ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

EPA·R06-0AR-2009-0656; FRL- ---'

Approval and Promulgation ofImplementation Plans; New Mexico; Interstate Transport

of Pollution; Revisions to Prevention of Significant Deterioration Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)revision

submitted by the State of New Mexico for thepurpose of addressing the "goodneighbor"

provisions of Clean Air Act (CAA) section IIO(a)(2)(D)(i) for the 1997 8-hour ozone National

Ambient Air Quality Standards (NAAQS or standards) and the 1997 PM,s NAAQS. This SIP

revisionaddresses the requirement that the StateofNew Mexico's SIP have adequate provisions

to prohibit airemissionsfrom adversely affectinganother state's airquality through interstate

transport. Inthis action, EPA is proposing to approve theNew Mexico Interstate Transport SIP

provisions that address the requirement ofsection 110(a)(2)(D)(i)(I) that emissions from New

Mexico sources do notinterfere with maintenance ofthe 1997 8-hour ozone NAAQS andthe

1997 PM2.5 NAAQS in any other state. Inaddition, EPA is proposing to approve the provisions

ofthis SIP submission that address the requirement ofsection 11O(a)(2)(D)(i)(1I)that emissions

from New Mexico sourcesdo not interfere with measures required in the SIPof any other state

under part C ofthe CAA to prevent significantdeterioration of airquality. For purposes ofthe
2

1997 8-hour ozoneNAAQS, EPAis alsoproposing to approve a SIP revision that modifies New

Mexico's Prevention of Significant Deterioration (PSD) SIP for the 1997 8-hour ozone NAAQS

to include nitrogen oxides (NOx)as anozone precursor. Thisaction is being taken under section

110 and part C ofthe Clean Air Act (the Act or CAA).

DATES: Comments must bereceived on orbefore [Insertdate 30 days from date of

publication in the Federal Register).

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-0AR-2009-0656,

by one ofthe following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov.

• Followthe online instructions for submitting comments.

• EPA Region 6 "Contact Us" Web site: http://epa.govlregion61r6coment.htm. Please

click on "6PD (Multimedia)" and select"Air" before submitting comments.

• E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please also send a copy by

e-mail to the person listed in the FOR FURTHERINFORMATION CONTACT

section below.

• Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), at fax number 214-

665-7263.

• Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental

Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.

• Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L),

Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas
3

75202-2733. Such deliveries are accepted only between the hours of 8 a.m. and 4

p.m. weekdays, and not on legal holidays. Special arrangements should be made for

deliveries of boxed information.

Instructions: Direct your comments to Docket No. EPA-R06-0AR-2009-0656. EPA's policy is

that all comments received will be included in the public docket without change and may be

made available online at www.regulations.gov, including any personal information provided,

unless the comment includes information claimed to be Confidential Business Information (CBI)

or other information whose disclosure is restricted by statute. Do not submit information that

you consider to be CBI or otherwise protected through www.regulations.gov or e-mail, The

www.regulations.govweb site is an "anonymous access" system, which means EPA will not

know your identity or contact information unless you provide it in the body of your comment. If

you send an e-mail comment directly to EPA without going through www.regulations.govyour

e-mail address will be automatically captured and included as part ofthe comment that is placed

in the public docket and made available on the Internet. If you submit an electronic comment,

EPA recommends that you include your name and other contact information in the body of your

comment and with any disk or CD-ROM you submit. IfEPA cannot read your comment due to

technical difficulties and cannot contact you for clarification, EPA may not be able to consider

your comment. Electronic files should avoid the use ofspecial characters, any form of

encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although

listed in the index, some information is not publicly available, e.g., CBI or other information

whose disclosure is restricted by statute. Certain other material, such as copyrighted material,

will bepublicly available only in hard copy. Publicly available docket materials are available
4

either electronically in www.regulations.govorinhardcopy at the Air Planning Section (6PDL), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

The file will be made available by appointment for public inspection in the Region 6 FOIA

Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays.

Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph

below or Mr. Bill Deese at 214-665-7253 to make an appointment. Ifpossible, please make the

appointment at least two working days in advance of your visit. There will be a 15 cent per page

fee for making photocopies of documents. On the day ofthe visit, please check in at the EPA

Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

The state submittal is also available for public inspection during official business hours, by

appointment, at the New Mexico Environment Department, Air Quality Bureau, 1190 St. Francis

Drive, Santa Fe, New Mexico 87502.

FOR FURTHER INFORMATION CONTACT: Emad Shahin, Air Planning Section (6PDL), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas

75202-2733, telephone (214) 665-6717; fax number (214) 665-7263; e-mail address

shahin. emad@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document wherever "we," "us," or

"our" is used, we mean the EPA.

OUTLINE:

I. What Action is EPA Taking?
5

II. What is a SIP?

III. What is the Background for this Action?

IV. What is EPA's Evaluation of the State's Submission?

V. Statutory and Executive Order Reviews

I. What Action is EPA Taking?

We are proposing to approve a submission from the State of New Mexico

demonstrating that New Mexico has adequately addressed two ofthe required elements of CAA

section 11O(a)(2)(D)(i), the elements that require that the State Implementation Plan prohibit air

pollutant emissions from sources within a state from interfering with maintenance ofthe relevant

NAAQS in any other state, and from interfering with measures required to prevent significant

deterioration of air quality in any other state. We are proposing to determine that emissions from

sources in New Mexico do not interfere with the maintenance ofthe 1997 8-hour ozone NAAQS

or ofthe 1997 PM2.5 NAAQS, or with measures required to prevent significant deterioration of

air quality, with regards to these ozone or PM2.5 NAAQS in any other state. In a separate prior

action, we have addressed the element ofsection 11O(a)(2)(D)(i) that pertains to prohibiting air

pollutant emissions from within New Mexico from significantly contributing to nonattainment of

the 1997 8-hour ozone and 1997 PM" NAAQS in any other state (75 FR 33174). The

remaining section 110(a)(2)(0)(i) element which pertains to interference with measures required

to protect visibility in any other state will be addressed in a future rulemaking.

In conjunction with our proposed finding that emissions from sources in New Mexico

are not interfering with any other state's PSO program, we are also proposing to approve a

portion ofthe SIP revision submitted by the State ofNew Mexico with rule revisions to regulate
6

NOx emissions in its PSDpermit program as a precursor to ozone. At this time, EPA is not

taking action on other portions ofthe SIP revisions submitted by New Mexico together with the

PSD revision.' EPA intends to act on the otherrevisions submitted togetherwith the PSD

program revisions at a later time.

EPA proposes to approve the foregoing revisions relevant to section 11O(a)(2)(D)(i)

and the revisions to the PSD program pursuant to section 110 and part C ofthe CAA.

II. What is a SIP?

Section IIO(a) 01 the Clean Air Act (CAA) requires each state to develop a plan that

provides for the implementation, maintenance, and enforcement ofthe national ambient air

quality standards (NAAQS). EPA establishes NAAQS under section 109 ofthe CAA.

Currently, the NAAQS address six criteria pollutants: carbon monoxide, nitrogen dioxide,

ozone, lead, particulate matter, and sulfur dioxide.

The plan developed by a state is referred to as the state implementation plan (SIP).

The content ofthe SIP is specified in section 110 ofthe CAA, other provisions ofthe CAA, and

applicable regulations. SIPs can beextensive, containing state regulations or other enforceable

measures and various types ofsupporting information, such as emissions inventories, monitoring

networks, and modeling demonstrations.

A primary purpose ofthe SIP is to provide the air pollution regulations, control strategies,

and other means or techniques developed by the state to ensure that the ambient air within that

state meets the NAAQS. However, another important aspect ofthe SIP is to ensure that

emissions from within the state do not have certain prohibited impacts upon the ambient air in

1 As noted later in this action, these revisions are separate from the New Mexico PSD revisions and are to 20.2.2

NMAC, Definitions and 20.2.79 NMAC, Permits-Nonattainment areas.
7

other states through interstate transport of pollutants. This SIP requirement is specified in

section IIO(a)(2)(D) ofthe CAA. Pursuant to that provision, each state's SIP must contain

provisions adequate to prevent, among other things, emissions that interfere with maintenance of

the NAAQS in any otherstate or interfere withmeasures required to be included in the SIP of

any otherstate to prevent significantdeterioration of air qualityin such otherstate.

Statesare required to update or revise SIPs under certain circumstances. One such

circumstance is EPA's promulgation of a new or revised NAAQS. Eachstate mustsubmit these

revisions to EPA for approval andincorporation into the federally-enforceable SIP.

III. What is the Background for this Action?

On' July 18, 1997, EPA promulgated new NAAQS for 8-hour ozone and for fine

particulate matter (PM2.5). This action is being takenin responseto the promulgation ofthe 1997

8-hourozone NAAQS and 1997 PMz.5 NAAQS. This action does not address the requirements

for the 2006 PM,.5 NAAQS or the 2008 8-hour ozone NAAQS; those standards will be

addressed in later actions.

Section II00a)(I) ofthe CAArequires states to submit SIPsto address a new or revised

NAAQS within 3 years afterpromulgation ofsuch standards, or within such shorter period as

EPA may prescribe. Section II 0(a)(2) lists the elements thatsuch new SIPs must address, as

applicable, including section 11O(a)(2)(D)(i), which pertains to interstate transport of certain

emissions. On August 15, 2006, EPA issued its "Guidance for State Implementation Plan(SIP)

Submissions to Meet Current Outstanding Obligations Under Section II 0(a)(2)(D)(i) for the 8-

Hour Ozone and PM, 5National Ambient Air Quality Standards" (2006 Guidance). EPA

developed the 2006 Guidance to make recommendations to statesfor making submissionsto
8

meet the requirements ofsection 110(a)(2)(D)(i) for the 1997 8-hour ozone standards and the

1997 PM,., standards.

Asidentified in the 2006Guidance, the "good neighbor" provisions in section

110(a)(2)(D)(i) require each state to submit a SIP that prohibits emissions that adversely affect

another state in the ways contemplated in the statute. Section 11O(a)(2)(D)(i) contains four

distinct requirements related to the impacts ofinterstate transport. The SIP must prevent sources

in the state from emitting pollutants in amounts which will: (1) contribute significantly to

nonattainment ofthe NAAQS in other states; (2) interfere with maintenance ofthe NAAQS in

other states; (3) interfere with provisions to prevent significant deterioration of air quality in

other states; or (4) interfere with efforts to protect visibility in other states.

On September 17, 2007, EPA received a SIP revision from the State ofNew Mexico

intended to address the requirements ofsection II 0(a)(2)(D)(i) for both the 1997 8-hour ozone

standards and the 1997 PM2.5 standards. In this rulemaking, EPA is addressing only the

requirements that pertain to preventing sources in New Mexico from emitting pollutants that will

interfere with maintenance ofthe 1997 8-hour ozone NAAQS and the 1997 PM2.5 NAAQS in

other states, or that will interfere with measures required to prevent significant deterioration of

air quality in other states with respect to these NAAQS. In its submission, the State ofNew

Mexico indicated that its current SIP is adequate to prevent such interference, and thus argued

that no additional emissions controls or other revisions are necessary at this time to alleviate

interstate transport for the 1997 8 hour ozone NAAQS or the 1997 PM,s NAAQS. With this

submission, the state would meet the first and second elements ofsection 11O(a)(2)(D)(i).

On August 31, 2009, the New Mexico Environment Department (NMED) also adopted

revisions to its PSD SIP in response to revisions required by EPA for the 1997 8-hour ozone
9

NAAQS. EPA received these revisions on September 21, 2009. These submitted PSD revisions

included changes to 20.2.74 NMAC (New Mexico Administrative Code) for "Permits cPrevention of Significant Deterioration (PSD)" necessary to address NOx as a precursor for the

1997 8-hour ozone NAAQS. The submittal contained revisions to Subsections 20.2.74.7

NMAC, Definitions; 20.2.74.502 NMAC, Table 2, Significant Emission Rates inclusion of

nitrogen oxides rate for ozone; and 20.2.74.503 NMAC, Table 3, Significant Monitoring

Concentrations, Footnote b, inclusion of baseline threshold for nitrogen oxides for requirements

in ambient impact analysis.

With EPA's approval ofthis revision, that includes NOx as a precursor ofthe 19978-

hour ozone NAAQS, New Mexico's PSD SIP will include changes necessary to implement the

1997 8-hour ozone NAAQS within the state as contemplated in the 2006 Guidance for SIP

submissions to meet the third element ofsection 110(a)(2)(D). The submittal also contained

revisions to 20.2.2 NMAC, Definitions and 20.2.79 NMAC, Permits - Nonattainment Areas. At

this time, EPA is not taking action on these other SIP revisions submitted with the PSD SIP

revisions.

IV. What is EPA's Evaluation of the State's Submission?

A. EPA's Evaluation of Interference with Maintenance

The second element ofsection IIO(a)(2)(D)(i) reqnires that a state's SIP must prohibit

any source or other type of emissions activity in the state from emitting pollutants that would

"interfere with maintenance" ofthe applicable NAAQS in any other state. This term is not

defined in the statute. Therefore, EPA has interpreted this term in past regulatory actions, such
10

as the 1998 NOx SIP Call, in which EPA took action to remediate emissions of NOx that

significantly contributed to nonattainment, or interfered with maintenance of, the then applicable

ozone NAAQS through interstate transport ofNOx and the resulting ozone.' The NOx SIP Call

was the mechanism through which EPA evaluated whether or not the NOx emissions from

sources in certain states had such prohibited interstate impacts, and ifthey had such impacts,

required the states to adopt substantive SIP revisions to eliminate those NOx emissions, whether

through participation in a regional cap and trade program or by other means.

After promulgation ofthe 1997 8-hour ozone NAAQS and the 1997 PM,s NAAQS, EPA

again recognized that regional transport was a serious concern throughout the eastern U.S. and

therefore developed the 2005 Clean Air Interstate Rule (CAIR) to address emissions of S02 and

NOx that exacerbate ambient ozone and PMZ.

5 levels in many downwind areas through interstate

transport.' Within CAIR, EPA likewise interpreted the term "interfere with maintenance" as part

ofthe evaluation of whether or not the emissions ofsources in certain states had such impacts on

areas that EPA determined would either be in violation ofthe NAAQ8, or would be in jeopardy

of violating the NAAQ8, in a modeled future year unless action were taken by upwind states to

reduce 802 and NOx emissions. Through CAIR, EPA again required states that had such

interstate impacts to adopt substantive SIP revisions to eliminate the 802 and NOx emissions,

whether through participation in a regional cap and trade program or by other means.

EPA's 2006 Guidance addressed section IlO(a)(2)(D) requirements for the 1997 8-hour

ozone NAAQS and 1997 PM,.> NAAQS. For those states subject to CAIR, EPA indicated that

compliance with CAIR would meet the two requirements ofsectioo 11O(a)(2)(D)(i)(I) for these

2 See, 63 FR 57356 (October 27, 1998). EPA's general approach to section 11O(aX2XD) was upheld in Michigan

v, EPA, 213 F.3d663 (D.C. err. 2000), cert denied, 532 u.s. 904 (2001). However, EPA's approach to

interference with maintenance in the NOx SIP Call was not explicitly reviewed by the court. See, North

Carolina v. EPA, 531 F.3d 896, 907 -09 (D.C. Cir. 2008).

3 See, 70 FR 25162 (May 12, 2005).
11

NAAQS. For states not within the CAIR region, EPA recommended that states evaluate

whetheror not emissions fromtheir sources would "interferewith maintenance" in other states,

following the conceptual approach adopted by EPA in CAIR. After recommending various types

of information that could be relevant for the technical analysis to support the SIP submission,

such as the amount of emissions and meteorological conditions in the state, EPA further

indicated that it would be appropriate for the state to assess impacts of its emissions on other

states using considerations comparable to those used by EPA "in evaluating significant

contribution to nonattainment in the CAIR.,,4 EPA did not make specific recommendations for

how states should assess "interfere with maintenance" separately, and discussed the first two

elements ofsection 110(a)(2)(0) together without explicitly differentiating between them.

In 2008, however, the u.s. Court of Appeals for the D.C. Circuit found that CAIR and

the related CAIR federal implementation plans were unlawful. 5 Among other issues, the court

held that EPA had not correctly addressed the second element ofsection I 10(a)(2)(D)(i)(I) in

CAIR. The court noted that "EPA gave no independent significance to the 'interfere with

maintenance' prong ofsection 110(a)(2)(D)(i)(I) to separately identify upwind sources

interfering with downwind maintenance.,,6. EPA's approach, the court reasoned, would leave

areas that are "barely meeting attairunent" with "no recourse" to address upwind emissions

sources," The court therefore concluded that a plain language reading ofthe statute requires EPA

to give independent meaning to the interfere with maintenance requirement ofsection

I IO(a)(2)(D) and that the approach used by EPA in CAIR failed to do so.

4 2006 Guidance at page 5.

5 See, North Carolina v. EPA, 531 F.3d 896 (D.C. Circuit 2008).

6 ld. 531, F.3d at 909.

7Id.
12

In addition to affecting CAIR directly, the court's decision in the North Carolina case

indirectly affects EPA's recommendations to states in the 2006 Guidance with respect to the

interfere with maintenance element ofsection 110(a)(2)(D) because the agency's guidance

suggested that states use an approach comparable to that used by EPA in CAIR. States such as

New Mexico have already made SIP submissions that rely upon the recommendations in EPA's

2006 Guidance, and accordingly may not have sufficiently differentiated between the significant

contribution to nonattainment and interfere with maintenance elements ofthe statute. Given the

court decision on CAIR in the interim, however, EPA believes that it is necessary to evaluate

these state submissions for section 11O(a)(2)(D) in such a way as to assure that the interfere with

maintenance element ofthe statute is given independent meaning and is appropriately evaluated

using the types of information that EPA recommended in the 2006 Guidance. To accomplish

this, EPA believes it is necessary to use an updated approach to address this issue and to

supplement the technical analysis provided by the state in order to evaluate the submissions with

the respect to the interfere with maintenance element ofsection IIO(a)(2)(D).

EPA hasrecently proposed a new rule to address interstate transport pursuant to section

llO(a)(2)(D), the "Federal Implementation Plans to Reduce Interstate Transport ofFine

Particulate Matter and Ozone" (Transport Rule Proposal), in order to address the judicial remand

of CAIR. 8 As part ofthe Transport Rule Proposal, EPA specifically reexamined the section

110(a)(2)(D) requirement that emissions from sources in a state must not "interfere with

maintenance" ofthe 1997 8-hour ozone NAAQS and 1997 PM" NAAQS in other states. In the

proposal, EPA developed an approach to identify areas that it predicts to be close to the level of

the 1997 8-hour ozone NAAQS and 1997 PM" NAAQS, and therefore at risk to become

8 See "Federal Implementation Plans to Reduce Interstate Transport ofFine Particulate Matter and Ozone," 75 FR

45210 (August 2, 2010).
13

nonattainment forthese NAAQS unless emissions from sources in other statesare appropriately

controlled. This approach starts by identifying those specific geographic areas for which further

evaluation is appropriate, and differentiates between areaswhere the concern is with interference

with maintenance, rather than with significant contribution to nonattainment.

As described in more detail below, EPA's analysis evaluates data from existing monitors

over three overlapping three year periods (i.e., 2003-2005, 2004-2006, and 2005-2007), as well

as air quality modeling data, in order to determine which areas are predicted to be violating the

1997 ozone and PM2.S NAAQS in 2012, and which areas are predicted to potentially have a

difficulty with maintaining attainment as ofthat date. In essence, if an area's projected data for

2012 indicates that it would he violating the NAAQS based on the average ofthese three

overlapping periods, then this monitor location is appropriate for comparison for purposes ofthe

significant contribution to nonattainment element ofsection 11O(a)(2)(D). If, however, an area's

projected data indicate that it would be violating the NAAQS based on the highest single period,

but not over the average ofthe three periods, then this monitor location is appropriate for

comparison for purposes ofthe interfere with maintenance element ofthe statute."

By this method, EPA has identified those areas with monitors that are appropriate

"maintenance sites" or maintenance "receptors" for evaluating whether the emissions from

sources in another state could interfere with maintenance in that particular area. EPA then uses

other analytical tools to examine the potential impacts of emissions from upwind states on these

maintenance sites in downwind states. EPA believes that this new approach for identifying those

9 A memorandum in the docket for this action provides the information EPA used in order to identify monitors that

are receptors for evaluation of interference with maintenance for certain states in the western United States.

See, Memorandum from Brian Timin ofEPA's Office of Air Quality Planning and Standards, Air Quality

Modeling Group entitled "Documentation ofFuture Year Ozone and Annual PM2.5 Design Values for Western

States" (August'2010) (Timin Memo).
14

areas that are predicted to have maintenance problems is appropriate to evaluate the section

110(a)(2)(D) SIP submission of a state for the interfere with maintenance element. 10 EPA's

2006 Guidance did notprovide thisspecific recommendation to states, but in light of the court's

decision on CAIR. EPA will itself follow this approach in acting upon the New Mexico

submission.

As explained in the 2006 Guidance, EPA does not believe that section 110(a)(2)(D) SIP

submissions from all states necessarily need to follow precisely the same analytical approach of

CAIR. In the 2006 Guidance, EPA stated that: "EPA believes that the contents ofthe SIP

submission required by section llO(a)(2)(D) may vary, depending upon the facts and

circumstances related to the specific NAAQS. In particular, the data and analytical tools

available at the time the State develops and submits a SIP for a new or revised NAAQS

necessarily affects the contents ofthe required submission."ll EPA also indicated in the 2006

Guidance that it did not anticipate that sources in states outside the geographic area covered by

CAIR were significantly contributing to nonattainment, or interfering with maintenance, in other

srates.P As noted in the Transport Rule Proposal, EPA continues to believe that the more

widespread and serious transport problems in the eastern United States are analytically distinct 13

For the 1997 8-hour ozone NAAQS and the 1997 PM,s NAAQS, EPA believes that

nonattainment and maintenance problems in the western United States are relatively local in

nature with only limited impacts from interstate transport. In the Transport Rule Proposal, EPA

did not calculate interstate ozone or PM2.5 contributions to or from Western States.

10 To begin this analysis, EPA first identifies all monitors projected to be in nonattainment or, based on historic

variability in air quality, projected to have maintenance problems in 2012. The "problem" is that these

maintenance areas are at risk not to stay in attainment because they are so close to the level ofthe 1997 ozone

and PM2,~ NAAQS that minor variations in weather or emissions could result in violations ofthe NAAQS in

20t2.

II 2006 Guidance at 4.

12 Id. at 5.

13 See, Transport Rule Proposal, 75 FR 45210 (August 2, 2010) at page 45227.
15

Accordingly, EPA believes that section 110(a)(2)(D) SIP submissions for states outside

the geographic area of the Transport Rule Proposal may be evaluated using a "weight ofthe

evidence" approach that takes into account the available relevant information, such as that

recommended by EPA in the 2006 Guidance for states outside the area affected by CAIR. Such

information may include, hut is not limited to, the amount of emissions in the state relevant to

the NAAQS in question, the meteorological conditions in the area, the distance from the state to

the nearest monitors in other states that are appropriate receptors, or such other information as

may be probative to consider whether sources in the state may interfere with maintenance ofthe

1997 8-hour ozone NAAQS and 1997 PM,s NAAQS in other states. These submissions can rely

on modeling when acceptable modeling technical analyses are available, but EPA does not

believe that modeling is necessarily required if other available information is sufficient to

evaluate the presence or degree ofinterstate transport in a given situation.

B. New Mexico Transport SIP

To meet the requirements ofsection 110(a)(2)(D), the State ofNew Mexico made a SIP

submission to address interstate transport for the 1997 8-hour ozone NAAQS and the 1997 PM2,5

NAAQS. EPA has previously approved this submission for purposes ofthe significant

contribution to nonattainment element ofsection 11O(a)(2)(D).14 Below, we discuss our

evaluation ofthe state's submission with respect to the interference with maintenance element

and the interference with measures required to prevent significant deterioration of air quality

element.

a. Interference with Maintenance

14 See, 75 FR 33174 (June 11,2010).
16

The State's submittal focused primarily on whetheremissions from NewMexico sources

significantly contribute to nonattainment ofthe 1997 8-hour ozone NAAQS and 1997 PM"

NAAQS in other states. Following the 2006 Guidance and consistent with EPA's approach in

CAIR, New Mexico did not evaluate whether emissions from New Mexico sources interfere with

maintenance ofthese NAAQS in other states separately from significant contribution to

nonattainment in other states. Instead, the state presumed that ifNew Mexico sources were not

significantly contributing to violations ofthe NAAQS in other states, then no further specific

evaluation was necessary for purposes ofthe interfere with maintenance element ofsection

110(a)(2)(D). As explained above, however, CAIR was remanded to EPA, in part because the

court found that EPA had not correctly addressed whether emissions from sources in a state

interfere with maintenance ofthe standards in other states. Therefore, EPA must evaluate the

New Mexico submission in light ofthe decision ofthe court.

On July 6, 2010, the EPA Administrator signed a proposed rule in response to the judicial

remand ofCAIR. The Transport Rule Proposal includes a new approach to determine whether

emissions from a state interfere with maintenance ofthe 1997 8-hour ozone NAAQS and the

1997 PM" NAAQS in other states. EPA is using a comparable approach to that ofthe Transport

Rule Proposal in this action in order to determine if emissions from New Mexico sources

interfere with maintenance ofthese NAAQS in other states.

In the Transport Rule Proposal, EPA projected future concentrations of ozone and PM2.s

to identify areas that are expected to be out of attainment with NAAQS or to have difficulty

maintaining compliance with the NAAQS in 2012. These areas are referred to as nonattainment

and maintenance receptors respectively. These nonattainment and maintenance receptors are

based on projections offuture air quality at existing ozone and PM2,s monitoring sites in those
17

locations. EPA then used these sites as the receptors for examining the contributions of

emissions from sources located in upwind states to nonattainment and maintenance problems at

these monitoring locations. Monitoring data was obtained from EPA's Air Quality System

(AQS).

For ozone, EPA evaluated concentrations relevant to the 1997 8-hour ozone NAAQS.

The level ofthe 1997 8-hour ozone NAAQS is 0.08 parts per million (ppm). The 8-hour ozone

standard is met if the 3-year average ofthe annual 4th highest daily maximum 8-hour ozone

concentration is less than or equal to 0.08 ppm (i.e., less than 0.085 ppm based on the rounding

convention in 40 CFR part 50 Appendix I). This 3-year average is referred to as the "design

value. "

For PMz.5, EPA evaluated concentrations ofboth the annual PM2.5NAAQS and the 24-

hour PM" NAAQS. The 1997 annual PM,s NAAQS is met when the 3-year average ofthe

annual mean concentration is 15.0 micrograms per cubic meter (ug/m') or less. The 3-year

average annual mean concentration is computed at each site by averaging the daily Federal

Reference Method (FRM) samples by quarter, averaging these quarterly averages to obtain an

annual average, and then averaging the three annual averages to get the design value. The 2006

24-hour PM2.5NAAQS is met when the 3-year average ofthe annual 98th percentile PM2,5

concentrations is 35 Jlg/m3 or less. The 1997 24-hour PM2.5 NAAQS is met when the 3-year

average ofthe annual9Sthpercentiles is 65 Jlg/m3 or less. The 3-year average mean 98th

percentile concentration is computed at each site by averaging the 3 individual annual 98th

percentile values at each site. The 3-year average 98th percentile concentration is referred to as

the 24-hour average design value. In this action, EPA is only evaluating whether New Mexico's

emissions impact other states' ability to maintain the 1997 annual and 24-hour PM2.5 NAAQS
18

and the 1997 8-hour ozone NAAQS, because those are the NAAQS at issue in this section

110(a)(2)(D) SIP submission. In later actions, the state and EPA will evaluate the impacts of

interstate transport from emissions fromNew Mexico sources with respect to otherNAAQS.

To project future ozone and annual PM2.5 design values, EPA projected future ozone

values based on an average ofthree design value periods which include the years 2003-2007

(i.e., design values for 2003-2005, 2004-2006, and 2005-2007). The average ofthe three design

values creates a "5-year weighted average" value. The 5-year weighted average values were

then projected to the future years that were analyzed for the Transport Rule Proposal. 15,16 EPA

used the 5-year weighted average concentrations to project concentrations anticipated in 2012 to

determine which monitoring sites are expected to be nonattainment in this future year. EPA also

projected 2012 design values based on each ofthe three year periods (i.e., 2003-2005, 2004-

2006, and 2005-2007). The highest projection is referred to as the "maximum design value" and

gives an indication of potential variability in future projections due to differences in actual

meteorology and emissions from what was modeled.

EPA identified those sites that are projected to be attainment based on the 5-year

weighted average design value. but that have a maximum design value (based on a single three

year period) that exceeds the NAAQS, as maintenance sites because EPA anticipates that there

will be more difficulty in maintaining attainment ofthe NAAQS at these locations ifthere are

adverse variations in meteorology or emissions. These projected maintenance sites are the ones

that EPA has used to determine if emissions from New Mexico sources potentially interfere With

maintenance ofthe 1997 8-hour ozone NAAQS and 1997 armual PM,., NAAQS in other states

in this action.

15 See, the Transport Rule Proposal at 75 FR 45210 (August 2, 2010).

16 Additional information concerning these weighted averages is provided in the docket in the Timin Memo.
19

Fromthe modeling analyses conducted for the Transport Rule Proposal, EPAidentified

the following maintenance sites or receptors for the 1997 8-hour ozone NAAQS: several sites in

the Dallas-Ft.Worth (DFW) area; several sites in the HoustoniGalvestonlBrazoria (Houston)

area; and othermore distant sites in Georgia, Pennsylvania, New Yorkand Connecticut." For

assessing New Mexico's potential for impacts on maintenance receptors, the DFW and Houston

areas seem to have the highest probability of potential impact from New Mexico emissions. For

the modeling analysis conducted for states not included in the Transport Rule Proposal (i.e. states

not included fully in the 12 km Transport Rule Proposal modeling domain), EPA identified

several maintenance sites for the 1997 8-hour ozone NAAQS in southern and central California

using available 36 km modeling. IS The 12 km Transport Rule Proposal modeling domain

extends from Texas northward to North Dakota and eastward from the Rocky Mountains to the

East Coast and includes 37 states and the District ofColumbia. Significantly, EPA's analysis did

not identify any monitor sites in the states that border New Mexico (Texas, Arizona, Colorado,

Utah, and Oklahoma), other than the noted Texas areas, as maintenance sites in the Transport

Rule Proposal.

For the annual PM,., NAAQS, EPAidentified the following sitesas maintenance

receptors: a site in Cook County, Illinois in the Chicago area; a site in Harris County, Texas, in

the HoustoniGalvestonIBrazoria area; and two sites in southern California. As part ofthe

Transport Rule Proposal, EPA did not evaluate nonattainment receptors for the 1997 24-hour

PM2.5 NAAQS because there were no violations ofthe standard in portions ofthe U.S. covered

17Transport Rule Proposal, 75 FR 45210, (August 2, 2010), pages 45253-45270, and Timin Memo.

11 The Transport Rule Proposal identifies nonattainment and maintenance receptors in the Eastern U.S. It does not

include modeling results for the West. The Timin Memo docwnents further evaluation ofthe 2012 modeling to

identify nonattainment and maintenance receptors in the West.
20

by the 12 Ian grid, which consists ofthe continental U.S. east ofthe Rockies." In fact, based on

recent monitoring data (2007-2009 design values that are under final EPA review), the highest

24-hour PM 2.5 design value in the 47 states ofthe continental U.S. (not including California) is

50 ~g/m3, which is well below the level ofthe 1997 24-hour PM,s NAAQS of 65 ~g/m3 20

Therefore, outside ofCalifornia, there are no areas that we would expect to have difficulty in

maintaining the1997 24-hour PM2.5 NAAQS. We address the potential for interference with

maintenance in California for the 1997 24-hour PM2.5 NAAQS later in this notice.

EPA has evaluated available analyses and conducted additional analyses for each ofthese

identified maintenance sites that may be potentially impacted by emissions from sources in New

Mexico. Using the same proposed screening thresholds for analyzing a state's impacts on

another state's maintenance sites that are used in the Transport Rule Proposal, we have

determined that emissions from New Mexico do not have a large enough impact on any ofthese

identified maintenance sites to interfere with maintenance.r' For the reasons discussed below,

EPA has determined that emissions from New Mexico do not interfere with maintenance ofthese

NAAQS in any other state.

Ozone Interfere with Maintenance Evaluation

19 Id., EPA did not calculate model projections for the 24-hour PMI.~ NAAQS in the 36km modeling domain.

ae Data undergoing review from EPA's Air Quality System which is EPA's repository of ambient air quality data.

(http://www.epa.gov/ttn/airs/airsaqs!).

II Transport Rule Proposal, 75 FR 45210 (August 2, 2010), pages 45253-45270. The Transport Rule Proposal

included proposed screening thresholds, using I% ofthe NAAQS, for detennining if a State should be evaluated

for emission reductions from the Transport Rule. The proposed thresholds were 0.15 /-lg/m3 or more contribution

to annual PM I_~, 0.35 /-lg/m3 or more contribution to the 1997 24-hour PMI_~ NAAQS, and 0.8 ppb or more

contribution to the 1997 8-hour ozone NAAQS for States which contribute to nonattainment or maintenance sites

in another state. In this notice, we are using the same 1% contribution thresholds in this notice ofO.IS /-lglm3 for

the annual PM2.5 NAAQS, 0.8 ppb or more for the 1997 8-hour ozone NAAQS. We are proposing a similar 1%

threshold of 0.65 /-lglmJ or more for the 1997 24-hour PM2,~ NAAQS.
21

EPA evaluated whether emissions from sources in New Mexico could interfere with

maintenance of the 1997 8-hourozone NAAQS in other states by consideringthe potential

impacts of such sources on projectedmaintenance sites in California, Texas, and points much

further to the east. As discussed in more detail in the Technical Support Document (TSD) for

this action, EPA concluded that such impacts were most likely to be from New Mexico sources

to the Houston and DFW areas and that even those impacts are very small and below the level

EPA considered the initial threshold for further evaluation in the Transport Rule Proposal.

EPA did not separately determine the impacts ofNew Mexico's emissions on other States

as part ofthe Transport Rule Proposal analysis because New Mexico was partially outside the 12

kilometer grid. Other modeling was available to evaluate the impact ofNew Mexico's emissions

on the 8-hour ozone maintenance sites that EPA identified in the Houston and DFW areas. EPA

has conducted a modeling estimate of impacts from New Mexico's emissions using the Central

Regional Air Planning Association (CENRAP) modeling of 2002 emissions and meteorology",

The CENRAP modeling that EPA utilized was an earlier version ofthe CENRAP modeling that

a number ofstates submitted as part oftheir Regional Haze State Implementation Plan submittals

and is currently being reviewed by EPA. EPA's source apportionment CENRAP modeling for

the 8-hour ozone NAAQS was conducted in 2006 to help provide New Mexico and other states

with a technical analysis for the llO(a)(2)(D) SIP submissions.

As discussed above, the CENRAP modeling evaluated New Mexico's impact based on

emission and meteorological conditions in 2002. For the reasons discussed below, EPA believes

that this modeling is in fact a more conservative approach to evaluate the potential for impacts on

other states since it uses a 2002 inventory rather than a 20 I0 or 2012 emission inventory. The

22 Appendix G ofNew Mexico's SIP submittal for llO(aX2)(dXi), "11O(a)(2XdXi) Modeling Technical Support

Document",
22

2002 analysis would include more emissions within the modelingdomain becauseof decrease in

emissions after 2002 due to federal measures (such as fleet turnover and cleaner vehicles) and

localreductions in DFW, Houston, and other parts of the modeling grid.

As mentioned previously, the evaluationwas based on an earlier version of the model.

Source apportionment results are not available for the final version ofthe model. Ifresults were

available, we do not expect them to he significantly different than the earlier version and any

differences would be more than offset by the conservative nature of using the 2002 emissions.

EPA analyzedsource apportiomnent modeling with the 2002 basedCENRAP modeling

and concluded that maximumimpacts from the emissionsof New Mexico sourceswould be

0.2% of the NAAQS in the DallaslFt. Worth area and 0.4% of the NAAQS in the Houston area,

which are less than the one percent ofthe NAAQS screening threshold (0.8 parts per billion)

which EPA used in the Transport Rule Proposal to identify states for further analysis and the

threshold that we are proposing for our determination, The methodology EPA used in the

Transport Rule Proposal to determine if a state's emissions exceeded the one percent ofthe

NAAQS considered the average impact of a state on a downwind monitoring site in another

state. Comparing the maximum impacts shown by the CENRAP modeling to the Transport Rule

Proposal screening threshold is a conservative approach, because the average impact over all

exceedance days at sites in DFW or Houston would be lower. Furthermore, EPA considers the

CENRAP modeling analysis conservative because it relies on 2002 emission inventory levels,

whereas additional emission reductions have occurred in New Mexico and throughout the

modeling domain due to fleet turnover and other measures to reduce air pollution between 2002

and 2010 that would result in lower overall pollution levels iftaken into account. EPA believes

that using the existing CENRAP analysis provides a conservative basis for concluding that
23

emissions fromNewMexico do not havea substantial impact at 1997 8-hour ozone NAAQS

maintenance receptors outside the state.

In addition, EPAhasreviewed otheravailable information concerning the causeof higher

ozoneconcentration levels in the DFW and Houston areas, andthis further confirms thatwhen

these two areas experience elevated ozone levels, the meteorological patterns only rarely trace

the origins ofthese air masses to the New Mexico area.

23 Because available evidence indicates

that New Mexico emissions are not impacting ozone levels in the DFW and Houston areas to a

degree that constitutes interference with maintenance, it is improbable that New Mexico

emissions would have such impacts at other identified maintenance sites much farther to the east.

EPA believes that the only other identified maintenance sites for 1997 8-hour ozone NAAQS

that might be impacted by New Mexico sources are in southern and central California. As

further discussed in the TSD for this notice, however, EPA has concluded that the meteorological

patterns (e.g., prevailing winds and meteorology that occur when ozone exceedances occur) do

not transport emissions from New Mexico to California when California has elevated ozone

levels, and that the relatively long distance and the intervening mountainous topography further

support this conclusion.

PM] 5 Interfere with Maintenance Evaluation

EPA evaluated whether emissions from sources in New Mexico could interfere with

maintenance in other states by considering the potential impacts ofsuch sources on projected

maintenance receptors in Illinois, California, and Texas. As discussed in more detail in the TSD

23 Further details are included in the Modeling TSD Memorandum for this notice.
24

for this action, EPA concluded that such impacts were most likely to be from New Mexico

sources to the Houston area, and that those impacts are shown to be very small.

For the 1997 annual PM,.>NAAQS site located in the Chicago area, previous EPA

modeling developed for the 2004 CAIR proposal indicated that impacts from New Mexico's

emissions was 0.02 J.1g1mJ

,24 which is well below the one percent ofthe NAAQS (i.e. (0.15

J.1g1mJ» threshold that EPA has proposed as the initial threshold for interference with

maintenance in the Transport Rule Proposal for the 1997 annual PM,.>NAAQS. The CAIR

proposal modeling used a 2010 future year assessment versus the 2012 year used in the

Transport Rule Proposal, but EPA believes that the emissions would be similar and that the 2010

analysis would actually have included somewhat more emissions within the modeling domain

because it included two fewer years ofreductions from federal measures (e.g., fleet turnover). In

summary, the results ofanalysis using 20 I0 would be expected to be similar to but slightly more

conservative than would he expected for 2012. Therefore, we helieve the 2004 CAIR modeling

adequately demonstrates that New Mexico's emissions do not interfere with maintenance in the

Chicago area.

EPA did not separately calculate the impact of New Mexico's emissions on the Houston

area as part ofthe CAIR modeling or in the Transport Rule Proposal modeling, but EPA helieves

that one can infer from New Mexico's extremely small impact on other areas that New Mexico's

impact on the Houston area would also be less than one percent ofthe NAAQS. The only

modeling available that provided source apportionment for annual PM2.5 values is the CAIR

proposal modeling. The CAIR source apportionment results that would be expected to most

closely match Houston from a transport phenomena perspective are the results for potential

24 EPA's "Technical Support Document for the Interstate Air Quality Rule Air Quality Modeling Analyses

Appendix H, PM2,5 Contributions to Downwind Nonattainment Counties in 20to", January 2004.
25

impacts on 81. Louis. St. Louis is helpful for comparison because, while not the samedirection

from New Mexico it is the closest area evaluated in the CAIR proposal modeling that is to the

east (in the same general transport direction) and at a similardistance fromNew Mexico as

Houston.

For the St. Louis area, the CAIR proposal modeling indicated that a maximum impact

from New Mexico's emissions of 0.02 J..lg/m3

, which is well below the 1% ofthe NAAQS

screening threshold. The majority ofthe emissions ofPM2.5 and PM25 precursors from New

Mexico sources emanate from either the Albuquerque area or from points father west, so it is a

useful point from which to evaluate the relative distances, The distance from Albuquerque to 81.

Louis, Missouri is approximately 920 miles and the distance from Albuquerque to Houston is

about 750 miles, which is about 81.5 % ofthe distance from Albuquerque to St. Louis." Even if

one conservatively assumed that New Mexico emissions had twice the impact on Houston that

EPA determined they do on St Louis due to the shorter transport distances, New Mexico's

impact on Houston would still be significantly below the 1% ofthe NAAQS threshold in the

Transport Proposal. Given that the difference in distances is only 18.5 %, this is a conservative

analysis that would indicate no significant impacts would beexpected from New Mexico on sites

in Houston, Texas.

Also, the relative amounts of emissions in New Mexico, when compared to the emissions

in Texas, support the conclusion that New Mexico emissions do not interfere with maintenance

in areas in Texas. Using databases developed in connection with the Regional Haze (RH)

program and submitted with the RH SIPs, the Texas emissions ofS02 are approximately 18

2S TSD. EPA believes that such a comparison is instructive because the majority of relevant New Mexico

emissions occur from sources or activities located in the Albuquerque metropolitan area, or in areas further to the

west. Even if measured from the New Mexico state border to St. Louis and Houston, however, the proportional

impact would presumably be comparable.
26

times largerthan New Mexico's, the NOx emissionsare approximately 5 times greaterthan New

Mexico's, the fine particulate matteremissionsare 12 times greaterthan New Mexico's and the

coarse particulate matter is 5.6 times greaterthan New Mexico's emissions. The Transport Rule

Proposal modeling information also includes emission summaries that indicate that Texas's

emissions are 1,338,429 tpy ofNOx and 639.505 tpy 0[802 whereas New Mexico's emissions

are 240,892 tpy ofNOx and 24,930 tpy ofS02. Both sets of data indicate that New Mexico's

emissions are much lower than Texas's emissions ofPM2.S precursors. Moreover, most ofthe

sources ofPM2.S precursor emissions in Texas are much closer to the maintenance receptor in

Houston, and therefore less dispersion ofthe pollutants occurs, so Texas's own PM2.S and PM2.5

precursors will have a much larger impact on PM2,s levels in Houston.

In addition, the Texas Commission on Environmental Quality (TCEQ) and several

researchers have conducted research into the likely causes of elevated annual and 24-hour PM2.s

monitoring values in the Houston area. TCEQ and the researcher's analyses do not indicate that

emissions from New Mexico impact Houston to a degree to raise a concern for purposes ofthe

1997 PM2.S NAAQS. These analyses indicate that meteorological patterns are transporting air

masses from other directions (i.e., not from the direction ofNew Mexico) when Houston area

sites are monitoring elevated PM2.s1eveis that have the greatest impact on the annual DV.26 As

discussed further in the TSD, distance between the emission sources and the maintenance

receptors and meteorological patterns during times of elevated pollution levels in Chicago and

Houston also support the conclusion that New Mexico's emissions do not interfere with

maintenance ofthe NAAQS in these areas. In summary, considering the available evidence,

26 "Source Apportionment for PM2.5at Houston Clinton Drive", David W. Sullivan The University of Texas at

Austin Center for Energy & Environmental Research and Richard Tropp, University ofNevada Reno Desert

Research Institute, TEXAQS II Workshop May 29, 2007 and TCEQ Fact Sheet "Harris County/Clinton Drive

1997 Annual Fine Particulate Matter (PM2.5)" November 2009.
27

EPA concludes that New Mexico's emissions do not interfere with maintenance ofthe 1997

PM2.5 NAAQS in Houston area.

EPA also reviewed the potential for emissions from New Mexico sources to impactother

areas with identified maintenance sites. The other such areas are located in California. As

further discussed in the TSD, EPA concludes that New Mexico sources are unlikely to have such

impacts given the geographic location ofthese areas and the meteorological patterns that prevail

in the western United States. With respect to the 1997 PM2.5 24-hour standard of 65 j.1g1m3

• the

other identified maintenance sites that New Mexico sources might impact are located in

California. EPA has evaluated conceptual model documents and field study reports that indicate

that transport patterns when elevated PM2.5 occurs in areas ofCalifornia, the meteorological

patterns are not such that transport of emissions from New Mexico to California is occurring to a

degree to raise a concern." EPA believes that it is rare for meteorological patterns to occur that

would transport emissions from New Mexico sources in such a way that they would impact

California's pollution levels, and that the relatively long distance and the intervening

mountainous topography further support that transport of emissions from New Mexico is

unlikely. Therefore, available information indicates that emissions from sources in New Mexico

do not impact areas of concern in California to the degree that would interfere with maintenance

of the 1997 NAAQS in those areas.

b. Interference with PSD Measures in Other States

The third element ofsection 1IO(a)(2)(D)(i) requires a SIP to contain adequate provisions

prohibiting emissions that interfere with any other state's required measures to prevent

27 "Historical Meteorological Analysis in Support ofthe 2003 San Joaquin Valley PMl 0 State Implementation

Plan". Shawn R. Ferreria Air Quality Meteorologist JAtmospheric Scientist And Evan M. Shipp Supervising Air

Quality Meteorologist San Joaquin Valley Air Pollution Control District January 24. 2005.
28

significant deterioration of its air quality. EPA's 2006 Guidance made recommendations for SIP

submissions to meet this requirement with respect to both the 1997 8-hourozone NAAQS and

the 1997 PM,s NAAQS.

EPAbelievesthat New Mexico'5 submission is consistent withthe 2006 Guidance, when

considered in conjunction withother PSD program revisions that EPA is proposing to approve in

this action. The State's submittal indicates in Section C, "Impact on Preventionof Significant

Deterioration (PSD)," that the State's SIPprovisions include anEPA-approved PSD program

applicable to all regulated pollutants. New Mexico's regulations for its PSD program were

approved by EPA and made part ofthe SIP on February 27,1987 (52 FR 5694) at

52.1620/52.1640(c)(37), effective March 30,1987. On September 5, 2007, EPA approved the

New Mexico's PSD revisions incorporating EPA's December 31, 2002, NSR Reforms into the

State's regulations (72 FR 50879), which also recognized volatile organic compounds as a

precursor for ozone.

Consistent with EPA's November 29, 2005, Phase 2 rule for the 1997 8-hour ozone

NAAQS (70 FR 7\612), the State submitted a SIP revision to modify its PSD provisions to

address NOx as an ozone precursor (20.2.74 NMAC). These revisions are further discussed

below. EPA believes that the PSD revision for the 1997 8-hour ozone NAAQS that make NOx a

precursor forozone for PSD purposes, taken together withthe PSD SIP andthe interstate

transport SIP, satisfies the requirements ofthe third element ofsection 110(a)(2)(D)(i) for the

1997 8-hour ozoneNAAQS, i.e., there will be no interference withanyother state'srequired

PSD measures.

For the PM,., NAAQS, New Mexico stated in its section 110(a)(2)(D)(i) submission that

the State would follow EPA's interim guidance on use ofPMIO as a surrogate forPM2.S as
29

recommended in the 2006 Guidance. The New Mexico Environment Department (NMED)

clarified itsinterpretation of theNew Mexico Interstate Transport SIP for Implementation of the

PM,s NAAQS in a July 23, 2010 letter to EPA. In the letter NMED stated that: (1) it does not

use PMIO as a surrogate for PM2.

S in its permitting programs, (2) it requires that applicants

include PM2_5 modeling and emissions in their PSDand minor source permit applications, and

(3) the record for the Department's permitting decisionincludes anexplanation of how PM2.5

emissions have been appropriately analyzed and estimated. The NMED letter is included in the

electronic docket forthis action. Becauseof clarifications to EPA guidance, EPA believesthat

New Mexico's approach is appropriate.

Onthebasis ofthedata and analysis presented above, EPA is proposing to determine

that theNew Mexico SIP as revised withrespect to PSD program requirements, satisfactorily

addresses the requirements of elements (2) and (3) ofsection 110(a)(2)(D)(i) for the 1997 8-hour

ozone NAAQS and 1997 PM,s NAAQS.

c. New Mexico PSD SIP

The New MexicoEnvironment Department (NMED) made a SIPsubmission to meet

requirements ofthe 8-hour ozoneNAAQS by incorporating NOx as a precursor forozone. The

submitted PSD SIP revisions adding NOx as a precursor forozone include the following:

• thedefinition of "Majorstationary source" states that a major source that is major for

NOx is considered major for ozone (20.2.74.7.AF.(4) NMAC);

• thedefinition of "Regulated newsource reviewpollutant" specifically identifies NOx

as an ozone precursor (20.2.74.7.AR.(1) NMAC);
30

• when referring to a net emissions increase or potential to emit, a rate of emissions that

equals or exceeds 40 tons per year ofNOx is significant (20.2.74.502 NMAC, Table 2,

Significant Emission Rates); and

• any net emissions increase of 100 tons per year of NOx subject to PSD would require

an ambient impact analysis, including the gathering of ambient air quality data (20.2.74.503

NMAC, Table 3, Footnote b).

For the 8-hour ozone NAAQS, the revision to 20.2.74.7.AF meets the federal definition

in 40 CFR 51.166(b)(1) to identify a major source of nitrogen oxides as a major source for

ozone. The revision to 20.2.74.7.AR NMAC meets the federal definition in 40 CFR

51.l66(b)(49) for NOx as an ozone precursor. The revision to 20.2.74.502 NMAC Table 2

meets the federal requirement for significant emission rate for NOx emissions in 40 CFR

51.l66(b)(23)(i). The revision to 20.2.74.503 NMAC, Table 3 meets the federal requirement for

ambient air impact analysis for ozone precursors under the footnote for 40 CFR 166(i)(5)(i)(e).

Thus, EPA is proposing approval ofthese revisions as meeting the requirements ofCAA section

110 and 40 CFR 51.166 for establishing NOx emissions as a precursor for ozone.

The State's SIP submittal also contains revisions to Parts 20.2.2 NMAC, Definitions; and

20.2.79 NMAC, Permits - Nonattainment areas. These two submitted revisions are severable

from each other, are severable from the submitted revisions to 20.2.74 NMAC discussed above,

and are severable from the Transport SIP requirements addressed in this proposed action. The

EPA is still reviewing the approvability ofthe submitted revisions to Parts 20.2.2 NMAC and

20.2.79 NMAC; therefore, we are not proposing to take action on those revisions in this

proposed rulemaking. We intend to act on those revisions in a future rulemaking. EPA wishes

to note that it approved New Mexico's Nonattainment New Source Review SIP on February 8,
31

2002 (67 FR 6147). In that same action, EPA approved the NOx waiver for the Sunland Park 1-

hourozone nonattainment area.

V. Statutory and Executive Order Reviews

Under the CleanAir Act, the Administrator is required to approve a SIPsubmissionthat

complies with the provisionsofthe Act and applicable Federal regulations. 42 U.S.C. 7410(k);

40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices,

provided that they meet the criteria ofthe Clean Air Act. Accordingly, this actionmerely

proposes to approve state law as meeting Federal requirements and does not impose additional

requirements beyond those imposed by state law. For that reason, this action:

• is nota "significant regulatory action" subject to reviewbytheOffice ofManagement

and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• does notimpose aninformation collection burden under theprovisions ofthe Paperwork

Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as nothaving a significant economic impact on a substantial number ofsmall

entities under the Regulatory Flexibility Act (5 U.S.C. 601 el seq.);

• does notcontain any unfunded mandate orsignificantly oruniquely affect small

governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law

104-4);

• does nothaveFederalism implications asspecified inExecutive Order 13132(64 FR

43255, August 10, 1999);

• is not aneconomically significant regulatory action based on health or safety risks

subject to Executive Order 13045 (62 FR 19885, Apri123, 1997);
32

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355,

May 22, 200 I);

• is not subject to requirements ofSection 12(d) ofthe National Technology Transfer and

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

requirements would be inconsistentwith the Clean Air Act; and

• does not provide EPAwith the discretionary authority to address, as appropriate,

disproportionate human health orenvironmental effects, using practicable and legally

permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed ruledoes not have tribal implicationsas specified by Executive

Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in

Indian country located in the state, and EPA notesthat it will not impose substantial direct costs

on tribal governments or preempt tribal law.
33

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by reference,

Intergovernmental relations, Ozone, Particulate matter, Reporting and recordkeeping

requirements, Volatile organic compounds.

'0/,&0/7-0/0

I

Dated:

S • M II e c.", Ie "" 0 1'\ Acting Regional Administrator, Regi~ 6