New Mexico State Implementation Plan Elements 

Required Under Section 110(a)(2) for the 

2006 Fine Particulate Matter (PM2.5) NAAQS 

Docket ID EPA-R06-OAR-2009-0710 

Technical Support Document 

September 28, 2012 

Table of Contents: 

I. Introduction 

A. Section 110(a)(1) and (2) 

B. Greenhouse Gas (GHG) Component of PSD Programs 

II. Additional Background 

A. What are the National Ambient Air Quality Standards? 

B. What is a SIP? 

C. Additional Information 

III. SIP elements required under Section 110(a)(2) for the 2006 fine particulate matter 

NAAQS, the State submittals and EPA analysis 

IV. EPA’s Recommendation 

V. References 

I. Introduction

In this technical support document (TSD), EPA is evaluating the submittal provided by 

the New Mexico Environment Department (NMED) to meet the requirements of section 

110(a)(2) of the Clean Air Act (CAA or Act) for the 2006 national ambient air quality standards 

(NAAQS or standards) for fine particulate matter. More detail on these standards, section 

110(a)(1) and (2) of the Act, and the submittal we are reviewing to determine if the New Mexico 

SIP satisfies the section 110(a)(2) requirements is provided in subsection A below. Throughout 

this document, “we,” “us,” and “our” means EPA. 

Section II of the TSD provides a description of each element required under section 

110(a)(2) of the Act, the State’s response, and our analysis of the State’s response. Copies of the 

State’s submittal are in the docket for this rulemaking. 

Section III of the TSD includes our recommendation for action on each of the elements 

reviewed herein. 

 Section IV of the TSD contains a list of the guidance documents cited herein. Copies of 

the guidance documents referenced are in the docket for this rulemaking. 

A. Section 110(a)(1) and (2) 

On July 18, 1997, the EPA promulgated a new NAAQS for ozone (published in volume 

62 of the Federal Register, beginning on p. 38856, denoted 62 FR 38856) and a new standard for 

fine particulate matter (62 FR 38652). For ozone, EPA revised the NAAQS to provide an 8-hour 

averaging period (versus the 1-hour averaging period for the 1-hour ozone standard), and set the 
Page 2 of 33

level of the standard to 0.08 parts per million (ppm). The 1-hour ozone NAAQS was 0.12 ppm. 

For particulate matter (PM), EPA promulgated a new 24-hour and new annual standard for fine 

PM, which applies to particles with an aerodynamic diameter less than or equal to 2.5 

micrometers (denoted as PM2.5). The annual PM2.5 standard was set at 15 micrograms per cubic 

meter (μg/m3

) and the 24-hour standard was set at 65 μg/m3. 

Under sections 110(a)(1) and (2) of the Act, states are required to submit SIPs that 

provide for the implementation, maintenance, and enforcement (the infrastructure) of a new or 

revised NAAQS within three years following the promulgation of the NAAQS, or within such 

shorter period as EPA may prescribe. Section 110(a)(2) lists the specific infrastructure elements 

that must be incorporated into the SIPs, including for example, requirements for air pollution 

control measures, and monitoring that are designed to assure attainment and maintenance of the 

NAAQS. A table listing all 14 infrastructure elements is included in subsection D of section I of 

this proposed rulemaking. Thus states were required to submit such SIPs for the 2006 PM2.5

NAAQS to EPA no later than September 21, 2009. 

On March 4, 2004, Earthjustice submitted a notice of intent to sue related to EPA’s 

failure to issue findings of failure to submit related to the infrastructure requirements for the 

1997 8-hour ozone and PM2.5 NAAQS. EPA entered into a consent decree with Earthjustice 

which required EPA, among other things, to complete a Federal Register notice announcing 

EPA’s determinations pursuant to section 110(k)(1)(B) of the Act as to whether each state had 

made complete submissions to meet the requirements of section 110(a)(2) for the 1997 8-hour 

ozone NAAQS by December 15, 2007. Subsequently, EPA received an extension of the date to 

complete this Federal Register notice until March 17, 2008, based upon agreement to make the 

findings with respect to submissions made by January 7, 2008. In accordance with the consent 

decree, EPA made completeness findings for each state based upon what the Agency received 

from each state as of January 7, 2008. With regard to the 1997 PM2.5 NAAQS, EPA entered into 

a consent decree with Earthjustice which required EPA, among other things, to complete a 

Federal Register notice announcing EPA’s determinations pursuant to section 110(k)(1)(B) of 

the Act as to whether each state had made complete submissions to meet the requirements of 

section 110(a)(2) for the 1997 PM2.5 NAAQS by October 5, 2008. 

On October 2, 2007, we issued “Guidance on SIP Elements Required Under Sections 

110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality 

Standards,” Memorandum from William T. Harnett, Director, Air Quality Policy Division, 

Office of Air Quality Planning and Standards (OAQPS).1

 The guidance addresses the SIP 

elements found in 110(a)(2) with the exception of 110(a)(2)(D)(i) and 110(a)(2)(I).2

 Section 

110(a)(2)(D)(i) addresses interstate transport, and is being addressed separately.3 Section 

110(a)(2)(I) pertains to the nonattainment planning requirements of part D, Title I of the Act, and 

 

1

 This and any other guidance documents referenced in this action are in the docket for this rulemaking. 

2

 The guidance addresses a total of 14 infrastructure elements because the 3 components of section 110(a)(2)(J) are 

being counted as 3 separate elements. 

3

 EPA published a finding on April 25, 2005 (70 FR 21147) that all States had failed to submit SIPs addressing 

interstate transport for the 8-hour ozone and PM2.5 NAAQS, as required by section 110(a)(2)(D)(i). Furthermore, 

there is a consent decree in place for seven states in the western United States, including New Mexico, to meet the 

requirements of section 110(a)(2)(D)(i) with regard to the 1997 8-hour ozone and PM2.5 NAAQS (74 FR 64076, 

December 7, 2009). Under the consent decree, for each of these seven states, EPA is required to fully approve SIPs 

and/or promulgate FIPs that satisfy the four “prongs” of section 110(a)(2)(D)(i) by specified dates. For the 1997 

ozone and PM2.5 NAAQS, the requirements of section 110(a)(2)(D)(i) are being addressed separately and are not 

included in the infrastructure SIPs. 
Page 3 of 33

is also being addressed separately.4

 The guidance states that to the extent that existing SIPs for 

ozone and PM already meet these requirements, States need only certify that fact to EPA. 

On September 25, 2009, we issued “Guidance on SIP Elements Required Under Sections 

110(a)(l) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality 

Standards (NAAQS),” Memorandum also from William T. Harnett, Director, AQPD, OAQPS. 

Each of these guidance memos addresses the SIP elements found in 110(a)(2). The guidance 

states that, to the extent that existing SIPs already meet the requirements, states need only certify 

that fact to us. 

On June 12, 2009, the Governor of New Mexico submitted a letter certifying that NMED 

has evaluated the New Mexico SIP and found that the SIP does satisfy all the requirements of 

section 110(a)(1) and (2) for the 2006 PM2.5 NAAQS. The June 12, 2009 submittal included a 

table with an explanation of how the current New Mexico SIP meets the requirements of section 

110(a)(2) for the 2006 PM2.5 NAAQS. On July 15, 2011, we found that New Mexico’s current 

SIP met all the requirements of section 110(a)(2) for the 1997 8-hour ozone and PM2.5 NAAQS 

(see 76 FR 41698). For detailed information concerning the background for our previous 

approval, please see Docket I.D. No. EPA-R06-OAR-2009-0647 for that rulemaking. 

 On July 6, 2011, WildEarth Guardians and Sierra Club filed an amended complaint 

related to EPA’s failure to take action on the SIP submittal related to the “infrastructure” 

requirements for the 2006 24-hour PM 2.5 NAAQS. On October 20, 2011, EPA entered into a 

consent decree with WildEarth Guardians and Sierra Club which required EPA, among other 

things, to complete a Federal Register notice of the Agency’s proposed action either approving, 

disapproving, or approving in part and disapproving in part New Mexico’s 2006 24-hour PM2.5 

NAAQS Infrastructure SIP submittal addressing the applicable requirements of sections 

110(a)(2)(A)-(H), (J)-(M), and section 110(a)(2)(D)(i) interstate transport requirements, by 

September 30, 2012. 

B. Greenhouse Gas (GHG) Component of PSD Programs 

EPA has recently undertaken a series of actions pertaining to the regulation of GHGs that, 

although for the most part distinct from one another, establish the overall framework for today’s 

proposed action on the New Mexico SIP. Four of these actions include, as they are commonly 

called, the “Endangerment Finding” and “Cause or Contribute Finding,” which EPA issued in a 

single final action,5

 the “Johnson Memo Reconsideration,”6 the “Light-Duty Vehicle Rule,”7 and 

 

4

 Two elements identified in section 110(a)(2) are not governed by the 3-year submission deadline of section 

110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within 3 years after 

promulgation of a new or revised NAAQS, but rather are due at the time the nonattainment area plan requirements 

are due pursuant to section 172. These requirements are: (i) Submissions required by section 110(a)(2)(C) to the 

extent that subsection refers to a permit program as required in part D Title I of the CAA and (ii) submissions 

required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D Title I of the 

CAA. Therefore, this action does not cover these specific SIP elements. 5

 “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air 

Act.” 74 FR 66496 (December 15, 2009). 

6

 “Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs.” 75 FR 

17004 (April 2, 2010). 

7

 “Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final 

Rule.” 75 FR 25324 (May 7, 2010). 
Page 4 of 33

the “Tailoring Rule.”8

 Taken together and in conjunction with the CAA, these actions 

established regulatory requirements for GHGs emitted from new motor vehicles and new motor 

vehicle engines; determined that such regulations, when they took effect on January 2, 2011, 

subjected GHGs emitted from stationary sources to PSD requirements; and limited the 

applicability of PSD requirements to GHG sources on a phased-in basis. EPA took this last 

action in the Tailoring Rule, which, more specifically, established appropriate GHG emission 

thresholds for determining the applicability of PSD requirements to GHG-emitting sources. 

In December 2010, EPA followed up on these actions by issuing the “PSD SIP Narrowing 

Rule,”9

 in which EPA withdrew its previous approval of SIP PSD programs in 24 states, 

including New Mexico, that apply to GHG-emitting sources below the thresholds in the final 

Tailoring Rule. The Tailoring Rule and PSD SIP Narrowing Rule both discuss the states’ ability 

to provide assurances that they will have adequate resources to meet the new GHG PSD 

permitting requirements at statutory levels of emissions, and the PSD SIP Narrowing Rule 

affected EPA’s prior approval of portions of a state’s SIP that do not incorporate thresholds 

established under the Tailoring Rule. On November 10, 2010, New Mexico adopted revisions to 

the State’s PSD rules to implement the GHG thresholds established in EPA’s GHG Tailoring 

Rule and submitted the corresponding SIP revision to EPA on December 1, 2010. On April 14, 

2011, EPA proposed approval of New Mexico’s GHG rules submitted on December 1, 2010 (76 

FR 20907). Additionally, the NMED submitted a clarification letter to EPA on April 19, 2011, 

clarifying that the portions of the PSD program related to greenhouse gas permitting that 

remained approved after the promulgation of EPA’s PSD SIP Narrowing Rule satisfy sections 

110(a)(2)(C) and (J) of the Act. As we discuss further in this TSD, New Mexico currently has 

adequate resources to carry out the GHG component of the currently approved PSD SIP 

program, which requires PSD permitting for sources emitting GHGs at or above the 

75,000/100,000 tons per year (tpy) threshold specified by the Tailoring Rule. 

II. Additional Background

 A. What are the National Ambient Air Quality Standards? 

 Section 109 of the Act requires EPA to establish NAAQS for pollutants that “may 

reasonably be anticipated to endanger public health and welfare,” and to develop a primary and 

secondary standard for each NAAQS. The primary standard is designed to protect human health 

with an adequate margin of safety, and the secondary standard is designed to protect public 

welfare and the environment. EPA has set NAAQS for six common air pollutants, referred to as 

criteria pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur 

dioxide. These standards present state and local governments with the minimum air quality 

levels they must meet to comply with the Act. Also, these standards provide information to 

residents of the United States about the air quality in their communities. 

 

 

8

 “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule.” 75 FR 31514 

(June 3, 2010). 

9 “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas 

Emitting-Sources in State Implementation Plans.” 75 FR 82536 (December 30, 2010). 
Page 5 of 33

 B. What is a SIP? 

 The SIP is a set of air pollution regulations, control strategies, other means or techniques, 

and technical analyses developed by the state, to ensure that the state meets the NAAQS. The 

SIP is required by section 110 and other provisions of the Act. These SIPs can be extensive, 

containing state regulations or other enforceable documents and supporting information such as 

emissions inventories, monitoring networks, and modeling demonstrations. Each state must 

submit these regulations and control strategies to EPA for approval and incorporation into the 

federally enforceable SIP. Each federally approved SIP protects air quality primarily by 

addressing air pollution at its point of origin. 

C. Additional Information 

This rulemaking will not cover four substantive issues that are not integral to acting on a 

state’s infrastructure SIP submission: (i) existing provisions related to excess emissions during 

periods of start-up, shutdown, or malfunction at sources, that may be contrary to the CAA and 

EPA’s policies addressing such excess emissions (“SSM”); (ii) existing provisions related to 

“director's variance” or “director's discretion” that purport to permit revisions to SIP approved 

emissions limits with limited public process or without requiring further approval by EPA, that 

may be contrary to the CAA (“director's discretion”); (iii) existing provisions for minor source 

NSR programs that may be inconsistent with the requirements of the CAA and EPA’s 

regulations that pertain to such programs (“minor source NSR”); and, (iv) existing provisions for 

PSD programs that may be inconsistent with current requirements of EPA’s “Final NSR 

Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 

2007) (“NSR Reform”). Instead, EPA has indicated that it has other authority to address any 

such existing SIP defects in other rulemakings, as appropriate. A detailed rationale for why these 

four substantive issues are not part of the scope of infrastructure SIP rulemakings can be found in 

EPA’s July 13, 2011, final rule entitled, “Infrastructure SIP Requirements for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality Standards” in the section entitled, “What is the 

scope of this final rulemaking?” (see 76 FR 41075 at 41076-41079).

III. SIP elements required under Section 110(a)(2) for the 2006 fine particulate matter 

NAAQS, the State submittals and EPA analysis

 The Federally approved SIP for each state is listed in 40 CFR 52. The first section in 

this subpart for any state is the “Identification of plan.” The Identification of plan lists the EPAapproved provisions of the SIP for each state, as provided under section 110 of the Act, 42 

U.S.C. 7410, and 40 CFR 51 to meet the NAAQS. The status of the New Mexico SIP is 

provided in 40 CFR Part 52, Subpart GG, sections 1620 to 1640. The Identification of plan for 

New Mexico is in section 1620; this constitutes the applicable SIP for New Mexico, for purposes 

of the Act. 

Per the General Preamble to the 1990 Clean Air Act Amendments (April 16, 1992 at 57 

FR 13498), section 110(a)(2) sets forth elements that a SIP must contain in order to be fully 

approved.10 Below we examine the elements required in section 110(a)(2) and the 

 

10 The discussion of section 110(a)(2), subsections (A) through (M) begins on p. 13556 of the General Preamble. 
Page 6 of 33

documentation provided by the State of New Mexico. Where it is useful, we include tables 

showing the date that the applicable state rules were approved by EPA into the New Mexico SIP. 

1. Enforceable emission limits and other control measures: Section 110(a)(2)(A) requires 

SIPs to include enforceable emission limits and other control measures, means or techniques, as 

well as schedules and timetables for compliance, as necessary or appropriate to meet the 

requirements of this chapter. 

 

The State’s response: In its submittal, the State of New Mexico indicated that New Mexico’s 

enforceable emission limitations and other control measures are covered in the Air Quality 

Control Act and those provisions of the New Mexico Administrative Code (NMAC) Title 20- 

Environment Protection, Chapter 2- Air Quality, listed in 40 CFR 52.GG, and source specific 

provisions codified at 40 CFR 52.GG. The State also asserted that the regulations authorized by 

Chapter 74- Environmental Improvement of New Mexico’s state statute (1978 NMSA) are duly 

adopted by the Environmental Improvement Board, and where these provisions relate to section 

110 requirements, SIP revisions have been submitted to and approved by EPA. The State also 

indicated that New Mexico has an EPA-approved air permitting program for both major and 

minor sources, which ensures that all applicable requirements are included in the source’s 

permit. 

EPA analysis: Section 110(a)(2)(A) requires that all measures and other elements in the SIP be 

enforceable. This subsection also authorizes SIPs to contain certain nontraditional techniques for 

reducing pollution – economic incentives, marketable permits, and auctions of emissions rights. 

The EPA reads this language to require even these other means of achieving reductions to be 

enforceable.11 The Air Quality Control Act designates the NMED as the State’s air pollution 

control agency and the Environmental Improvement Act provides the NMED with enforcement 

authority. We reviewed the New Mexico SIP and found state rules to implement and enforce the 

1997 ozone and PM NAAQS, and limit or reduce emissions of these pollutants and their 

precursors.

12 These rules include emission limits, control measures, as well as permits and fees. 

We are including a list of parts from Title 20, chapter 2 of the NMAC (denoted 20.2 NMAC) as 

relevant in meeting the requirements of section 110(a)(2)(A). These sections were approved by 

EPA into the New Mexico SIP (see Table 1 below) and thus are federally enforceable. 

20.2 NMAC 

Part 3 Ambient Air Quality Standards 

Part 5 Source Surveillance 

Part 7 Excess Emissions 

Part 8 Emissions Leaving New Mexico 

Part 10 Woodwaste Burners 

Part 11 Asphalt Process Equipment 

Part 12 Cement Kilns 

Part 13 Gypsum Processing Plants 

Part 14 Particulate Emissions from Coal Burning Equipment 

 

11 See 57 FR 13498, beginning on p. 13556. 

12 NOx and VOCs are precursors to ozone. PM can be emitted directly and secondarily formed; the latter is the result 

of NOx and SO2 precursors combining with ammonia to form ammonium nitrate and ammonium sulfate. 
Page 7 of 33

Part 15 Pumice, Mica and Perlite Process Equipment 

Part 16 Nonferrous Smelters (New and Existing)- Particulate Matter 

Part 17 Nonferrous Smelters (Existing)- Particulate Matter 

Part 18 Oil Burning Equipment- Particulate Matter 

Part 19 Potash, Salt or Sodium Sulfate Processing Equipment- Particulate Matter 

Part 20 Lime Manufacturing Plants- Particulate Matter 

Part 21 Fugitive Particulate Matter Emissions from Nonferrous Smelters 

Part 22 Fugitive Particulate Matter Emissions from Roads within the Town of Hurley 

Part 30 Kraft Mills 

Part 31 Coal Burning Equipment- Sulfur Dioxide 

Part 32 Coal Burning Equipment- Nitrogen Dioxide 

Part 33 Gas Burning Equipment- Nitrogen Dioxide 

Part 34 Oil Burning Equipment- Nitrogen Dioxide 

Part 40 Sulfuric Acid Production Units- Sulfur Dioxide, Acid Mist and Visible Emissions 

Part 41 Nonferrous Smelters- Sulfur 

Part 72 Construction Permits 

Part 73 Notice of Intent and Emissions Inventory Requirements 

Part 74 Permits- Prevention of Significant Deterioration 

Part 75 Construction Permit Fees 

Part 98 General Conformity 

Part 99 Transportation Conformity 

 The Environmental Improvement Act, found in Chapter 74, Article 1 of the New Mexico 

Statutes Annotated 1978 (denoted NMSA 1978 74-1), created the NMED and the New Mexico 

Environmental Improvement Board (EIB). The New Mexico Air Quality Control Act codified at 

NMSA 1978 74-2, delegates authority to the EIB to adopt, promulgate, publish, amend and 

repeal regulations consistent with the Air Quality Control Act to attain and maintain NAAQS 

and prevent or abate air pollution (see NMSA 1978 74-2-5(B)(1)). The Air Quality Control Act 

also designates the NMED as the State’s air pollution control agency and the Environmental 

Improvement Act provides the NMED with enforcement authority. The SIP rule at Title 20 of 

the New Mexico Administrative Code (denoted as 20 NMAC) describes NMED as the State’s air 

pollution control agency and its enforcement authority, referencing the 1978 NMSA (44 FR 

21019, April 9, 1979; revised 49 FR 44101, November 2, 1984; recodified approved in 62 FR 

50518, September 26, 1997). 

 Part 3 of 20.2 NMAC establishes the statewide ambient air quality standards, including 

those for total suspended particulates, nitrogen dioxide, and sulfur dioxide. The general 

requirements for maintaining and reporting records on emissions are provided in part 5. Part 7 

establishes the requirements for a source whose operation results in excess emissions and 

provides for other enforcement provisions. Part 8 establishes requirements for emissions leaving 

New Mexico. Part 10 establishes controls on the use of woodwaste burners. 

 Parts 11-20 establish particulate matter emission standards for asphalt process equipment; 

cement kilns; gypsum processing plants; coal burning equipment; pumice, mica, and perlite 

process equipment; nonferrous smelters; existing nonferrous smelters; oil burning equipment; 

potash, salt or sodium sulfate processing equipment; and lime manufacturing plants. Parts 21 

and 22 establish fugitive particulate matter emission standards for nonferrous smelters and for 

roads within the town of Hurley, New Mexico. Part 30 regulates emissions from kraft mills, 
Page 8 of 33

including particulate matter and total reduced sulfur. Part 31 establishes sulfur dioxide emission 

standards for coal burning equipment, while Parts 32-34 establish nitrogen dioxide emission 

standards for coal burning equipment, gas burning equipment, and oil burning equipment. Part 

40 establishes requirements and standards for sulfuric acid production units to minimize 

emissions of sulfur dioxide and acid mist. Part 41 establishes requirements and standards for 

nonferrous smelters to minimize sulfur emissions. 

 Part 72 addresses construction permits required for new and modified stationary sources 

with a potential emission rate greater than 25 tons per year of any regulated air contaminant for 

which there is a federal or state ambient air quality standard. Part 73 establishes emission 

inventory requirements and provides for notice of intent requirements that apply to any owner or 

operator intending to construct a new stationary source or modify an existing stationary source 

with a potential emission rate greater than 10 tons per year of any regulated air contaminant. 

Part 75 establishes construction permit fees. Part 74 addresses PSD permit procedures. Parts 98 

and 99 establish the policy, criteria, and procedures for demonstrating and assuring general 

conformity and transportation conformity to the New Mexico SIP. 

 EPA approved New Mexico’s current provisions regarding excess emissions occurring 

during startup, shutdown, and malfunction (SSM) of operations at a facility on September 14, 

2009 (74 FR 46910). EPA believes that a number of states have SSM SIP provisions which are 

contrary to the Act and inconsistent with existing EPA guidance,13 and the Agency plans to 

conduct a SIP call in the future to address such SIP regulations. In the meantime, EPA 

encourages any State having an SSM SIP provision which is contrary to the Act and inconsistent 

with EPA guidance to take steps to correct the deficiency as soon as possible before a SIP call is 

implemented. We are also not evaluating existing state rules with regard to director’s discretion 

or variance provisions in this action, as we plan to take action in the future to address such state 

regulations. 

 The rules listed above at 20.2 NMAC parts 3, 5, 7-8, 10-22, 30-34, 40-41, 72-75, and 98-

99 were approved by EPA for adoption into the New Mexico SIP (see Table 1 below) and thus 

are enforceable by the State and EPA. We are proposing that the New Mexico SIP meets the 

requirements of section 110(a)(2)(A) with respect to the 2006 PM2.5 NAAQS. 

Table 1: New Mexico rules relevant to meeting section 110(a)(2)(A): 

Relevant Section of New Mexico’s SIP EPA Approval/Federal Register14

20.2.3 NMAC - Ambient Air Quality 

Standards 

September 26, 1997 at 62 FR 50514 

20.2.5 NMAC - Source Surveillance September 26, 1997 at 62 FR 50514 

20.2.7 NMAC - Excess Emissions September 14, 2009 at 74 FR 46910 

20.2.8 NMAC - Emissions Leaving New 

Mexico 

September 26, 1997 at 62 FR 50514 

20.2.10 NMAC - Woodwaste Burners September 26, 1997 at 62 FR 50514 

 

13 “State Implementation Plans (SIPs): Policy Regarding Excess Emissions During Malfunctions, Startup, and 

Shutdown,” Memorandum from Steven A. Herman, Assistant Administrator for Enforcement and Compliance 

Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation, dated August 11, 1999. 

14 This is the EPA approval date currently found in New Mexico’s Identification of Plan at 40 CFR 52.1620(c). This 

date reflects our most recent approval of revisions to the applicable New Mexico air regulations in the New Mexico 

SIP. 
Page 9 of 33

20.2.11 NMAC - Asphalt Process Equipment September 26, 1997 at 62 FR 50514 

20.2.12 NMAC - Cement Kilns September 26, 1997 at 62 FR 50514 

20.2.13 NMAC - Gypsum Processing Plants September 26, 1997 at 62 FR 50514 

20.2.14 NMAC - Particulate Emissions from 

Coal Burning Equipment 

September 26, 1997 at 62 FR 50514 

20.2.15 NMAC - Pumice, Mica and Perlite 

Process Equipment 

September 26, 1997 at 62 FR 50514 

20.2.16 NMAC - Nonferrous Smelters (New 

and Existing)- Particulate Matter 

September 26, 1997 at 62 FR 50514 

20.2.17 NMAC - Nonferrous Smelters 

(Existing)- Particulate Matter 

September 26, 1997 at 62 FR 50514 

20.2.18 NMAC - Oil Burning EquipmentParticulate Matter September 26, 1997 at 62 FR 50514 

20.2.19 NMAC - Potash, Salt or Sodium 

Sulfate Processing Equipment- Particulate 

Matter 

September 26, 1997 at 62 FR 50514 

20.2.20 NMAC - Lime Manufacturing PlantsParticulate Matter September 26, 1997 at 62 FR 50514 

20.2.21 NMAC - Fugitive Particulate Matter 

Emissions from Nonferrous Smelters 

September 26, 1997 at 62 FR 50514 

20.2.22 NMAC - Fugitive Particulate Matter 

Emissions from Roads Within the Town of 

Hurley 

September 26, 1997 at 62 FR 50514 

20.2.30 NMAC - Kraft Mills September 26, 1997 at 62 FR 50514 

20.2.31 NMAC - Coal Burning EquipmentSulfur Dioxide September 26, 1997 at 62 FR 50514 

20.2.32 NMAC - Coal Burning EquipmentNitrogen Dioxide September 26, 1997 at 62 FR 50514 

20.2.33 NMAC - Gas Burning EquipmentNitrogen Dioxide September 26, 1997 at 62 FR 50514 

20.2.34 NMAC - Oil Burning EquipmentNitrogen Dioxide September 26, 1997 at 62 FR 50514 

20.2.40 NMAC - Sulfuric Production UnitsSulfur Dioxide, Acid Mist and Visible 

Emissions 

September 26, 1997 at 62 FR 50514 

20.2.41 NMAC - Nonferrous Smelters- Sulfur September 26, 1997 at 62 FR 50514 

20.2.72 NMAC - Construction Permits September 26, 1997 at 62 FR 50514 

20.2.73 NMAC - Notice of Intent and 

Emissions Inventory Requirements 

August 12, 2010 at 75 FR 48860 

20.2.74 NMAC - Permits- Prevention of 

Significant Deterioration 

September 26, 1997 at 75 FR 72688 

20.2.75 NMAC - Construction Permit Fees September 26, 1997 at 62 FR 50514 

20.2.98 NMAC - General Conformity September 9, 1998 at 63 FR 48109 

20.2.99 NMAC - Transportation Conformity March 20, 2000 at 65 FR 14877 
Page 10 of 33

2. Ambient air quality monitoring and data analysis system: Section 110(a)(2)(B) requires 

SIPs to include provisions for establishment and operation of ambient air quality monitors, 

collecting and analyzing ambient air quality data, and making these data available to EPA upon 

request. 

The State’s response: In its submittal, the NMED stated that New Mexico maintains and 

operates a multi-station network to measure ambient levels within the state for comparison to the 

NAAQS. All monitoring data is measured using EPA approved methods as either reference of 

Equivalent monitors. All monitors are subjected to the quality assurance requirements of 40 

CFR Part 58, Appendix A, and are located at sites that have met the minimum siting 

requirements of Part 58, Appendix E. The data is submitted to EPA’s Air Quality System (AQS) 

system in accordance with the schedule prescribed by 40 CFR Part 58. New Mexico SIP 

satisfies this particular element of section 110(a)(2)(B). 

EPA analysis: EPA historically has promulgated regulations in 40 CFR 58 (Ambient Air Quality 

Surveillance), indicating the necessary data states need to collect and submit as part of their SIP. 

The New Mexico statewide air quality surveillance network was approved by EPA on August 6, 

1981 (46 FR 40005). The air quality surveillance network undergoes annual review by EPA. On 

July 7, 2011, NMED submitted its 2011 Annual Air Monitoring Network Plan (AAMNP) that 

included the plans for the 2006 PM2.5 NAAQS. EPA approved New Mexico’s 2011 AAMNP on 

January 13, 2012.15 The NMED monitors that are not certified as meeting the federal 

requirements are identified as “non-regulatory” monitors.16 The NMED website provides the 

ozone and PM2.5 monitor locations and posts past and current concentrations of PM2.5 and ozone 

measured in the State’s network of monitors (see http://air.nmenv.state.nm.us/). The State 

submits air monitoring data to EPA quarterly and certifies the data annually. We are proposing 

that the New Mexico SIP meets the requirements of section 110(a)(2)(B) with respect to the 

2006 PM2.5 NAAQS. 

3. Program for enforcement of control measures: Section 110(a)(2)(C) requires states to 

include a program providing for enforcement of the measures described in subparagraph (A), and 

the regulation of the modification and construction of any stationary source within the areas 

covered by the SIP as necessary to assure that the NAAQS are achieved, including a permit 

program as required in parts C and D. 

The State's response: In its submittal, NMED did not specifically address how the New Mexico 

SIP satisfies this particular element of section 110(a)(2)(C), but rather stated that NMED has 

established regulations governing the enforcement of control measures, including attainment 

plans and permitting programs that regulate construction and modification of stationary sources. 

 

15 A copy of our approval letter is available in the docket for this rulemaking. 

16 These include for example, special purpose monitors (SPMs). Special purpose monitoring is conducted on a 

frequent basis for a variety of reasons: as a tool to supplement state ambient air monitoring networks to obtain 

information on where to locate permanent monitoring stations, to provide additional data in support of pollutant 

formation and transport analyses, or to assess air quality in a particular location. These studies vary in duration from 

being temporary sites needed only during a portion of the year to long-term air pollution studies over a large area. 
Page 11 of 33

EPA analysis: We note the following parts within the New Mexico SIP as relevant to meet the 

requirements of section 110(a)(2)(C): 

20.2 NMAC 

Part 3 Ambient Air Quality Standards 

Part 5 Source Surveillance 

Part 7 Excess Emissions 

Part 8 Emissions Leaving New Mexico 

Part 10 Woodwaste Burners 

Part 11 Asphalt Process Equipment 

Part 12 Cement Kilns 

Part 13 Gypsum Processing Plants 

Part 14 Particulate Emissions from Coal Burning Equipment 

Part 15 Pumice, Mica and Perlite Process Equipment 

Part 16 Nonferrous Smelters (New and Existing)- Particulate Matter 

Part 17 Nonferrous Smelters (Existing)- Particulate Matter 

Part 18 Oil Burning Equipment- Particulate Matter 

Part 19 Potash, Salt or Sodium Sulfate Processing Equipment- Particulate Matter 

Part 20 Lime Manufacturing Plants- Particulate Matter 

Part 21 Fugitive Particulate Matter Emissions from Nonferrous Smelters 

Part 22 Fugitive Particulate Matter Emissions from Roads within the Town of Hurley 

Part 30 Kraft Mills 

Part 31 Coal Burning Equipment- Sulfur Dioxide 

Part 32 Coal Burning Equipment- Nitrogen Dioxide 

Part 33 Gas Burning Equipment- Nitrogen Dioxide 

Part 34 Oil Burning Equipment- Nitrogen Dioxide 

Part 40 Sulfuric Acid Production Units- Sulfur Dioxide, Acid Mist and Visible Emissions 

Part 41 Nonferrous Smelters- Sulfur 

Part 72 Construction Permits 

Part 73 Notice of Intent and Emissions Inventory Requirements 

Part 74 Permits- Prevention of Significant Deterioration 

Part 75 Construction Permit Fees 

Part 98 General Conformity 

Part 99 Transportation Conformity 

 Enforcement authority is provided by NMSA 1978 74-1 and NMSA 1978 74-2, which 

address general enforcement power; investigation and remediation agreements; civil and criminal 

penalties; compliance orders and emergency cease and desist orders; civil actions; a field citation 

program; and etc. Part 3 of 20.2 NMAC establishes the statewide ambient air quality standards, 

including those for total suspended particulates, nitrogen dioxide, and sulfur dioxide. The 

general requirements for maintaining and reporting records on emissions are provided in part 5. 

The requirements for a source whose operation results in an excess emission and other 

enforcement provisions are provided in part 7. Part 8 establishes requirements for emissions 

leaving New Mexico. Part 10 establishes controls on the use of woodwaste burners. 

Enforcement of emissions inventory requirements are provided in part 73. Additional issues 

addressed in parts 11-22, 30-34, 40-41, 72, 74-75, and 98-99 include allowable rates, compliance 
Page 12 of 33

schedules, control plan requirements, actual and allowable emissions, monitoring and testing 

requirements, and control schedules. These chapters and their SIP approval dates are provided in 

Table 3 below. These citations clarify the boundaries beyond which regulated entities in New 

Mexico can expect enforcement action. 

 The existing federal regulations require both major and minor NSR programs to address 

any pollutant for which there is a NAAQS and precursors to the formation of such pollutant 

when identified for regulation by the Administrator. The major NSR program is composed of 

two different programs: prevention of significant deterioration (PSD) and nonattainment new 

source review (nonattainment NSR).17 The major NSR provisions of the Act are a combination 

of air quality planning and air pollution control technology program requirements for new and 

modified stationary sources of air pollution. Nonattainment NSR applies to areas not in 

attainment of a NAAQS, and is implemented under the requirements of part D of title I of the 

CAA , and 40 CFR 51.160 through 51.165. In a nonattainment area, any stationary pollutant 

source with the potential to emit 100 tons per year (tpy) or more of any regulated NSR pollutant 

is considered a major stationary source. Sources subject to nonattainment NSR are required by 

the CAA to obtain an air pollution permit before beginning construction. We are not evaluating 

nonattainment-related provisions, such as the nonattainment NSR program required by part D in 

110(a)(2)(C) and measures for attainment required by section 110(a)(2)(I), as part of the 

110(a)(2) infrastructure SIPs because these submittals are required beyond the date (3 years from 

NAAQS promulgation) that section 110(a)(2) infrastructure submittals are required. EPA will 

address the nonattainment NSR requirements of section 110(a)(2)(C) through a separate 

rulemaking. 

The other component of the major NSR program, known as the PSD program, is 

implemented under the requirements of part C of title I of the CAA , and 40 CFR 51.160-51.164 

and 51.166. The PSD program regulates the construction of any new major stationary source or 

major modification at existing stationary sources located in areas meeting the NAAQS 

(“attainment” areas) and areas for which there is insufficient information to classify an area as 

either attainment or nonattainment (“unclassifiable” areas). In areas subject to the PSD 

requirements, the cutoff pollutant level may be either 100 tpy or 250 tpy of any regulated NSR 

pollutant, depending upon the source.18 These sources are required by the Act to obtain an air 

pollution permit before beginning construction. In addition, revisions to New Mexico’s PSD 

program were approved into the SIP on August 21, 1990 (55 FR 34013), May 2, 1991 (56 FR 

20137), October 15, 1996 (61 FR 53639), March 10, 2003 (68 FR 11316), December 24, 2003 

(68 FR 74483), September 5, 2007 (72 FR 50879), and November 26, 2010 (75 FR 72688). On 

September 28, 2012, EPA signed a proposed approval of revisions to the New Mexico PSD 

program as revisions to the New Mexico SIP. See docket EPA-R06-OAR-2011-0033. 

 To meet the requirements of 110(a)(2)(C) for the 1997 8-hour ozone standard, EPA 

believes the State must have updated its PSD rules to treat NOx as a precursor for ozone (70 FR 

71612). Pursuant to 40 CFR 51.166, the state’s rules to implement the ozone standard must 

include: (1) the identification of NOx as a precursor for ozone; (2) definition of the significance 

level for NOx as 40 tpy for PSD, with this significance level linked to ozone as the pollutant; and 

 

17 We often refer to the PSD and nonattainment NSR programs together as the major NSR program because these 

programs regulate only major sources. The Act uses the terms “major emitting facility” to refer to sources subject to 

the PSD program, and “major stationary source” to refer to sources subject to nonattainment NSR. See CAA 

sections 165, 169, 172(c)(5), and 302(j). 

18 See section 169(1) of the Act for the types of sources in each of the 100 tpy and 250 tpy categories. 
Page 13 of 33

(3) a note or statement that “no de minimis air quality level may be provided for ozone. 

However, any net emissions increase of 100 tpy or more of VOC or NOx subject to PSD would 

be required to perform an ambient impact analysis, including the gathering of ambient air quality 

data.” On November 26, 2010, EPA approved revisions to New Mexico’s PSD SIP for the 1997 

8-hour ozone NAAQS to include NOx as an ozone precursor (75 FR 72688). 

To meet the requirements of 110(a)(2)(C) for the 2006 PM2.5 NAAQS, states were 

required to update their PSD programs and submit the necessary SIP revisions to EPA by May 

16, 2011 and July 20, 2012 pursuant to EPA’s NSR PM2.5 Rule finalized May 16, 2008 (73 FR 

28321) and EPA’s PM2.5 Increment – Significant Impact Levels (SILs) – Significant Monitoring 

Concentrations (SMC) Rule (75 FR 64864) finalized October 20, 2010, respectively. On May 

23, 2011, the Governor submitted necessary revisions to the New Mexico SIP to amend the PSD 

program to meet the 2006 PM2.5 NAAQS implementation requirements. To address the 

requirements of EPA’s May 16, 2008 NSR PM2.5 Rule, New Mexico adopted rule revisions to 

establish (1) the requirement for NSR permits to address directly emitted PM2.5 and precursor 

pollutants; (2) significant emission rates for direct PM2.5 and precursor pollutants (SO2 and NOX) 

and (3) the requirement that condensable PM be addressed in enforceable PM, PM10 and PM2.5 

emission limits included in PSD permits. To address the requirements of EPA’s October 20, 

2010 PM2.5 PSD Increment – SILs – SMC Rule, New Mexico updated its PSD rules to establish 

the allowable PM2.5 increments19, and the optional screening tools called significant impact levels 

(SILs), and significant monitoring concentrations (SMCs). 

In a separate rulemaking, EPA proposes to approve the May 23, 2011 SIP revisions to 

New Mexico’s PSD permitting regulations that implement the provisions for PM2.5 permitting 

because EPA found those rule revisions adequate and necessary to implement the 2006 PM2.5

NAAQS. We have proposed the New Mexico PSD program satisfies both the May 16, 2008 (73 

FR 28321) and October 20, 2010 PM2.5 PSD rulemakings (75 FR 64864, effective December 20, 

2010) and a complete analysis is provided in the TSD for the proposed action signed on 

September 28, 2102. See EPA Docket EPA-R06-OAR-2011-0033. Table 2 below summarizes 

EPA’s proposed findings as to how the New Mexico PSD program satisfies 110(a)(2)(C) for the 

2006 PM2.5 NAAQS. 

 

Table 2: New Mexico PSD rules necessary to implement the PM2.5 standard, 

pursuant to 40 CFR CFR 51.166 

Requirement State Citation 

Revise the PSD Permitting program to apply to 

emissions of direct PM2.5 and its precursors consistent 

with 40 CFR 51.166 (b)(49)(i); 

(49) * * * 

(i) Any pollutant for which a national ambient air quality 

standard has been promulgated and any pollutant 

identified under this paragraph (b)(49)(i) as a constituent 

In a separate rulemaking, EPA is proposing approval of 

the revision to 20.2.74.7 NMAC, definition of 

“Regulated NSR pollutant”, to apply the PSD permitting 

program to direct emissions of PM2.5 and its precursors, 

consistent with 40 CFR 51.166(b)(49)(i). See EPA-R06-

OAR-2011-0033. 

 

19 Under section 165 (a)(3) of the Act, a PSD permit applicant must demonstrate that emissions from the proposed 

construction and operation of a facility “will not cause, or contribute to, air pollution in excess of any (A) maximum 

allowable increase or maximum allowable concentration for any pollutant.....” The “maximum allowable increase” 

of an air pollutant that is allowed to occur above the applicable baseline concentration for that pollutant is known as 

the PSD increment. New Mexico revised their PSD program (20.2.74 NMAC) to include the allowable PSD 

increments. For example, for Class II areas, the allowable PM2.5 PSD increment is 4 ug/m3 annual arithmetic mean, 

and 9 ug/m3 24-hour maximum, as outlined in Table 4 of 20.2.74.504 NMAC. 
Page 14 of 33

or precursor to such pollutant. Precursors identified by 

the Administrator for purposes of NSR are the 

following: 

(a) Volatile organic compounds and nitrogen oxides are 

precursors to ozone in all attainment and unclassifiable 

areas. 

(b) Sulfur dioxide is a precursor to PM2.5 in all 

attainment and unclassifiable areas. 

(c) Nitrogen oxides are presumed to be precursors to 

PM2.5 in all attainment and unclassifiable areas, unless 

the State demonstrates to the Administrator’s 

satisfaction or EPA demonstrates that emissions of 

nitrogen oxides from sources in a specific area are not a 

significant contributor to that area’s ambient PM2.5

concentrations. 

(d) Volatile organic compounds are presumed not to be 

precursors to PM2.5 in any attainment or unclassifiable 

area, unless the State demonstrates to the 

Administrator’s satisfaction or EPA demonstrates that 

emissions of volatile organic compounds from sources in 

a specific area are a significant contributor to that area’s 

ambient PM2.5 concentrations. 

Revise the PSD Permitting program to identify 

significant emission rates for PM2.5 and its precursors 

consistent with 40 CFR 51.166(b)(23)(i): 

 (b) * * * 

(23)(i) Significant means, in reference to a net emissions 

increase or the potential of a source to emit any of the 

following pollutants, a rate of emissions that would 

equal or exceed any of the following rates: 

Pollutant and Emissions Rate 

Carbon monoxide: 100 tons per year (tpy) 

Nitrogen oxides: 40 tpy 

Sulfur dioxide: 40 tpy 

Particulate matter: 25 tpy of particulate matter 

emissions. 15 tpy of PM10 emissions 

PM2.5: 10 tpy of direct PM2.5 emissions; 40 tpy of sulfur 

dioxide emissions; 40 tpy of nitrogen oxide emissions 

unless demonstrated not to be a PM2.5 precursor under 

paragraph (b)(49) of this section 

Ozone: 40 tpy of volatile organic compounds or nitrogen 

oxides 

Lead: 0.6 tpy 

Fluorides: 3 tpy 

Sulfuric acid mist: 7 tpy 

Hydrogen sulfide (H2S): 10 tpy 

Total reduced sulfur (including H2S): 10 tpy 

Reduced sulfur compounds (including H2S): 10 tpy 

Municipal waste combustor organics (measured as total 

tetra-through octachlorinated dibenzo-p-dioxins and 

dibenzofurans): 3.2 × 10-6 megagrams per year (3.5 × 10-

6

 tons per year) 

Municipal waste combustor metals (measured as 

particulate matter): 14 megagrams per year (15 tons per 

year) 

Municipal waste combustor acid gases (measured as 

In a separate rulemaking, EPA is proposing approval of 

the revisions to 20.2.74.502 NMAC, Table 2 – 

Significant Emission Rates, as consistent with the 

requirements of 40 CFR 51.166(b)(23)(i). See EPAR06-OAR-2011-0033. 
Page 15 of 33

sulfur dioxide and hydrogen chloride): 36 megagrams 

per year (40 tons per year) 

Municipal solid waste landfill emissions (measured as 

nonmethane organic compounds): 45 megagrams 

per year (50 tons per year) 

Revise the PSD Permitting Program to address 

condensable emissions consistent with 40 CFR 

51.166(b)(49)(vi). 

(b)(49)(vi); 

(vi) Particulate matter (PM) emissions, PM2.5 emissions, 

and PM10 emissions shall include gaseous emissions 

from a source or activity which condense to form 

particulate matter at ambient temperatures. On or after 

January 1, 2011 (or any earlier date established in the 

upcoming rulemaking codifying test methods), such 

condensable particulate matter shall be accounted for in 

applicability determinations and in establishing 

emissions limitations for PM, PM2.5 and PM10 in PSD 

permits. Compliance with emissions limitations for PM, 

PM2.5 and PM10 issued prior to this date shall not be 

based on condensable particular matter unless required 

by the terms and conditions of the permit or the 

applicable implementation plan. Applicability 

determinations made prior to this date without 

accounting for condensable particular matter shall not be 

considered in violation of this section unless the 

applicable implementation plan required condensable 

particular matter to be included. 

And 

In a separate rulemaking, EPA is proposing approval of 

the revisions to 20.2.74.7 NMAC, definition of 

“Regulated NSR pollutant”, to adopt and implement the 

“condensables” provision consistent with 40 CFR 

51.166(b)(49)(vi). See EPA-R06-OAR-2011-0033. 

Adopting provisions to implement the PM2.5 increment, 

including revisions to the definitions of “baseline area”, 

“major source baseline date”, “minor source baseline 

date” 

In a separate rulemaking, EPA is proposing approval of 

the revisions to definitions in 20.2.74.7 NMAC that were 

submitted to adopt and implement the PM2.5 increment. 

See EPA-R06-OAR-2011-0033. 

 

Program for enforcement of control measures and regulation of the modification and 

construction of any stationary source within the areas covered by the plan as necessary to assure 

that NAAQS are achieved, including a permit program, as required by Parts C and D, pursuant 

to section 110(a)(2)(C): 

Regarding a program for enforcement of control measures, the Air Quality Control Act 

designates the NMED as the State’s air pollution control agency and the Environmental 

Improvement Act provides the NMED with authority to enforce the state’s environmental quality 

rules. The NMED established rules governing emissions of the criteria pollutants and their 

precursors throughout the State and these rules are in the federally enforceable SIP. The rules in 

20.2 NMAC parts 3, 5, 7-8, 10-22, 30-34, 40-41, 72-75, and 98-99 include allowable emission 

rates, compliance, control plan requirements, actual and allowable emissions, monitoring and 

testing requirements, recordkeeping and reporting requirements, and control schedules. These 
Page 16 of 33

rules clarify the boundaries beyond which regulated entities in New Mexico can expect 

enforcement action. 

To meet the requirement for having a program for the 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 

by Parts C and D of the CAA, generally, the State is required to have SIP-approved PSD, 

Nonattainment, and Minor NSR permitting programs adequate to implement the 2006 PM2.5 

NAAQS. We are not evaluating nonattainment-related provisions, such as the Nonattainment 

NSR (NNSR) program required by part D in 110(a)(2)(C) and measures for attainment required 

by section 110(a)(2)(I), as part of the infrastructure SIPs for this NAAQS because these 

submittals are required beyond the date (3 years from NAAQS promulgation) that section 110 

infrastructure SIP submittals are required. 

PSD programs apply in areas that are meeting the NAAQS, referred to as areas in 

attainment, and in areas for which there is insufficient information to designate as either 

attainment or nonattainment, referred to as unclassifiable areas. New Mexico’s PSD program 

was conditionally approved into the SIP on February 27, 1987 (52 FR 5964) and fully approved 

on August 15, 2011 (76 FR 41698). In addition, revisions to New Mexico’s PSD program were 

approved into the SIP on August 21, 1990 (55 FR 34013), May 2, 1991 (56 FR 20137), October 

15, 1996 (61 FR 53639), March 10, 2003 (68 FR 11316), December 24, 2003 (68 FR 74483), 

September 5, 2007 (72 FR 50879), November 26, 2010 (75 FR 72688) and July 20, 2011 (76 FR 

43149). Additionally, on June 11, 2009 and May 23, 2011, New Mexico submitted to EPA SIP 

revisions that revise the state’s PSD and NNSR permitting regulations to address the permitting 

requirements associated with the NAAQS for 8-hour ozone and PM 2.5, respectively. EPA 

approved the portions of the June 11, 2009 submittal associated with implementing NOx as a 

precursor (75 FR 72688) as necessary to implement the 1997 ozone standard. EPA has proposed 

approval of the May 23, 2011 revision in a Federal Register notice signed September 28, 2012, 

as these elements are necessary for implementation of the PM2.5 standard. Specific details 

regarding our proposed approval of these submittals is available in a separate rulemaking and can 

be found in the Docket ID EPA-R06-OAR-2011-0033. 

PM2.5 PSD Permitting: 

To implement the PSD permitting component of section 110(a)(2)(C) for the 2006 PM2.5

NAAQS, states were required to submit the necessary SIP revisions to EPA by May 16, 2011 

and July 20, 2012 pursuant to EPA’s NSR PM2.5 Rule finalized May 16, 2008 (73 FR 28321) and 

EPA’s PM2.5 Increment – Significant Impact Levels (SILs) – Significant Monitoring 

Concentrations (SMC) Rule (75 FR 64864) finalized October 20, 2010, respectively. On May 23, 

2011, the Governor submitted necessary revisions to the New Mexico SIP to amend the PSD 

program to meet the 2006 PM2.5 NAAQS implementation requirements. To address the 

requirements of EPA’s May 16, 2008 NSR PM2.5 Rule, New Mexico adopted rule revisions to 

establish (1) the requirement for NSR permits to address directly emitted PM2.5 and precursor 

pollutants; (2) significant emission rates for direct PM2.5 and precursor pollutants (SO2 and NOX) 

and (3) the requirement that condensable PM be addressed in enforceable PM, PM10 and PM2.5 

emission limits included in PSD permits. To address the requirements of EPA’s October 20, 

2010 PM2.5 PSD Increment – SILs – SMC Rule, New Mexico updated its PSD rules (please see 
Page 17 of 33

Table 2 in this TSD) to establish the allowable PM2.5 increments, and the optional screening tools 

called significant impact levels (SILs), and significant monitoring concentrations (SMCs). 

GHG PSDPermitting: 

 

New Mexico has the authority to issue permits under the SIP-approved PSD program to 

sources of GHG emissions (75 FR 82536, page 82536, December 30, 2010).20 The Tailoring 

Rule established thresholds that phase in the applicability of PSD requirements to GHG sources, 

starting with the largest GHG emitters, and were designed to relieve the overwhelming 

administrative burdens and costs associated with the dramatic increase in permitting burden that 

would have resulted from applying PSD requirements to GHG emission increases at or above 

only the mass-based statutory thresholds of 100/250 tpy generally applicable to all PSDregulated pollutants starting on January 2, 2011. However, EPA recognized that even after it 

finalized the Tailoring Rule, many SIPs with approved PSD programs would, until they were 

revised, continue to apply PSD at the statutory thresholds, even though the states would not have 

sufficient resources to implement the PSD program at those levels. EPA consequently 

implemented its “PSD SIP Narrowing Rule” and narrowed its approval of those provisions of 

previously approved SIPs of 24 states, including New Mexico, that apply PSD to GHG emission 

increases from sources emitting GHGs below the Tailoring Rule thresholds (75 FR 82536, 

December 30, 2010). Through the PSD SIP Narrowing Rule, EPA withdrew its previous 

approvals of those programs to the extent the SIPs apply PSD to increases in GHG emissions 

from GHG-emitting sources below the Tailoring Rule thresholds. The portions of the PSD 

programs regulating GHGs from GHG-emitting sources with emission increases at or above the 

Tailoring Rule thresholds remained approved. The effect of EPA narrowing its approval in this 

manner is that the provisions of previously approved SIPs that apply PSD to GHG emissions 

increases from sources emitting GHGs below the Tailoring Rule thresholds have the status of 

having been submitted by the state but not yet acted upon by EPA (75 FR 82536, December 30, 

2010). 

On November 10, 2010, New Mexico adopted revisions to the State’s PSD rules to 

implement the GHG thresholds established in EPA’s GHG Tailoring Rule and submitted the 

corresponding SIP revision to EPA on December 1, 2010. On April 14, 2011, EPA proposed 

approval of New Mexico’s GHG rules submitted on December 1, 2010 (76 FR 20907). On 

August 19, 2011, EPA approved New Mexico’s GHG rules submitted on December 1, 2010 (see 

76 FR 43149 dated July 20, 2011). 

 

20 On June 24, 2010, the State submitted a letter to EPA stating that current New Mexico rules require regulating 

GHGs at the existing 100/250 tpy threshold, rather than at the higher thresholds set in the Tailoring Rule because the 

State does not have the authority to apply the meaning of the term “subject to regulation” established in the 

Tailoring Rule. New Mexico also submitted a letter on September 14, 2010, in response to the proposed GHG SIP 

Call again confirming that EPA correctly classified New Mexico as a State with authority to apply PSD 

requirements to GHGs. The September 14, 2010, letter also identifies that NMED is pursuing rulemaking activity to 

define the terms “greenhouse gas” and “subject to regulation.” These two letters are in the docket for this 

rulemaking. As explained elsewhere in this rulemaking, on November 10, 2010, New Mexico adopted revisions to 

the State’s PSD rules to implement the GHG thresholds established in EPA’s GHG Tailoring Rule and submitted the 

corresponding SIP revision to EPA on December 1, 2010. On April 14, 2011, EPA proposed approval of New 

Mexico’s GHG rules submitted on December 1, 2010 (76 FR 20907). EPA approved the December 1, 2010 

submittal on August 19, 2011 (76 FR 43149). 
Page 18 of 33

Minor Source Permitting: 

Section 110(a)(2)(C) creates “a general duty on States to include a program in their SIP 

that regulates the modification and construction of any stationary source as necessary to assure 

that the NAAQS are achieved” (70 FR 71612, 71677). EPA provides states with discretion in 

implementing their Minor NSR programs (71 FR 48696, 48700). The “considerably less 

detailed” regulations for minor NSR are provided in 40 CFR 51.160 through 51.164. EPA has 

determined that New Mexico’s Minor NSR program adopted pursuant to section 110(a)(2)(C) of 

the Act regulates emissions of all regulated air contaminants for which there is a NAAQS 

(20.2.72.200 NMAC). New Mexico’s Minor NSR permitting requirements are found at 20.2.72 

NMAC and were approved into the SIP on May 14, 1973 (38 FR 12702).21 In this action, EPA is 

proposing to approve New Mexico’s infrastructure SIP for the 2006 PM2.5 NAAQS with respect 

to the general requirement of section 110(a)(2)(C) to include a program in the SIP that regulates 

the modification and construction of any stationary source as necessary to assure that the 

NAAQS are achieved. 

It is important to stress that EPA is not proposing to approve or disapprove the State’s 

existing Minor NSR program itself to the extent that it is inconsistent with EPA’s regulations 

governing this program. EPA believes that a number of states may have Minor NSR provisions 

that are contrary to the existing EPA regulations for this program. EPA intends to work with 

states to reconcile state Minor NSR programs with EPA’s regulatory provisions for the program. 

The statutory requirements of section 110(a)(2)(C) provide for considerable flexibility in 

designing Minor NSR programs, and EPA believes it may be time to revisit the regulatory

requirements for this program to give the states an appropriate level of flexibility to design a 

program that meets their particular air quality concerns, while assuring reasonable consistency 

across the country in protecting the NAAQS with respect to new and modified minor sources. 

Based on the above, we are proposing to find that the current New Mexico SIP (see Table 

3 below) meets the requirements of section 110(a)(2)(C) with respect to the 2006 PM2.5 NAAQS. 

Table 3: New Mexico rules relevant to meeting section 110(a)(2)(C): 

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

20.2.3 NMAC - Ambient Air Quality 

Standards 

September 26, 1997 at 62 FR 50514 

20.2.5 NMAC - Source Surveillance September 26, 1997 at 62 FR 50514 

20.2.7 NMAC - Excess Emissions September 14, 2009 at 74 FR 46910 

20.2.8 NMAC - Emissions Leaving New 

Mexico 

September 26, 1997 at 62 FR 50514 

20.2.10 NMAC - Woodwaste Burners September 26, 1997 at 62 FR 50514 

20.2.11 NMAC - Asphalt Process Equipment September 26, 1997 at 62 FR 50514 

20.2.12 NMAC - Cement Kilns September 26, 1997 at 62 FR 50514 

20.2.13 NMAC - Gypsum Processing Plants September 26, 1997 at 62 FR 50514 

20.2.14 NMAC - Particulate Emissions from 

Coal Burning Equipment 

September 26, 1997 at 62 FR 50514 

20.2.15 NMAC - Pumice, Mica and Perlite September 26, 1997 at 62 FR 50514 

 

21 Revisions to New Mexico’s minor source permitting program were most recently approved by EPA into the SIP 

on September 26, 1997 (62 FR 50514). 
Page 19 of 33

Process Equipment 

20.2.16 NMAC - Nonferrous Smelters (New 

and Existing)- Particulate Matter 

September 26, 1997 at 62 FR 50514 

20.2.17 NMAC - Nonferrous Smelters 

(Existing)- Particulate Matter 

September 26, 1997 at 62 FR 50514 

20.2.18 NMAC - Oil Burning EquipmentParticulate Matter September 26, 1997 at 62 FR 50514 

20.2.19 NMAC - Potash, Salt or Sodium 

Sulfate Processing Equipment- Particulate 

Matter 

September 26, 1997 at 62 FR 50514 

20.2.20 NMAC - Lime Manufacturing PlantsParticulate Matter September 26, 1997 at 62 FR 50514 

20.2.21 NMAC - Fugitive Particulate Matter 

Emissions from Nonferrous Smelters 

September 26, 1997 at 62 FR 50514 

20.2.22 NMAC - Fugitive Particulate Matter 

Emissions from Roads Within the Town of 

Hurley 

September 26, 1997 at 62 FR 50514 

20.2.30 NMAC - Kraft Mills September 26, 1997 at 62 FR 50514 

20.2.31 NMAC - Coal Burning EquipmentSulfur Dioxide September 26, 1997 at 62 FR 50514 

20.2.32 NMAC - Coal Burning EquipmentNitrogen Dioxide September 26, 1997 at 62 FR 50514 

20.2.33 NMAC - Gas Burning EquipmentNitrogen Dioxide September 26, 1997 at 62 FR 50514 

20.3.34 NMAC - Oil Burning EquipmentNitrogen Dioxide September 26, 1997 at 62 FR 50514 

20.2.40 NMAC - Sulfuric Production UnitsSulfur Dioxide, Acid Mist and Visible 

Emissions 

September 26, 1997 at 62 FR 50514 

20.2.41 NMAC - Nonferrous Smelters- Sulfur September 26, 1997 at 62 FR 50514 

20.2.72 NMAC - Construction Permits September 26, 1997 at 62 FR 50514 

20.2.73 NMAC - Notice of Intent and 

Emissions Inventory Requirements 

August 12, 2010 at 75 FR 48860 

20.2.74 NMAC - Permits- Prevention of 

Significant Deterioration 

July 20, 2011 at 76 FR 43149 

EPA signed a proposed approval of revisions 

to the New Mexico SIP for PSD Permitting of 

PM2.5 on September 28, 2012 

20.2.75 NMAC - Construction Permit Fees September 26, 1997 at 62 FR 50514 

20.2.98 NMAC - General Conformity September 9, 1998 at 63 FR 48109 

20.2.99 NMAC - Transportation Conformity March 20, 2000 at 65 FR 14877 

4. Interstate transport, and interstate and international pollution abatement: Section 

110(a)(2)(D) is divided into two components, 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 

110(a)(2)(D)(i) requires SIPs to include provisions prohibiting any source or other type of 

emissions activity in one state from contributing significantly to nonattainment, interfering with 

maintenance of the NAAQS in another state, or from interfering with measures required to 
Page 20 of 33

prevent significant deterioration of air quality or to protect visibility in another state. For the 

2006 PM2.5 NAAQS, the contribute to nonattainment/interfere with maintenance and visibility 

requirements of section 110(a)(2)(D)(i) will be addressed separately and are not included in the 

infrastructure SIPs. Section 110(a)(2)(D)(ii) requires SIPs to include provisions insuring 

compliance with sections 115 and 126 of the Act, relating to interstate and international pollution 

abatement. 

The State's response: In its submittal, the State of New Mexico indicated that in September 

2007, New Mexico adopted and submitted to EPA a SIP revision pertaining only to section 

110(a)(2)(D)(i). The state also indicated that New Mexico does not have any PM nonattainment 

areas nor is the state within close proximity to any PM nonattainment areas. The closest PM 

nonattainment area to New Mexico is approximately 600 miles away in northwestern Utah. The 

state concluded that no revisions to the state’s 2007 SIP revision for 110(a)(2)(D)(ii) are 

necessary at this time. Additionally, the state indicates that it is not currently subject to 

requirements under sections 115 and 126. 

EPA analysis:

PSD and interstate transport, pursuant to section 110(a)(2)(D)(i): 

Section 110(a)(2)(D) has two components, 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 

110(a)(2)(D)(i) requires SIPs to include provisions prohibiting any source or other type of 

emissions activity in one state from contributing significantly to nonattainment, interfering with 

maintenance of the NAAQS in another state, or from interfering with measures required to 

prevent significant deterioration of air quality or to protect visibility in another state. Section 

110(a)(2)(D)(ii) requires SIPs to include provisions insuring compliance with sections 115 and 

126 of the Act, relating to interstate and international pollution abatement. 

PSD and interstate transport, pursuant to section 110(a)(2)(D)(i): One of the four 

elements (or prongs) in section 110(a)(2)(D)(i) requires a SIP to contain adequate provisions 

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

significant deterioration of its air quality. This is the only element of 110(a)(2)(D)(i) on which 

EPA is proposing action in this rulemaking. EPA’s 2009 Guidance made recommendations for 

SIP submissions to meet this requirement with respect to the 2006 PM2.5 NAAQS. 

The 2009 Guidance states that the PSD permitting program is the primary measure that 

each state must include to prevent interference with any other state’s required measures to 

prevent significant deterioration of its air quality in accordance with section 110(a)(2)(D)(i)(II). 

 As discussed in this TSD, the New Mexico PSD program has been approved into the 

SIP. New Mexico has provided necessary revisions to its PSD program to implement the PM2.5

standards and EPA has proposed approval of these revisions. Therefore, EPA is proposing that 

the New Mexico SIP meets the basic requirements for implementing the 2006 PM2.5 NAAQS. 

We are proposing to find the SIP has adequately addressed section 110(a)(2)(D)(i)(II) of the 

CAA, for the element that requires that the SIP prohibit air pollutant emissions from sources 

within a state from interfering with measures required to prevent significant deterioration of air 

quality in any other state. 

The remaining three elements of section 110(a)(2)(D)(i): (1) do not significantly 

contribute to nonattainment of the relevant NAAQS in any other state for the 2006 PM2.5 

NAAQS; (2) interference with the maintenance of the NAAQS in any other state; (3) 
Page 21 of 33

interference with measures required to protect visibility in any other state will be evaluated and 

addressed in future rulemakings. 

Interstate and international transport, pursuant to section 110(a)(2)(D)(ii): Section 

110(a)(2)(D)(ii) of the Act requires compliance with sections 115 and 126 of the Act, relating to 

interstate and international pollution abatement. Section 115(a) addresses endangerment of 

public health or welfare in foreign countries from pollution emitted in the United States. 

Pursuant to section 115, the Administrator has neither received nor issued a formal notification 

that emissions from New Mexico are endangering public health or welfare in a foreign country. 

Section 126(a) of the Act requires new or modified sources to notify neighboring states of 

potential impacts from such sources. Under section 126(a)(1)(A), SIPs must require notification 

to nearby, affected states of “major proposed new (or modified) sources” when the source is 

subject to PSD. New Mexico’s SIP approved PSD program rules at 20.2.74.400 NMAC satisfy 

the requirements of section 126(a)(1)(A) by providing that the NMED must send notice of the 

proposed action on PSD permits to, among others, “any state ... whose lands may be affected by 

emissions from the source or modification.” The State also has no pending obligations under 

section 126 of the Act. 

EPA is proposing to find that the New Mexico SIP (see Table 4) meets the requirements 

of section 110(a)(2)(D)(ii) with respect to the 2006 PM2.5 NAAQS. 

Table 4: New Mexico rules relevant to meeting section 110(a)(2)(D)(ii), as determined by 

EPA: 

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

20.2.74.400 NMAC - Permits- Prevention of 

Significant Deterioration

November 26, 2010 at 75 FR 72688

5. Adequate personnel, funding, and authority: Section 110(a)(2)(E) requires states to 

provide for adequate personnel, funding, and legal authority under state law to carry out its SIP 

and related issues. 

The State’s response: In its submittal for the 2006 PM2.5 NAAQS, the State of New Mexico 

indicated that New Mexico state statute, NMSA 1978, section 74-7-5 requires the state’s 

Environmental Improvement Board to comply with the requirements of the federal Clean Air Act 

and its associated standards, regulations and state implementing directives. 

EPA analysis: Each SIP must show that the state has legal authority to carry out the plan (40 

CFR 51.230). 

The Department of the Environment Act provides that the secretary of the NMED 

“shall... employ and fix the compensation of those persons necessary to discharge his duties...” 

See NMSA 1978 9-7A-6(B). The NMED is also authorized to receive State appropriations to 

implement environmental programs. See generally, NMSA 1978 9-7A. There are federal 

sources of funding for the implementation of the 2006 PM2.5 NAAQS, through, for example, the 

CAA sections 103 and 105 grant funds. The NMED receives federal funds on an annual basis, 

under sections 103 and 105 of the Act, to support its air quality programs. Additionally, the 

State provides funds equal to 40 percent of the 105 grant fees it receives. Fees collected for the 

Title V and non-Title V permit programs, and other inspections, maintenance and renewals 
Page 22 of 33

required of other air pollution sources also provide necessary funds to help implement the State’s 

air programs. Information on permitting fees is provided in the discussion for section 

110(a)(2)(L) below. The Air Quality Control Act designates the NMED as the State air pollution 

control agency for all purposes under federal legislation relating to air pollution and provides the 

NMED with the power “to accept, receive and administer grants or other funds or gifts from 

public and private agencies, including the federal government, or from any person ...” See 

NMSA 1978 74-2-5.1(F). 

The Air Quality Control Act delegates authority to the EIB to adopt, promulgate, publish, 

amend and repeal regulations consistent with the Air Quality Control Act to attain and maintain 

national ambient air quality standards and prevent or abate air pollution (see NMSA 1978 74-2-

5(B)(1)). The Environmental Improvement Act codified at NMSA 1978 74-1, provides the 

NMED with the power, “to enforce the rules, regulations and orders promulgated by the board 

...” (see NMSA 1978 74-1-6(F)). The Air Quality Control Act also gives the NMED the duty to 

“develop and present to the environmental improvement board or the local board a plan for the 

regulation, control, prevention or abatement of air pollution ...” and gives the EIB the authority 

to adopt such a plan (see NMSA 1978 74-2-5.1(H) and NMSA 1978 74-2-5(B)(2)) . The New 

Mexico statutes were approved into the New Mexico SIP on May 31, 1972 (37 FR 10881) and 

subsequent revisions were last approved into the SIP on November 2, 1984 (49 FR 44101). 

Therefore, the State has demonstrated it has adequate authority under its rules and regulations to 

carry out its SIP obligations with respect to the 1997 8-hour ozone and PM2.5 NAAQS. 

 To address adequate funding, the Air Quality Control Act names the NMED as the state 

air pollution control agency for all purposes under federal legislation relating to air pollution and 

provides the NMED with the power, “to accept, receive and administer grants or other funds or 

gifts from public and private agencies, including the federal government, or from any person ....” 

(see NMSA 1978 74-2-5.1(F)). In addition, the NMED annually receives Federal funds, 

authorized pursuant to sections 103 and 105 of the Act. The section 103 funds support specific, 

non-recurring projects within the air program, thus the amount of funding can vary widely from 

year to year. The section 105 funds support the foundation of the State’s air quality program, 

including the air monitoring network and annual air quality program activities. The section 105 

funding levels are relatively consistent, varying not more than about 18% from year to year.22 

The 105 funds require a 40% match from the State, while the 103 funds do not require a match. 

In fiscal year 2011 (FY11), New Mexico received $1,152,263 in 105 funds and successfully 

completed all of their air program obligations. 

 Finally, this section of the Act, in part, requires that a state provide for necessary 

assurances that they have adequate personnel to implement the SIP. New Mexico under State 

statute is required to employ sufficient personnel to carry out this SIP. The Department of the 

Environment Act provides that the secretary of the NMED “shall... employ and fix the 

compensation of those persons necessary to discharge his duties...” See NMSA 1978 9-7A6(B). This provision assures that New Mexico is statutorily required to retain adequate 

personnel to implement this SIP. 

Regarding adequate authority to issue permits under the SIP approved PSD program to 

sources of GHGs, EPA in its final PSD SIP Narrowing Rule, promulgated December 30, 2010 

(75 FR 82536), withdrew its previous approval of New Mexico’s PSD program to the extent it 

applies PSD to GHG-emitting sources below the thresholds in the final PSD Tailoring Rule. The 

 

22 For FY09, FY10, and FY11New Mexico received $1,243,792; $1,499,889; and $1,152,263 in 105 funds for each 

fiscal year, respectively. 
Page 23 of 33

PSD Tailoring Rule, which EPA promulgated June 3, 2010 (75 FR 31514), implemented 

thresholds establishing applicability of the PSD permitting program to GHG-emitting sources 

only if they emit GHGs in amounts above the 75,000/100,000 tpy of carbon dioxide equivalent 

(denoted CO2e). Thus sources in affected states, including New Mexico, will not be subject to 

federal or state requirements to obtain permits at the lower 100/250 tpy level. The Tailoring Rule 

thresholds were designed to relieve the overwhelming administrative burdens and costs 

associated with the dramatic increase in permitting burden that would have resulted from 

applying PSD at the statutory levels (100/250 tpy) on January 2, 2011. 

On November 10, 2010, New Mexico adopted revisions to the State’s PSD rules to 

implement the GHG thresholds established in EPA’s GHG Tailoring rule and submitted the 

corresponding SIP revision to EPA on December 1, 2010. On April 14, 2011, EPA proposed 

approval of New Mexico’s GHG rules submitted on December 1, 2010 (76 FR 20907). On 

August 19, 2011, EPA approved New Mexico’s GHG rules submitted on December 1, 2010 (see 

76 FR 43149). 

 We are therefore proposing that the New Mexico SIP meets the requirements of section 

110(a)(2)(E) with respect to the 2006 PM2.5 NAAQS, including the requirements of the GHG 

component of the PSD program. 

6. Stationary source emissions monitoring and reporting: Section 110(a)(2)(F) requires, 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 emissions-related data from such sources, and (iii) correlation of such reports 

by the State agency with any emission limitations or standards established pursuant to this Act, 

which reports shall be available at reasonable times for public inspection. 

The State's response: In its submittal for the 2006 PM2.5 NAAQS, the State of New Mexico 

indicated that the New Mexico regulatory requirements have been codified in 20.2.72 NMAC 

(Construction Permits), 20.2.70 NMAC (Operating Permits), and 20.2.79 NMAC (PermitsNonattainment Areas). The State indicated that requirements in 20.2.7.73 NMAC (Notice of 

Intent and Emission Inventory Requirements) provide for the reporting of emissions inventories 

in a format established by the NMED on a schedule set forth in the regulation. Furthermore, the 

State indicated that maintenance plans for the 8-hour ozone NAAQS submitted by New Mexico 

abide by the requirements of the CAA section 110(a)(1). New Mexico also asserted that 

enforceable emission limitations and other control measures are covered in the State’s Air 

Quality Control Act and those provisions of 20.2 NMAC. The State indicates that 20.2.5 NMAC 

(Source Surveillance) establishes the general requirements for maintaining and reporting records 

on emissions, including recordkeeping, data submissions, and public access to emission data. 

EPA analysis: New Mexico’s regulations at 20.2 NMAC parts 5, 7-8, 10-20, 30-34, 40-41, and 

72-74 require monitoring for compliance, recordkeeping and reporting, and provide for 

enforcement with respect to all the NAAQS and their precursors. These source monitoring 

program requirements generate data for ozone and PM2.5 and their precursors. See Table 5 

below. 

 Under the New Mexico SIP rules, the NMED is required to analyze the emissions data 

from point, area, mobile, and biogenic (natural) sources. The NMED uses this data to track 
Page 24 of 33

progress towards maintaining the NAAQS, develop control and maintenance strategies, identify 

sources and general emission levels, and determine compliance with New Mexico and EPA 

requirements. The State’s emissions data are available on the NMED website 

(http://www.nmenv.state.nm.us). These rules have been approved by EPA into the SIP. A list of 

these rules and Federal Register citations is provided below. 

 The National Emissions Inventory (NEI) is EPA’s central repository for air emissions 

data. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which 

modified the requirements for collecting and reporting air emissions data (73 FR 76539). The 

AERR shortened the time states had to report emissions data from 17 to 12 months, giving states 

one calendar year to submit emissions data. All states are required to submit a comprehensive 

emissions inventory (EI) every three years and report emissions for certain larger sources 

annually through EPA’s online Emissions Inventory System (EIS). States report emissions data 

for the six criteria pollutants and the precursors that form them – NOx, SO2, ammonia, lead, 

carbon monoxide, PM, and VOCs. Many states also voluntarily report emissions of hazardous 

air pollutants. EPA compiles the emissions data, supplementing it where necessary, and releases 

it to the general public through the website www.epa.gov/ttn/chief/eiinformation.html. 

 There are two additional requirements that New Mexico must meet regarding emissions 

inventories: the EI requirement for nonattainment areas, and the requirement to submit annual 

EI data to EPA’s NEI database. Because nonattainment NSR is outside the scope of this 

rulemaking, we are not addressing New Mexico’s EI for nonattainment areas in this proposed 

action. Regarding the requirement to submit annual EI data to EPA, the NMED is current with 

their submittals to the NEI database; the 2010 data for larger sources was submitted to EPA in 

2011. The State’s emissions data are also available on EPA’s AirData website, which provides 

access to air pollution data for the entire United States and can produce reports and maps of air 

pollution data based on criteria specified by the user (see www.epa.gov/air/data/index.html). 

 We are proposing that the New Mexico SIP meets the requirements of section 

110(a)(2)(F) with respect to the 2006 PM2.5 NAAQS. 

 We note the following parts within the State SIP as relevant to meet the requirements of 

section 110(a)(2)(F): 

20.2 NMAC 

Part 5 Source Surveillance 

Part 7 Excess Emissions 

Part 8 Emissions Leaving New Mexico 

Part 10 Woodwaste Burners 

Part 11 Asphalt Process Equipment 

Part 12 Cement Kilns 

Part 13 Gypsum Processing Plants 

Part 14 Particulate Emissions from Coal Burning Equipment 

Part 15 Pumice, Mica and Perlite Process Equipment 

Part 16 Nonferrous Smelters (New and Existing)- Particulate Matter 

Part 17 Nonferrous Smelters (Existing)- Particulate Matter 

Part 18 Oil Burning Equipment- Particulate Matter 

Part 19 Potash, Salt or Sodium Sulfate Processing Equipment- Particulate Matter 

Part 20 Lime Manufacturing Plants- Particulate Matter 

Part 30 Kraft Mills 
Page 25 of 33

Part 31 Coal Burning Equipment- Sulfur Dioxide 

Part 32 Coal Burning Equipment- Nitrogen Dioxide 

Part 33 Gas Burning Equipment- Nitrogen Dioxide 

Part 34 Oil Burning Equipment- Nitrogen Dioxide 

Part 40 Sulfuric Acid Production Units- Sulfur Dioxide, Acid Mist and Visible Emissions 

Part 41 Nonferrous Smelters- Sulfur 

Part 72 Construction Permits 

Part 73 Notice of Intent and Emissions Inventory Requirements 

Part 74 Permits- Prevention of Significant Deterioration 

Table 5: New Mexico rules relevant to meeting section 110(a)(2)(F): 

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

20.2.5 NMAC - Source Surveillance September 26, 1997 at 62 FR 50514 

20.2.7 NMAC - Excess Emissions September 14, 2009 at 74 FR 46910 

20.2.8 NMAC - Emissions Leaving New 

Mexico 

September 26, 1997 at 62 FR 50514 

20.2.10 NMAC - Woodwaste Burners September 26, 1997 at 62 FR 50514 

20.2.11 NMAC - Asphalt Process Equipment September 26, 1997 at 62 FR 50514 

20.2.12 NMAC - Cement Kilns September 26, 1997 at 62 FR 50514

20.2.13 NMAC - Gypsum Processing Plants September 26, 1997 at 62 FR 50514 

20.2.14 NMAC - Particulate Emissions from 

Coal Burning Equipment 

September 26, 1997 at 62 FR 50514

20.2.15 NMAC - Pumice, Mica and Perlite 

Process Equipment 

September 26, 1997 at 62 FR 50514

20.2.16 NMAC - Nonferrous Smelters (New 

and Existing)- Particulate Matter 

September 26, 1997 at 62 FR 50514 

20.2.17 NMAC - Nonferrous Smelters 

(Existing)- Particulate Matter 

September 26, 1997 at 62 FR 50514 

20.2.18 NMAC - Oil Burning EquipmentParticulate Matter September 26, 1997 at 62 FR 50514 

20.2.19 NMAC - Potash, Salt or Sodium 

Sulfate Processing Equipment- Particulate 

Matter 

September 26, 1997 at 62 FR 50514 

20.2.20 NMAC - Lime Manufacturing PlantsParticulate Matter September 26, 1997 at 62 FR 50514 

20.2.30 NMAC - Kraft Mills September 26, 1997 at 62 FR 50514 

20.2.31 NMAC - Coal Burning EquipmentSulfur Dioxide September 26, 1997 at 62 FR 50514 

20.2.32 NMAC - Coal Burning EquipmentNitrogen Dioxide September 26, 1997 at 62 FR 50514 

20.2.33 NMAC - Gas Burning EquipmentNitrogen Dioxide September 26, 1997 at 62 FR 50514 

20.2.34 NMAC - Oil Burning EquipmentNitrogen Dioxide September 26, 1997 at 62 FR 50514 

20.2.40 NMAC - Sulfuric Production UnitsSulfur Dioxide, Acid Mist and Visible September 26, 1997 at 62 FR 50514 
Page 26 of 33

Emissions 

20.2.41 NMAC - Nonferrous Smelters- Sulfur September 26, 1997 at 62 FR 50514 

20.2.72 NMAC - Construction Permits September 26, 1997 at 62 FR 50514 

20.2.73 NMAC - Notice of Intent and 

Emissions Inventory Requirements 

August 12, 2010 at 75 FR 48860 

20.2.74 NMAC - Permits- Prevention of 

Significant Deterioration 

November 26, 2010 at 75 FR 72688 

7. Emergency power: Section 110(a)(2)(G) requires states to provide for authority to address 

activities causing imminent and substantial endangerment to public health, including adequate 

contingency plans to implement the emergency episode provisions in their SIPs. 

The State's response: In its submittal for the 2006 PM2.5 NAAQS, the State of New Mexico 

indicated that New Mexico has adopted an Air Pollution Episode Contingency Plan (56 FR 

38074, August 12, 1991),23 that covers air pollution episodes and the occurrence of an 

emergency due to the effects of the pollutants on the health of persons. New Mexico also 

indicated that they plan to revise their Air Pollution Episode Contingency Plan to include 

significant harm levels for PM2.5 once EPA finalizes a rule establishing these. 

EPA analysis: The NMED has authority to formulate contingency plans for environmental 

emergencies, pursuant to the Air Quality Control Act and has authority to issue cease and desist 

orders as provided in NMSA 1978 74-2-10, which provides enforcement authority. 

 We compared the State’s Air Pollution Episode Contingency Plan to 40 CFR 51 Subpart 

H – Prevention of Air Pollution Emergency Episodes and Appendix L to Part 51 - Example 

Regulations for Prevention of Air Pollution Emergency Episodes. Subpart H provides a 

classification system for episode plans. Each region in a state is classified separately with 

respect to each of the following pollutants: sulfur dioxide, PM, carbon monoxide, nitrogen 

dioxide, and ozone (40 CFR 51.150). An area classified as a Priority I region for ozone has 

ambient concentrations greater than 195 micrograms per cubic meter (denoted μg/m3

) or 0.10 

ppm for a 1-hour maximum. The regulations do not establish Priority II regions for ozone. 

Areas that do not meet the criteria for Priority I for ozone are classified Priority III. For PM, a 

Priority I region has ambient concentrations greater than 95 μg/m3

 annual geometric mean or 325 

μg/m3

 for a 24-hour maximum. A Priority II region is any area which is not a Priority I region 

and has ambient concentrations between 60–95 μg/m3 annual geometric mean or 150–325 μg/m3

for a 24-hour maximum. A Priority IA Region is any area which is Priority I primarily because 

of emissions from a single point source. Areas that do not meet the criteria for Priority I or II are 

classified Priority III. Table 6 below summarizes the classification for ozone and PM. Note that 

a classification scheme for 8-hour ozone is not addressed under Subpart H and while the table 

does not identify whether PM refers to PM10 or PM2.5, the date of promulgation for Subpart H 

 

23 The State erred in providing the date and Federal Register citation for EPA’s approval of New Mexico’s Air 

Pollution Episode Contingency Plan (56 FR 38074). The date and Federal Register citation the State provided in 

their submittal is for EPA’s approval of Albuquerque-Bernalillo County’s Air Pollution Episode Contingency Plan, 

submitted on April 14, 1989,and applies only within the boundaries of Bernalillo County (including the City of 

Albuquerque). EPA approved New Mexico’s Air Pollution Episode Contingency Plan on August 21, 1990 (correct 

citation is 55 FR 34013). 
Page 27 of 33

would support PM10 (November 7, 1986, 51 FR 40668), as amended on July 20, 1993 (see 58 FR 

38822). 

Table 6: Classification of Regions for Episode Plans for Ozone and Particulate Matter 

(40 CFR 51.150) 

Parameter Priority I Priority II Priority III 

Ozone Ambient concentrations 

> 195 μg/m3 (0.10 ppm) 

1-hour maximum 

Not defined Areas which do not 

meet the criteria for 

Priority I 

Particulate 

matter 

Ambient concentrations 

> 95 μg/m3 annual 

geometric mean; 325 μg/m3

24-hour maximum 

Ambient 

concentrations 

between 60-95 μg/m3

annual geometric 

mean; 150-325 μg/m3

24-hour maximum. 

Areas which do not 

meet the criteria for 

Priority I or II 

The significant harm level (SHL) for the 8-hour ozone NAAQS will remain unchanged as 

0.6 parts per million (ppm) ozone, 2-hour average, as indicated in 40 CFR 51.151. EPA believes 

that the existing ozone-related provisions of 40 CFR Subpart H remain appropriate. Therefore, 

EPA expects that for purposes of the 1997 8-hour ozone NAAQS, states need only to confirm 

that they have existing emergency episode plan provisions consistent with EPA’s existing 

regulatory requirements.24

 The New Mexico Air Pollution Episode Contingency Plan addresses the pollutants 

specified under 40 CFR 51.150. Using 2006-2010 certified ambient air quality monitoring 

data,25 we determined that areas within New Mexico meet the classification for Priority 1 for 1-

hour ozone and Priority III for particulate matter. We found that the provisions in New Mexico’s 

Air Pollution Episode Contingency Plan are consistent with those of 40 CFR 51.151 and 152, 

and Appendix L to Part 51. The State's Air Pollution Episode Contingency Plan was approved 

into the New Mexico SIP (see 55 FR 34013, August 21, 1990). As discussed in section II, 

subsection A, today we are also proposing to make a CFR codification technical correction to 

amend the table titled “EPA Approved Nonregulatory Provisions And Quasi-Regulatory 

Measures In The New Mexico SIP” under 40 CFR 52.1620(e), to include an entry for the New 

Mexico Air Pollution Episode Contingency Plan approved by EPA into the SIP on August 21, 

1990 (55 FR 34013, 40 CFR 52.1639(a)). EPA is proposing to make this CFR codification 

technical correction because it clarifies that EPA previously approved the State’s air pollution 

episode provisions into the New Mexico SIP. 

While the State has appropriate general emergency powers to address PM2.5 related 

episodes, SHLs for PM2.5 are not provided under Subpart H, nor have SHLs for the 1997 PM2.5

standards been proposed by EPA. The New Mexico SIP has not been revised to address 

contingency plans for PM2.5. To evaluate whether the New Mexico SIP provides adequate 

contingency plans for the 1997 PM2.5 NAAQS, EPA used guidance issued in 2009 for the 2006 

 

24 October 2, 2007 Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone 

and PM2.5 NAAQS, Memorandum from William T. Harnett, Director, Air Quality Policy Division, OAQPS. 25 The ozone and PM data are available through AQS. The AQS data for PM are provided in the docket for this 

rulemaking. 
Page 28 of 33

PM2.5 NAAQS.26, 27 The 2009 Guidance for PM2.5 recommends that a state with at least one 

monitored 24-hour PM2.5 value exceeding 140.4 μg/m3

 since 2006 establish an emergency 

episode plan and contingency measures to be implemented should such level be exceeded again. 

Additionally, the 2009 Guidance for PM2.5 recommends that if no area of a state has 

exceeded this 140.4 μg/m3

 level since 2006 and the state has appropriate general emergency 

powers to address PM2.5 related episodes, then no specific emergency episode plans are 

necessary at this time given the existing monitored levels. The 2006-2010 data for New Mexico28

do not exceed 140.4 μg/m3 and have consistently remained below the level of 140.4 μg/m3. In 

fact, these data indicate that New Mexico’s PM2.5 levels have stayed below 55 μg/m3

. In 

addition, Subpart H at 51.153 provides for reevaluation of episode plans and requires that, 

“States should periodically reevaluate priority classifications of all Regions or portion of Regions 

within their borders. The reevaluation must consider the three most recent years of air quality 

data. If the evaluation indicates a change to a higher priority classification, appropriate changes 

in the episode plan must be made as expeditiously as practicable.” New Mexico’s data does not 

indicate a change to a higher priority, but suggests that emergency episode plans for the PM2.5

NAAQS are not needed at this time. 

 We are proposing that the New Mexico SIP meets the requirements of section 

110(a)(2)(G) with respect to the 2006 PM2.5 NAAQS. 

8. Future SIP revisions: Section 110(a)(2)(H) requires states to have the authority to revise 

their SIPs in response to changes in the NAAQS, availability of improved methods for attaining 

NAAQS, or in response to an EPA finding that the SIP is substantially inadequate. 

The State’s response: In its submittal, the NMED addressed how the New Mexico SIP satisfies 

this particular requirement of section 110(a)(2)(H) as follows:. 

New Mexico is a compilation of regulations, plans, and submittals that act to improve and 

maintain air quality in accordance with national standards. The authority to develop or revise the 

SIP is based on the authority to adopt new regulations, revise existing regulations, and conduct 

business in a manner to meet the NAAQS. New Mexico state statute § 74-7-5 gives the board 

authority to perform these functions. § 74-7-5 also provides the board the authority to adopt 

regulations to abate, control, and prohibit air pollution throughout New Mexico in accordance 

with the provisions of State Rules Act [Chapter 14, Article 4, NMSA 1978]. Nothing in New 

Mexico's statutory or regulatory authority prohibits the State from revising the SIP in the event 

of a revision to the NAAQS 

EPA analysis: The Air Quality Control Act and the Environmental Improvement Act authorize 

the NMED as the primary agency in the state concerned with environmental protection and 

enforcement of regulations, including but not limited to air quality (NMSA 1978 74-1 and 

NMSA 1978 74-2). The Air Quality Control Act gives the NMED the authority to “develop and 

 

26 “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) 

National Ambient Air Quality Standards (NAAQS)”, September 29, 2009 memorandum from William T. Harnett, 

Director, Air Quality Policy Division to Regional Air Division Directors. 

27 On October 17, 2006, EPA revised the 24-hour PM2.5 NAAQS from 65μg/m3

 to 35μg/m3 (see 71 FR 61144). 28 The ozone and PM data are available through AQS. The 2006-2011 AQS data for PM2.5 are provided in the 

docket for this rulemaking. 
Page 29 of 33

present to the environmental improvement board a plan for the control, regulation, prevention or 

abatement of air pollution...,” and authorizes the EIB to adopt such a plan (see NMSA 1978 74-

2-5.1(H) and NMSA 1978 74-2-5(B)(2)). The Air Quality Control Act also authorizes the New 

Mexico Environmental Improvement Board to “adopt, promulgate, publish, amend and repeal 

regulations consistent with the Air Quality Control Act to attain and maintain the national 

ambient air quality standards and prevent and abate air pollution .... ,” and the Environmental 

Improvement Act authorizes the NMED to enforce such rules, regulations and orders 

promulgated by the EIB (see NMSA 1978 74-2-5(B)(1) and NMSA 1978 74-1-6(F)). 

Furthermore, the Air Quality Control Act requires the NMED to, “... advise, consult, contract 

with and cooperate with local authorities, other states, the federal government and other 

interested persons or groups in regard to matters of common interest in the field of air quality 

control...” (see NMSA 1978 74-2-5.2(B)). Thus, New Mexico has the authority to revise its SIP, 

as may be necessary to account for revisions of the NAAQS, adopt more effective methods of 

attaining the NAAQS, and respond to EPA SIP calls. 

 We are proposing that the New Mexico SIP meets the requirements of section 

110(a)(2)(H) with respect to the 2006 PM2.5 NAAQS. 

9. Consultation, public notice, and PSD and visibility protection:

29 Section 110(a)(2)(J) 

requires states to provide a process for consultation with local governments and Federal Land 

Managers carrying out NAAQS implementation requirements pursuant to section 121 relating to 

consultation. Section 110(a)(2)(J) further requires states to notify the public if NAAQS are 

exceeded in an area and to enhance public awareness of measures that can be taken to prevent 

exceedances. Section 110(a)(2)(J) also requires States to meet applicable requirements of Part C 

related to prevention of significant deterioration and visibility protection. 

The State's response: Regarding PSD and visibility protection, New Mexico indicated that the 

State has adopted 20.2.74 NMAC (Permits- Prevention of Significant Deterioration) following 

the requirements outlined in 40 CFR 52 under section 161 of the CAA (42 U.S.C.A. section 

7471). The State indicated that these provisions were approved by EPA as part of the SIP. 

EPA analysis: Regarding consultation with government officials and public notification, the Air 

Quality Control Act, codified at NMSA 1978 74-2, provides that “no regulations or emission 

control requirement shall be adopted until after a public hearing by the environmental 

improvement board or the local board” and provides that, “at the hearing, the environmental 

improvement board or the local board shall allow all interested persons reasonable opportunity to 

submit data, views, or arguments orally or in writing and to examine witnesses testifying at the 

hearing” (see NMSA 1978 74-2-6(B) and (D)). In addition, the Air Quality Control Act provides 

that the NMED shall have the power and duty to “advise, consult, contract with and cooperate 

with local authorities, other states, the federal government and other interested persons or groups 

in regard to matters of common interest in the field of air quality control...” (see 1978 74-2-

5.2(B)). The State’s PSD rules at 20.2.74.400 NMAC mandate that the NMED shall provide for 

public participation and notification regarding permitting applications to any other state or local 

air pollution control agencies, local government officials of the city or county where the source 

will be located, and FLMs whose lands may be affected by emissions from the source or 

 

29 Section 110(a)(2)(J) is divided into three components: Consultation with government officials; public 

notification; and PSD and visibility protection. 
Page 30 of 33

modification. The State’s PSD rules at 20.2.74.403 NMAC require the NMED to consult with 

FLMs regarding permit applications for sources impacting Class I Federal areas.30 Furthermore, 

the State of New Mexico has committed in the SIP to consult continually with the FLMs on the 

review and implementation of the visibility program, and the State recognizes the expertise of the 

FLM in monitoring and new source review applicability analyses for visibility and has agreed to 

notify the FML of any advance notification or early consultation with a major new or modifying 

source prior to the submission of the permit application.31 The State’s Transportation 

Conformity rules at 20.2.99.116 and 20.2.99.124 NMAC require that interagency consultation 

and opportunity for public involvement be provided before making transportation conformity 

determinations and before adopting applicable SIP revisions on transportation-related SIPs.32 

These rules are in the Federally-approved SIP. We are proposing that the New Mexico SIP meets 

the requirements of this portion of section 110(a)(2)(J) with respect to the 2006 PM2.5 NAAQS. 

 Section 110(a)(2)(J) further requires states to notify the public if NAAQS are exceeded in 

an area and to enhance public awareness of measures that can be taken to prevent exceedances. 

Provisions regarding public notification of instances or areas in which any primary NAAQS was 

exceeded were approved into the New Mexico SIP on August 24, 1983 (48 FR 38466). In 

addition, the NMED air monitoring website provides live air quality data for each of the 

monitoring stations in New Mexico.33 The website also provides information on the health 

effects of ozone, particulate matter, and other criteria pollutants. We are proposing that the New 

Mexico SIP meets the requirements of this portion of section 110(a)(2)(J) with respect to the 

2006 PM2.5 NAAQS. 

Regarding PSD and visibility protection, section 110(a)(2)(J) requires States to meet 

applicable requirements of Part C related to PSD and visibility protection. As detailed in the 

subsection addressing the requirements of section 110(a)(2)(C) above, New Mexico’s PSD 

program was conditionally approved into the SIP on February 27, 1987 (52 FR 5964). New 

Mexico has since then met the conditions of our conditional approval, so we are proposing to 

convert our conditional approval into a full approval. The State’s PSD program is in the SIP (52 

FR 5964, 53 FR 44191, 55 FR 43013, 56 FR 20137, 61 FR 53639, 68 FR 11316, 68 FR 74483, 

72 FR 50879, and 75 FR 72688). EPA approved New Mexico’s Visibility Protection Plan and 

approved a Long-Term Strategy for Visibility Protection into the New Mexico SIP on January 

27, 2006 (71 FR 4490). With regard to the applicable requirements for visibility protection, EPA 

recognizes that states are subject to visibility and regional haze program requirements under 

sections 169A and 169B of the Act. In the event of the establishment of a new NAAQS, 

however, these visibility and regional haze program requirements do not change. Thus, we find 

that there is no new visibility obligation triggered under section 110(a)(2)(J) when a new 

NAAQS becomes effective. We are proposing that the New Mexico SIP meets the requirements 

of this portion of section 110(a)(2)(J) with respect to the 2006 PM2.5 NAAQS. 

10. Air quality modeling and submission of data: Section 110(a)(2)(K) requires that SIPs 

provide for performing air quality modeling for predicting effects on air quality of emissions 

from any NAAQS pollutant and submission of such data to EPA upon request. 

 

30 See 75 FR 72688, published November 26, 2010 and 72 FR 50879, published September 5, 2007. 

31 See 71 FR 4490, published January 27, 2006. 

32 See 65 FR 14877. 

33 Please see http://air.nmenv.state.nm.us/. 
Page 31 of 33

The State’s response: The State indicated that New Mexico has developed Air Dispersion 

Modeling Guidelines that follow EPA guidelines for air dispersion modeling and that also 

include some internal policy language. 

EPA analysis: The NMED has the power and duty, under the Air Quality Control Act to 

“develop facts and make investigations and studies,” thereby providing for the functions of 

environmental air quality assessment (NMSA 1978 74-2-5). Modeling and emissions reductions 

measures have been submitted by the State and approved into the SIP. For example, we 

reference the air modeling and control measures submitted within the Attainment Demonstration 

for the San Juan County Early Action Compact Area, approved by EPA and adopted into the SIP 

on August 17, 2005 (70 FR 48285).34 Additionally, New Mexico has the ability to perform 

modeling for the primary and secondary PM2.5 standards on a case-by-case permit basis 

consistent with their SIP-approved PSD rules and consistent with EPA guidance and EPA’s 

Guideline on Air Quality Models at 40 CFR Part 51, Appendix W. 

This section of the Act also requires that a SIP provide for the submission of data related 

to such air quality modeling to the EPA upon request. The Air Quality Control Act authorizes 

NMED to cooperate with the federal government in regard to matters of common interest in the 

field of air quality control, thereby allowing it to make this submission to the EPA (see NMSA 

1978 74-2-5.2(B)). 

 We are proposing that the New Mexico SIP meets the requirements of section 

110(a)(2)(K) with respect to the 2006 PM2.5 NAAQS. 

11. Permitting fees: Section 110(a)(2)(L) requires SIPs to require each major stationary source 

to pay permitting fees to cover the cost of reviewing, approving, implementing and enforcing a 

permit. 

The State's response: The State indicated that the fee requirements of 20.2.71 NMAC 

(Operating Permit Emission Fees) and 20.2.75 NMAC (Construction Permit Fees) were 

approved by EPA as meeting the CAA requirements and were incorporated into New Mexico’s 

SIP (11/25/97, 62 FR 50514). The State also indicates that New Mexico’s Title V operating 

permit program in 20.2.70 NMAC was approved by EPA in 1997 (11/25/97, 62 FR 50514).35 

EPA analysis: The Air Quality Control Act provides the EIB with the legal authority for 

establishing an emission fee schedule and a construction permit fee schedule to recover the 

reasonable costs of acting on permit applications, implementing, and enforcing permits (NMSA 

 

34 The docket for this San Juan County rulemaking action is available through www.regulations.gov. The docket ID 

is EPA-R06-OAR-2005-NM-0002. 

35 The date and Federal Register citation provided by New Mexico is for the rulemaking in which we made a CFR 

codification error in 40 CFR 52.1620(c) by incorrectly including entries in the table titled “EPA Approved New 

Mexico Regulations” for part 70 (Operating Permits) and part 71 (Operating Permit Emission Fees) of 20.2 NMAC. 

As explained in section II, subsection B of this TSD, part 70 and part 71 of 20.2 NMAC constitute New Mexico’s 

Title V permitting program and the associated permitting fees, respectively. New Mexico’s Title V permitting 

program is outside the scope of the New Mexico SIP, and parts 70 and 71 of 20.2 NMAC are State regulations that 

have not been approved into the New Mexico SIP. As explained in section II, subsection B, today EPA is also 

proposing to make CFR technical corrections by amending 40 CFR 52.1620(c) and 40 CFR 52.1640(c)(66)(i)(B), to 

make clear that New Mexico’s Title V permitting program has not been approved by EPA into the New Mexico SIP. 
Page 32 of 33

1978 74-2-7). New Mexico’s Permit Fee System was approved by EPA into the SIP on July 17, 

1991 (56 FR 32511). New Mexico’s Permit Fee System implements a fee system for all 

preconstruction air permits issued by NMED. New Mexico’s regulations for construction permit 

fees are found at 20.2.75 NMAC. Operating permits, also known as Title V operating permit 

programs (see footnote 22, on p. 6 above) and associated fees legally are not part of the SIP, but 

were approved by EPA on November 26, 1996 (61 FR 60032) as part of the New Mexico Title V 

Program. 

 We are proposing that the New Mexico SIP meets the requirements of section 

110(a)(2)(L) with respect to the 2006 PM2.5 NAAQS. 

12. Consultation/participation by affected local entities: Section 110(a)(2)(M) requires states 

to provide for consultation and participation in SIP development by local political subdivisions 

affected by the SIP. 

The State’s response: In its submittal, the NMED addressed how the New Mexico SIP satisfies 

this particular requirement of section 110(a)(2)(M) as follows: 

New Mexico state statute § 74-2-5.2 "State air pollution control agency; specific duties and powers 

of the department," requires advising; consulting; contracting with and cooperating with local 

authorities, other states, the federal government and other interested persons or groups in regard to 

matters of common interest in the field of air quality control; and initiation of cooperative action 

between a local authority and the department, between one local authority and another or among any 

combination of local authorities and the department for control of air pollution in areas having related 

air pollution problems that overlap the boundaries of political subdivisions; and entering into 

agreements and compacts with adjoining states and Indian tribes, where appropriate. The State's 

public participation requirements and procedures fulfill the requirements for consultation with local 

political subdivisions affected by the SIP.

EPA analysis: As described under the section addressing the requirements of element 

110(a)(2)(J) above, regarding consultation with government officials and public notification, the 

Air Quality Control Act provides that, “no regulations or emission control requirement shall be 

adopted until after a public hearing by the environmental improvement board or the local board” 

and provides that, “at the hearing, the environmental improvement board or the local board shall 

allow all interested persons reasonable opportunity to submit data, views, or arguments orally or 

in writing and to examine witnesses testifying at the hearing” (see NMSA 1978 74-2-6(B) and 

(D)). In addition, the Air Quality Control Act provides that the NMED shall have the power and 

duty to “advise, consult, contract with and cooperate with local authorities, other states, the 

federal government and other interested persons or groups in regard to matters of common 

interest in the field of air quality control...” (see NMSA 1978 74-2-5.2(B)). New Mexico’s PSD 

regulations at 20.2.74.400 NMAC mandate that the NMED shall provide for public participation 

and notification regarding permitting applications to any other state or local air pollution control 

agencies, local government officials of the city or county where the source will be located, and 

FLMs whose lands may be affected by emissions from the source or modification. New 

Mexico’s Transportation Conformity regulations at 20.2.99.116 and 20.2.99.124 NMAC require 

that interagency consultation and opportunity for public involvement be provided before making 
Page 33 of 33

transportation conformity determinations and before adopting applicable SIP revisions on 

transportation-related SIPs.36 These rules are in the federally-approved SIP. 

 We are proposing that the New Mexico SIP meets the requirements of section 

110(a)(2)(M) with respect to the 2006 PM2.5 NAAQS. 

IV. EPA’s Recommendation

We reviewed New Mexico’s submittal, SIP, and air quality data for PM2.5 for compliance 

with the requirements of sections 110(a)(1) and (2) of the Act for the 2006 PM2.5 standard. We 

recommend that EPA propose to approve the submittal provided by the State of New Mexico to 

demonstrate that the New Mexico SIP meets the requirements of sections 110(a)(1) and (2) of 

the Act with respect to the 2006 PM2.5 standard. The submittal addresses the infrastructure 

elements specified in the CAA section 110(a)(2), necessary to implement, maintain, and enforce 

the 2006 fine particulate matter (PM2.5) NAAQS. 

We recommend approval of the New Mexico SIP for the following elements: 

Emission limits and other control measures: Section 110(a)(2)(A) 

Ambient air quality monitoring/data system: Section 110(a)(2)(B) 

Program for enforcement of control measures: Section 110(a)(2)(C) 

Interstate transport: Section 110(a)(2)(D)(ii) 

Adequate resources: Section 110(a)(2)(E) 

Stationary source monitoring system: Section 110(a)(2)(F) 

Emergency power: Section 110(a)(2)(G) 

Future SIP revisions: Section 110(a)(2)(H) 

Consultation with government officials: Section 110(a)(2)(J) 

Public notification: Section 110(a)(2)(J) 

PSD and visibility protection: Section 110(a)(2)(J) 

Air quality and modeling/data: Section 110(a)(2)(K) 

Permitting fees: Section 110(a)(2)(L) 

Consultation/participation by affected local entities: Section 110(a)(2)(M) 

V. References

1. Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 NAAQS, Memorandum from William T. Harnett, Director, Air Quality Policy 

Division, OAQPS, to Air Division Directors; dated October 2, 2007. 

2. Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 2006 24-Hour 

Fine Particle (PM2.5) NAAQS, Memorandum from William T. Harnett, Director, Air Quality 

Policy Division, OAQPS, to Regional Air Division Directors, dated September 29, 2009. 

 

36 See 65 FR 14877.