detailed explanation of how the existing SIP meets each of the applicable requirements of section 110(a)(2)(E)(i). 

This should include a description of the correlation between the requirements of this element and an equivalent set 

of statutory, regulatory, and/or non-regulatory provisions, as appropriate, that are part of the existing SIP. When an 

air agency’s infrastructure submission more clearly identifies each CAA element being met by the SIP submission 

and explains how the element is met, the EPA can more easily determine whether the submission is complete and 

approvable with respect to that element.
45 

Element F – Section 110(a)(2)(F): Stationary Source Monitoring and Reporting

Each such plan shall – 

(F) require, as may be prescribed by the Administrator – 

 (i) the installation, maintenance, and replacement of equipment, and the 

implementation of other necessary steps, by owners or operators of stationary 

sources to monitor emissions from such sources, 

 (ii) periodic reports on the nature and amounts of emissions and emissionsrelated data from such sources, and 

 (iii) correlation of such reports by the State agency with any emission limitations 

or standards established pursuant to this Chapter, which reports shall be 

available at reasonable times for public inspection. 

Subelement (i): The EPA’s rules regarding how SIPs would need to address requirements 

for source monitoring are contained in 40 CFR 51.212 (“Testing, inspection, enforcement, and 

compliance”). This EPA regulation requires SIPs to provide for a program of periodic testing and 

inspection of stationary sources, to provide for the identification of allowable test methods, and 

to exclude any provision that would prevent the use of any credible evidence of noncompliance. 

The infrastructure SIP submission should describe the air agency’s program for source testing, 

reference the statutory authority for the air agency’s program, and certify the absence of any 

provision preventing the use of any credible evidence. 

Subelement (ii): To address periodic reporting requirements, the infrastructure SIP 

submission should include air agency requirements providing for periodic reporting of emissions 

and emissions-related data by sources to the air agency, as required by the following emissions 

reporting requirements: 40 CFR 51.211 (“Emissions reports and recordkeeping”); 40 CFR 

sections 51.321 through 51.323 (“Source Emissions and State Action Reporting”); and the EPA’s 

Air Emissions Reporting Rule, 40 CFR part 51, subpart A (“Air Emissions Reporting 

Requirements”).56 We note that the section 51.321 requirement that emissions reports from states 

be made through the appropriate EPA Regional Office has been superseded in practice, as these 

data are now to be reported electronically through a centralized data portal pursuant to 40 CFR 

 

56 40 CFR sections 51.321 through 51.323 nominally address emission reporting but merely cross-reference to 

subpart A.
46 

51.45(b), which refers to the website http://www.epa.gov/ttn/chief for the latest information on 

data reporting procedures. However, states should consult with the appropriate EPA Regional 

Office as they prepare and submit these data. All states have existing periodic source reporting of 

emissions and emission inventory reporting practices. Thus for any new or revised NAAQS, the 

infrastructure SIP may be able to certify existing authority and commitments and provide any 

additional assurance needed to meet changes in reporting and inventory requirements associated 

with the new or revised NAAQS.

Subelement (iii): The infrastructure SIP submission should reference and describe 

existing air agency requirements that have been approved into the SIP by the EPA, or include air 

agency requirements being newly submitted, that provide for the following: (1) correlation57 by 

the air agency of emissions reports by sources with applicable emission limitations or standards; 

and (2) the public availability of emission reports by sources. Under 40 CFR part 51 subpart G, 

40 CFR 51.116 ("Data availability"), contains the requirements for correlating data. Correlation 

with applicable emissions limitations or standards is relevant only for those reports of source 

emissions that reflect the test method(s) and averaging period(s) specified in applicable emission 

limitations or standards. Thus, source reports of annual, ozone season, or summer day emissions 

used by the air agency to create the annual and triennial emission inventory submission to the 

EPA under 40 CFR part 51 subpart A in general would not need to be correlated with specific 

emission limitations or standards, as many sources do not have applicable emission limitations 

defined for those averaging periods. However, if the sources have applicable emissions 

limitations that are defined for these averaging periods, then they would need to be correlated.

 

57 As defined in 40 CFR 51.116(c), the term "correlated" means "presented in such a manner as to show the 

relationship between measured or estimated amounts of emissions and the amounts of such emissions allowable 

under the applicable emission limitations or other measures."
47 

Element G – Section 110(a)(2)(G): Emergency Powers

Each such plan shall – 

(G) provide for authority comparable to that in section 303 and adequate 

contingency plans to implement such authority. 

Section 303 of the CAA provides authority to the EPA Administrator to seek a court 

order to restrain any source from causing or contributing to emissions that present an "imminent 

and substantial endangerment to public health or welfare, or the environment." The EPA has 

interpreted section 110(a)(2)(G) as imposing two basic requirements for purposes of an 

infrastructure SIP submission. 

To meet Element G requirements, the best practice for an air agency submitting an 

infrastructure SIP would be to submit, for inclusion into the SIP (if not already part of the SIP), 

the statutory or regulatory provisions that provide the air agency or official with authority 

comparable to that of the EPA Administrator under section 303 (see, e.g., 40 CFR 51.230(c)), 

along with a narrative explanation of how they meet the requirements of this element.

58 If an air 

agency chooses not to include the relevant statute or regulation in its SIP, then the air agency 

should provide a reference or citation to the authority provisions, along with a narrative 

explanation of how the provisions meet the requirements of this element, as well as a copy of the 

relevant authority to accompany the SIP as required by 40 CFR 51.231.

 The air agency is also required to submit, for approval into the SIP (if not already part of 

the SIP), an adequate contingency plan to implement the air agency’s emergency episode 

authority. This can be met by submitting a plan that meets the applicable requirements of 40 

CFR part 51, subpart H (40 CFR 51.150 through 51.153) (“Prevention of Air Pollution 

Emergency Episodes”) for the relevant NAAQS if the NAAQS is covered by those regulations. 

The EPA’s subpart H regulations provide specific ambient levels for contingency plan 

purposes for most NAAQS. In the case of the 2006 PM2.5 NAAQS, for which the EPA has not 

 

58 The EPA recognizes that some air agencies may have general authorizing provisions that do not specifically 

enumerate specific activities but do implicitly authorize the air agency to perform such activities, in which case 

inclusion of those provisions would meet the intent of this best practice.
48 

yet promulgated regulations that provide the ambient levels to classify different priority levels, 

the EPA has recommended these levels through guidance.59

Subpart H includes criteria for classification of areas into priority regions, based on 

ambient air concentrations of the particular pollutant being addressed. The currently applicable 

priority classifications for regions for each state can be found in 40 CFR part 52 subparts B 

through DDD (see sections titled “Classification of Regions”). As noted above, the air agency’s 

infrastructure SIP submission would need to include the contingency plan, if one is required and 

has not yet been approved by the EPA. If an area is classified as a Priority I, IA, or II region for a 

specified pollutant, then the infrastructure SIP should contain an emergency contingency plan 

meeting the specific requirements of 40 CFR 51.151 and 51.152, as appropriate, with respect to 

that pollutant. For such areas, the infrastructure submission should demonstrate that the air 

agency’s existing EPA-approved SIP already contains an adequate contingency plan, if that is the 

case; otherwise, the submission should include the substantive SIP revisions necessary to meet 

the emergency contingency plan requirements with respect to that pollutant.

Specifically, if an area is classified as a Priority I region for a specified pollutant, the 

area’s contingency plan (with respect to that pollutant) would need to include provisions that 

trigger actions to prevent air quality concentrations from reaching a “significant harm level” 

(SHL), which represents an imminent and substantial endangerment to public health. See 40 CFR 

51.151 and the more detailed explanation below. Each implementation plan for a Priority I, IA,

or II region would need to include a contingency plan that provides for taking certain specified 

actions. Specifically, 40 CFR sections 51.152(b) and (c) state that: 

(b) Each contingency plan for a Priority I region must provide for the following: 

(1) Prompt acquisition of forecasts of atmospheric stagnation conditions and of 

updates of such forecasts as frequently as they are issued by the National Weather 

Service. 

(2) Inspection of sources to ascertain compliance with applicable emission

control action requirements. 

 

59 See a memorandum from William T. Harnett, Director, Air Quality Policy Division, OAQPS, to Regional Air 

Division Directors, Regions I through X, “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for 

the 2006 Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS).” (September 25, 2009).
49 

(3) Communications procedures for transmitting status reports and orders as to 

emission control actions to be taken during an episode stage, including 

procedures for contact with public officials, major emission sources, public 

health, safety, and emergency agencies and news media. 

(c) Each plan for a Priority IA and II region must include a contingency plan that 

meets, as a minimum, the requirements of paragraphs (b)(1) and (b)(2) of this 

section. Areas classified as Priority III do not need to develop episode plans.

To satisfy a Priority I, IA, or II region's contingency plan requirements under 40 CFR 

51.152(b)(1) regarding forecasts of atmospheric stagnation conditions, an infrastructure SIP 

submission may cite existing ambient monitoring and forecasting networks (such as AIRNow).60 

Areas that maintain air quality at ambient levels lower that the concentrations listed in 

sections 51.150(b), (c), and (d), with respect to the pollutants listed, are classified as Priority III 

regions. These areas are subject to the requirements of CAA Element G. However, according to 

40 CFR 51.152(c), areas classified as Priority III regions are not required to develop emergency 

episode plans, which the EPA has interpreted to mean the contingency plans otherwise required 

under Element G.

In a final rulemaking signed on December 14, 2012, to revise the PM2.5 NAAQS, the 

EPA retained the pre-existing level of 500 μg/m3

, 24-hour average, for the Air Quality Index 

(AQI) value of 500 and did not establish an SHL for PM2.5.

61 In addition, there is currently no 

established SHL for Pb. For those pollutants for which there is an SHL, the SHL is an important 

part of air pollution Emergency Episode Plans. Even in the absence of an SHL, the EPA believes 

that the central components of a contingency plan would be to reduce emissions from the 

source(s) at issue (if necessary by curtailing operations of Pb or PM2.5 sources) and public 

communication as needed. In addition, if an air agency believes, based on its inventory of Pb or 

 

60 The EPA, in partnership with National Oceanic and Atmospheric Administration (NOAA), National Park Service 

(NPS), and tribal, state, and local agencies, developed the AIRNow website (see http://www.airnow.gov) to provide 

easy public access to national air quality information. The website offers daily AQI forecasts as well as real-time 

AQI conditions for over 300 cities across the U.S. and provides links to more detailed state and local air quality 

websites. 

61 See 78 FR 3086 (January 15, 2013), “National Ambient Air Quality Standards for Particulate Matter.” The 

published version is posted at http://www.gpo.gov/fdsys/pkg/FR-2013-01-15/pdf/2012-30946.pdf. 
50 

PM2.5 sources and historic ambient monitoring data, that it does not need a more specific 

contingency plan beyond having authority to restrain any source from causing or contributing to 

an imminent and substantial endangerment, then the air agency could provide such a detailed 

rationale as part of its SIP submission. Additionally, because smoke from fires has the potential 

to be the cause of extremely high levels of PM2.5, the EPA recommends that air quality-triggered 

responses incorporated into an Emergency Episode Plan for PM2.5 be developed through a 

collaborative process working with state and tribal air quality, forestry, and agricultural agencies, 

federal land management agencies, private land managers, and the public. 

An episode in which concentrations of NO2 or SO2 approach the SHL is likely to be due 

to a single facility's equipment malfunction. Accordingly, as part of a SIP to satisfy a Priority I 

region's contingency plan requirements, an infrastructure SIP submission for an NO2 NAAQS or 

an SO2 NAAQS may specify the facility-specific or equipment-specific measures to be taken in 

the event of an air pollution emergency. 

In accordance with 40 CFR 51.152(d)(1) and (2), the Administrator may either: (i)

exempt portions of a Priority I, IA, or II region that have been designated as attainment or 

unclassifiable under section 107 of the CAA from the requirements of 40 CFR 51.152 to develop 

an emergency episode contingency plans, or (ii) limit the requirements pertaining to emission 

control actions in Priority I regions to certain areas or to certain major sources. Air agencies 

interested in such an exemption or limitation in appropriate circumstances should contact their 

respective EPA Regional Offices. 

Appendix L to 40 CFR part 51 provides example regulations that air agencies could use 

to develop contingency plans and inform decisions concerning air pollution emergency episodes. 

The example regulations provided in appendix L reflect generally recognized ways of preventing 

air pollution from reaching levels that would cause imminent and substantial endangerment to 

the health of persons located within affected areas. States with Priority I, IA, or II areas are 

directed by subpart H to have emergency episode contingency plans that contain alert levels for 

SO2, PM10, carbon monoxide, NO2, and ozone, but air agencies are not required to adopt the 

appendix L example regulations. 
51 

Element H – Section 110(a)(2)(H): SIP Revisions

Each such plan shall – 

(H) provide for revision of such plan – 

 (i) from time to time as may be necessary to take account of revisions of such 

national primary or secondary ambient air quality standard or the availability of 

improved or more expeditious methods of attaining such standard, and 

 (ii) except as provided in paragraph (3)(C), whenever the Administrator finds on 

the basis of information available to the Administrator that the plan is 

substantially inadequate to attain the national ambient air quality standard which 

it implements or to otherwise comply with any additional requirements 

established under this chapter. 

To demonstrate that the requirements under Element H are met, the best practice for an air agency

submitting an infrastructure SIP would be to submit, for inclusion into the SIP (if not already part of the 

SIP), the statutory or regulatory provisions that provide the air agency or official with the 

authority to perform the following actions along with a narrative explanation of how they meet 

the requirements of this element: (1) revise its section 110 plan from time to time as may be 

necessary to take into account revisions of such primary or secondary NAAQS or the availability 

of improved or more expeditious methods of attaining such standards; and (2) revise the plan in 

the event the Administrator finds the plan to be substantially inadequate to attain the NAAQS or 

otherwise meet all applicable CAA requirements.62 

If an air agency chooses not to include the relevant statute or regulation in its SIP, then 

the air agency should provide a reference or citation to the authority provisions, along with a 

narrative explanation of how the provisions meet the requirements of this element, as well as a 

copy of the relevant authority to accompany the SIP as required by 40 CFR 51.231. More 

information may be found under 40 CFR part 51, subpart F ("Procedural Requirements"), 

specifically, 40 CFR 51.104 ("Revisions"). 

 

62 The EPA recognize that some air agencies may have general authorizing provisions that do not specifically 

enumerate specific activities but do implicitly authorize the air agency to perform such activities, in which case 

inclusion of those provisions would meet the intent of this best practice.
52 

Element I – Section 110(a)(2)(I): Plan Revisions for Nonattainment Areas 

Each such plan shall – 

(I) in the case of a plan or plan revision for an area designated as a 

nonattainment area, meet the applicable requirements of part D of this 

subchapter (relating to nonattainment areas). 

As noted earlier in this document, the EPA does not expect infrastructure SIP 

submissions to address subsection 110(a)(2)(I). The specific SIP submissions for designated 

nonattainment areas, as required under CAA title I part D, are subject to a different submission 

schedule63 than those for section 110 infrastructure elements and will be reviewed and acted 

upon through a separate process. Air agencies do not need to address Element I in an 

infrastructure SIP submission. For clarity’s sake, to better inform the public comment process on 

the SIP submission, the air agency may wish to clearly state that Element I is not being addressed

and reiterate in the infrastructure SIP submission that, according to the EPA’s interpretation of 

the CAA this element does not need to be addressed in the context of an infrastructure SIP 

submission. 

Element J – Section 110(a)(2)(J): Consultation with Government Officials, Public 

Notification, and PSD and Visibility Protection

Each such plan shall – 

(J) meet the applicable requirements of section 121 (relating to consultation), 

section 127 (relating to public notification), and part C (relating to prevention of 

significant deterioration of air quality and visibility protection)....

This element contains four separable sub-elements: consultation with identified officials 

on certain air agency actions; public notification; prevention of significant deterioration; and 

visibility protection.

Consultation with identified officials on certain actions:

 

63 These elements are typically referred to as nonattainment SIP or attainment plan elements and are due by the dates 

prescribed under subparts 2 through 5 of part D, extending as far as 10 years following designation for some 

elements.
53 

 Sec. 121. In carrying out the requirements of this Act requiring applicable 

implementation plans to contain – 

(1) any transportation controls, air quality maintenance plan requirements or 

preconstruction review of direct sources of air pollution, or 

(2) any measure referred to – 

 (A) in part D (pertaining to nonattainment requirements), or

 (B) in part C (pertaining to prevention of significant deterioration), 

and in carrying out the requirements of section 113(d) (relating to certain 

enforcement orders), the State shall provide a satisfactory process of 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 State plan applies, effective with respect to any 

such requirement which is adopted more than one year after the date of 

enactment of the Clean Air Act Amendments of 1977 as part of such plan. Such 

process shall be in accordance with regulations promulgated by the 

Administrator to assure adequate consultation. The Administrator shall update as 

necessary the original regulations required and promulgated under this section 

(as in effect immediately before the date of the enactment of the Clean Air Act 

Amendments of 1990) to ensure adequate consultation. Only a general purpose 

unit of local government, regional agency, or council of governments adversely 

affected by action of the Administrator approving any portion of a plan referred 

to in this subsection may petition for judicial review of such action on the basis of 

a violation of the requirements of this section.

The infrastructure SIP submission would need to show that there is an established 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 plan applies, consistent with CAA section 121, which lists the specific types of 

actions for which such consultation is required. If the relevant statute is self-executing such that 

there is no associated regulation or other documents such as a memorandum of understanding, 

then the statute would need to be included in the SIP. If a regulation or other document meeting 

the CAA requirements exists, then the regulation or other document would need to be included in 

the SIP submission, and the authorizing statute should be referenced but the statute is not 

required to be part of the EPA-approved SIP. Under the requirements of 40 CFR 51.240, the SIP 

would need to identify organizations “that will participate in developing, implementing, and 

enforcing the plan and the responsibilities of such organizations.” The plan should also include 
54 

any related agreements or memoranda of understanding among the organizations. See subpart M 

("Intergovernmental Consultation"). 

Public Notification:

Section 127. (a) Each State plan shall contain measures which will be effective to 

notify the public during any calendar [year] on a regular basis of instances or 

areas in which any national primary ambient air quality standard is exceeded or 

was exceeded during any portion of the preceding calendar year to advise the 

public of the health hazards associated with such pollution, and to enhance public 

awareness of the measures which can be taken to prevent such standards from 

being exceeded and the ways in which the public can participate in regulatory 

and other efforts to improve air quality. Such measures may include the posting of 

warning signs on interstate highway access points to metropolitan areas or 

television, radio, or press notices or information.

(b) The Administrator is authorized to make grants to States to assist in carrying 

out the requirements of subsection (a).

The infrastructure SIP submission would need to show that the air agency does the 

following: regularly notifies the public of instances or areas in which the new or revised primary

NAAQS was exceeded; advises the public of the health hazards associated with such 

exceedances; and enhances public awareness of measures that can prevent such exceedances and 

of ways in which the public can participate in regulatory and other efforts to improve air quality.

40 CFR 51.285 ("Public notification"), repeats the language of CAA section 127. 

Prevention of significant deterioration: The approvability of an air agency’s PSD 

program is essential to the approvability of an infrastructure SIP submission with respect to CAA 

section 110(a)(2)(J). The requirements for Element J in relation to a comprehensive PSD 

permitting program are the same as described earlier in this document with respect to Element C. 

Generally, every PSD-related requirement of Element C applies, including the requirement that 

the PSD permitting program address all regulated pollutants. Please refer to that section. 

Visibility protection: Under 40 CFR part 51 subpart P, implementing the visibility 

requirements of CAA title I, part C, states are subject to requirements for RAVI, new source 

review for possible impacts on air quality related values in Class I areas, and regional haze 

planning. Specific requirements stemming from these CAA sections are codified at 40 CFR 
55 

part 51 subpart P. However, when the EPA establishes or revises a NAAQS, these requirements

under part C do not change. The EPA believes that there are no new visibility protection 

requirements under part C as a result of a revised NAAQS. Therefore, there are no newly 

applicable visibility protection obligations pursuant to Element J after the promulgation of a new 

or revised NAAQS. Air agencies do not need to address the visibility subelement of Element J in 

an infrastructure SIP submission. For clarity’s sake, to better inform the public comment process 

on the SIP submission, the air agency may wish to clearly state that the visibility subelement of 

Element J is not being addressed, and reiterate in the submission that according to EPA’s 

interpretation of the CAA this element does not need to be addressed.

Element K – Section 110(a)(2)(K): Air Quality Modeling and Submission of Modeling Data

Each such plan shall – 

(K) provide for – 

 (i) the performance of such air quality modeling as the Administrator may 

prescribe for the purpose of predicting the effect on ambient air quality of any 

emissions of any air pollutant for which the Administrator has established a 

national ambient air quality standard, and 

 (ii) the submission, upon request, of data related to such air quality modeling to 

the Administrator. 

To meet Element K, the best practice would be for an air agency to submit, for inclusion 

into the SIP (if not already part of the SIP), the statutory or regulatory provisions that provide the 

air agency or official with the authority to perform the following actions along with a narrative 

explanation of how the provisions meet the requirements of this element64: (1) conduct air 

quality modeling to predict the effect on ambient air quality of any emissions of any air pollutant 

for which a NAAQS has been promulgated, and (2) provide such modeling data to the EPA 

Administrator upon request.

 

64 The EPA recognizes that some air agencies may have general authorizing provisions that do not specifically 

enumerate specific activities but do implicitly authorize the air agency to perform such activities, in which case 

inclusion of those provisions would meet the intent of this best practice.
56 

If an air agency chooses not to include the relevant statute or regulations in its SIP, then 

the air agency should provide a reference or citation to the authority provisions, along with a 

narrative explanation of how they meet the requirements of this element, as well as a copy of the 

relevant authority to accompany the SIP as required by 40 CFR 51.231. 

Element L – Section 110(a)(2)(L): Permitting Fees

Each such plan shall – 

(L) require the owner or operator of each major stationary source to pay to the 

permitting authority, as a condition of any permit required under this chapter, a 

fee sufficient to cover – 

 (i) the reasonable costs of reviewing and acting upon any application for such a 

permit, and 

 (ii) if the owner or operator receives a permit for such source, the reasonable 

costs of implementing and enforcing the terms and conditions of any such permit 

(not including any court costs or other costs associated with any enforcement 

action), 

until such fee requirement is superseded with respect to such sources by the 

Administrator's approval of a fee program under subchapter V of this chapter. 

Currently, every state has an EPA-approved fee program under CAA title V. However, 

this fee program is not required to be part of the EPA-approved SIP. The infrastructure SIP 

should provide citations to the regulations providing for collection of permitting fees under the 

state’s EPA-approved Title V permit program. These citations to the EPA-approved title V 

regulations will not cause the title V program to be treated as part of the EPA-approved SIP, and 

the EPA will not re-review the title V program itself in the context of reviewing infrastructure 

SIP submissions. See 40 CFR 70.9 ("Fee determination and certification") and 40 CFR part 70, 

appendix A ("Approval Status of State and Local Operating Permits Programs"). If the state 

title V program fees cover all CAA permitting, implementation, and enforcement for new and 

modified major sources as well as existing major sources, this reference to the title V program 

will satisfy this element. If a state’s approved title V permit program fees do not cover the 

reasonable costs of reviewing and acting upon applications for PSD and NNSR permits for major 
57 

sources65 (along with the reasonable costs of implementing and enforcing the terms and 

conditions of PSD and NNSR permits), then the air agency should contact its Regional Office 

regarding what needs to be in the submission to fulfill this Element.

Element M – Section 110(a)(2)(M): Consultation and Participation by Affected Local 

Entities

Each such plan shall – 

(M) provide for consultation and participation by local political subdivisions 

affected by the plan.

To satisfy Element M, the SIP should provide for consultation with affected local 

political subdivisions. As part of an infrastructure SIP submission, an air agency may simply 

identify its policies or procedures that allow and promote such consultation. For example, the 

infrastructure SIP submission may cite a policy wherein the air agency, before adopting or 

amending a plan, policy, or program, will consult with the regional planning coalition composed 

of local political subdivisions potentially affected by the action and explain how such 

information is used in the development of a SIP submission to the EPA for approval into the SIP. 

The normal public hearing process prior to adoption and submission of a SIP revision may also 

be cited as a component of the provisions for consultation, since leaders of political subdivisions 

have the opportunity to participate in that public process.

For Further Information

If you have any questions concerning this guidance, please contact Mr. H. Lynn Dail, by 

telephone at (919) 541-2363, or by email at dail.lynn@epa.gov, or Ms. Lisa Sutton, by telephone 

at (919) 541-3450 or by email at sutton.lisa@epa.gov. 

 

65 Substantive NNSR provisions will not be reviewed as part of the EPA’s action on the infrastructure SIP 

submission. See discussion in Section II, “Which elements of CAA 110(a)(2) affect infrastructure SIPs?”