[Federal Register Volume 79, Number 238 (Thursday, December 11, 2014)]
[Proposed Rules]
[Pages 73512-73525]
[FR Doc No: 2014-29091]

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 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2011-0821; FRL-9920-35-Region 6]

Approval and Promulgation of Air Quality Implementation Plans;
State of New Mexico; Infrastructure SIP Requirements for the 2008 Lead
National Ambient Air Quality Standard and Repeal of Cement Kilns Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve elements of a State Implementation Plan (SIP) submission from
the State of New Mexico addressing the applicable requirements of Clean
Air Act (CAA) section 110 for the 2008 National Ambient Air Quality
Standards (NAAQS) for Lead (Pb), which requires that each state adopt
and submit a SIP to support implementation, maintenance, and
enforcement of each new or revised NAAQS promulgated by EPA. These SIPs
are commonly referred to as ``infrastructure'' SIPs. The infrastructure
requirements are designed to ensure that the structural components of
each state's air quality management program are adequate to meet the
state's responsibilities under the CAA. Additionally, we are proposing
to approve a revision to the New Mexico SIP that repeals an existing
state-wide cement kilns rule.

DATES: Written comments must be received on or before January 12, 2015.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R06-OAR-2011-0821, by one of the following methods:
     www.regulations.gov. Follow the online instructions.
     Email: Mr. Terry Johnson at<EMAIL_ADDRESS>     Mail or delivery: Mr. Guy Donaldson, Chief, Air Planning
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202-2733. Deliveries are accepted only
between the hours of 8 a.m. and 4 p.m. weekdays, and not on legal
holidays. Special arrangements should be made for deliveries of boxed
information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2011-0821. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Planning Section
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202-2733. The files will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below or Mr. Bill Deese at<PHONE_NUMBER> to make an
appointment. If possible, please make the appointment at least two
working days in advance of your visit. There will be a fee of 15 cents
per page for making photocopies of documents. On the day of the visit,
please check in at the EPA Region 6 reception area at 1445 Ross Avenue,
Suite 700, Dallas, Texas.

FOR FURTHER INFORMATION CONTACT: Mr. Terry Johnson, Air Planning
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone<PHONE_NUMBER>;
fax number<PHONE_NUMBER>; email address<EMAIL_ADDRESS>for information concerning the infrastructure SIP submittal for the
2008 Pb NAAQS, or Mr. Alan Shar, telephone<PHONE_NUMBER>, email
address<EMAIL_ADDRESS>for information concerning the revision to
the SIP to repeal the cement kilns rule.

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

Table of Contents

I. Background
II. Applicable Elements of Sections 110(a)(1) and (2) Related to the
2008 Pb NAAQS
III. EPA's Approach to the Review of Infrastructure SIP Submissions
IV. EPA's Evaluation of New Mexico's 2008 Pb NAAQS Infrastructure
Submission
V. EPA's Evaluation of New Mexico's SIP Revision Repealing the
Cement Kilns Rule
VI. Proposed Action
VII. Statutory and Executive Order Reviews

I. Background

    EPA is proposing action on a September 9, 2011 SIP submission from
New Mexico that addresses the infrastructure requirements of CAA
sections 110(a)(1) and (a)(2) for the 2008 Pb NAAQS. The requirement
for states to make a SIP submission of this type arises out of CAA
section 110(a)(1). 42 U.S.C. Sec. 7410(a)(1). Pursuant to section
110(a)(1), states must make SIP submissions ``within 3 years (or such
shorter period as the Administrator may prescribe) after the
promulgation of a national primary ambient air quality standard (or any
revision thereof),'' and these SIP submissions are to provide for the
``implementation, maintenance, and

enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of Title I of
the CAA, ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of CAA section 169A, and
nonattainment new source review permit program submissions to address
the permit requirements of CAA, title I, part D.
    We are also proposing to approve revisions to New Mexico
Administrative Code (NMAC), Title 20 Environmental Protection, Chapter
2 Air Quality (Statewide), Part 12 Cement Kilns (NMAC 20.2.12--Cement
Kilns) rule submitted to EPA by the New Mexico Environment Department
(NMED) through a letter dated July 31, 2014. This SIP revision repeals
the existing cement kilns rule in effect.
    The existing NMAC 20.2.12--Cement Kilns rule was part of the
original New Mexico SIP, and last approved by EPA on September 26, 1997
(62 FR 50518). See also 40 CFR 52.1620(c)(66).

II. Applicable Elements of Sections 110(a)(1) and (2) Related to the
2008 Pb NAAQS

    On October 15, 2008, EPA revised the primary and secondary Pb NAAQS
(hereafter the 2008 Pb NAAQS).\1\ The level of the primary (health-
based) standard was revised to 0.15 micrograms per cubic meter ([mu]g/
m3), measured as total suspended particles (TSP) and not to be exceeded
with an averaging time of a rolling 3-month period. EPA also revised
the secondary (welfare-based) standard to be identical to the primary
standard (73 FR 66964).\2\
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    \1\ The previous Pb NAAQS were issued in 1978. They established
a primary standard of 1.5 [mu]g/m3 not to be exceeded with an
averaging time of discrete calendar quarters (43 FR 46246, October
5, 1978).
    \2\ Although the effective date of the Federal Register notice
for the final rule was January 12, 2009, the rule was signed by the
Administrator and publicly disseminated on October 15, 2008.
Therefore, the deadline for submittal of infrastructure SIPs for the
2008 Pb NAAQS was October 15, 2011.
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    For the 2008 Pb NAAQS, states typically have met many of the basic
program elements required in section 110(a)(2) through earlier SIP
submissions in connection with previous NAAQS. Nevertheless, pursuant
to section 110(a)(1), states have to review and revise, as appropriate,
their existing SIPs to ensure that they are adequate to address the
2008 Pb NAAQS. To assist states in meeting this statutory requirement,
EPA issued guidance on October 14, 2011, addressing the infrastructure
SIP elements required under sections 110(a)(1) and (2) for the 2008 Pb
NAAQS.\2\ EPA will address these elements below under the following
headings: (A) Emission limits and other control measures; (B) Ambient
air quality monitoring/data system; (C) Program for enforcement of
control measures (PSD, New Source Review for nonattainment areas, and
construction and modification of all stationary sources); (D)
Interstate and international transport; (E) Adequate authority,
resources, implementation, and oversight; (F) Stationary source
monitoring system; (G) Emergency authority; (H) Future SIP revisions;
(I) Nonattainment areas; (j) Consultation with government officials,
public notification, prevention of significant deterioration (PSD), and
visibility protection; (K) Air quality and modeling/data; (L)
Permitting fees; and (M) Consultation/participation by affected local
entities.

III. EPA's Approach to the Review of Infrastructure SIP Submissions

    Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\3\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
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    \3\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
Act, which specifically address nonattainment SIP requirements.\4\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years, or in some cases three years, for such designations to be
promulgated.\5\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
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    \4\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
    \5\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether EPA must act upon such SIP submission in a
single action. Although section 110(a)(1) directs states to submit ``a
plan'' to meet these requirements, EPA

interprets the CAA to allow states to make multiple SIP submissions
separately addressing infrastructure SIP elements for the same NAAQS.
If states elect to make such multiple SIP submissions to meet the
infrastructure SIP requirements, EPA can elect to act on such
submissions either individually or in a larger combined action.\6\
Similarly, EPA interprets the CAA to allow it to take action on the
individual parts of one larger, comprehensive infrastructure SIP
submission for a given NAAQS without concurrent action on the entire
submission. For example, EPA has sometimes elected to act at different
times on various elements and sub-elements of the same infrastructure
SIP submission.\7\
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    \6\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
    \7\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, EPA notes that not every element of section
110(a)(2) would be relevant, or as relevant, or relevant in the same
way, for each new or revised NAAQS. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure SIP submission for purposes of
section 110(a)(2)(B) could be very different for different pollutants,
for example because the content and scope of a state's infrastructure
SIP submission to meet this element might be very different for an
entirely new NAAQS than for a minor revision to an existing NAAQS.\8\
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    \8\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the PSD program required in part C of title I of the CAA,
because PSD does not apply to a pollutant for which an area is
designated nonattainment and thus subject to part D planning
requirements. As this example illustrates, each type of SIP submission
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\9\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\10\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\11\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and
110(a)(2) such that infrastructure SIP submissions need to address
certain issues and need not address others. Accordingly, EPA reviews
each infrastructure SIP submission for compliance with the applicable
statutory provisions of section 110(a)(2), as appropriate.
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    \9\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
    \10\ ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \11\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's SIP
appropriately addresses the requirements of section 110(a)(2)(E)(ii)
and section 128. The 2013 Guidance explains EPA's interpretation that
there may be a variety of ways by which states can appropriately
address these substantive statutory requirements, depending on the
structure of an

individual state's permitting or enforcement program (e.g., whether
permits and enforcement orders are approved by a multi-member board or
by a head of an executive agency). However they are addressed by the
state, the substantive requirements of section 128 are necessarily
included in EPA's evaluation of infrastructure SIP submissions because
section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the
provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and NSR pollutants, including
GHGs. By contrast, structural PSD program requirements do not include
provisions that are not required under EPA's regulations at 40 CFR
51.166 but are merely available as an option for the state, such as the
option to provide grandfathering of complete permit applications with
respect to the 2012 PM2.5 NAAQS. Accordingly, the latter
optional provisions are types of provisions EPA considers irrelevant in
the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's SIP meets basic structural requirements. For example, section
110(a)(2)(C) includes, inter alia, the requirement that states have a
program to regulate minor new sources. Thus, EPA evaluates whether the
state has an EPA-approved minor new source review program and whether
the program addresses the pollutants relevant to that NAAQS. In the
context of acting on an infrastructure SIP submission, however, EPA
does not think it is necessary to conduct a review of each and every
provision of a state's existing minor source program (i.e., already in
the existing SIP) for compliance with the requirements of the CAA and
EPA's regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction 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 may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) 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''). Thus, EPA believes it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions.\12\ It is important to
note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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    \12\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then EPA would need to evaluate that provision
for compliance against the rubric of applicable CAA requirements in
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or to otherwise comply with the CAA.\13\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\14\ Significantly, EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies at a later time. For example, although it
may not be appropriate to

require a state to eliminate all existing inappropriate director's
discretion provisions in the course of acting on an infrastructure SIP
submission, EPA believes that section 110(a)(2)(A) may be among the
statutory bases that EPA relies upon in the course of addressing such
deficiency in a subsequent action.\15\
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    \13\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \14\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under CAA section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
    \15\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. EPA's Evaluation of New Mexico's 2008 Pb NAAQS Infrastructure
Submission

    On September 9, 2011, the State of New Mexico, by letter from the
Governor of New Mexico, submitted a SIP revision to address the
infrastructure SIP requirements for the 2008 Pb NAAQS. The SIP
submission offers a demonstration that New Mexico's existing SIP
satisfies all infrastructure SIP elements required by section 110(a)(2)
of the CAA for the 2008 Pb NAAQS. Public notice and a public hearing
were provided by the State of New Mexico when developing this SIP
submission. This SIP submission became complete by operation of law on
March 9, 2012. See CAA section 110(k)(1)(B). EPA has reviewed New
Mexico's infrastructure SIP submission and the relevant statutory and
regulatory authorities and provisions referenced in that submission or
referenced in New Mexico's SIP. Below is EPA's evaluation of how the
State addressed the applicable elements of section 110(a)(2) for the
2008 Pb NAAQS. For additional information on our evaluation of the
State's infrastructure SIP submittal, please refer to the Technical
Support Document in the rulemaking docket.

A. Emission Limits and Other Control Measures

    The CAA section 110(a)(2)(A) requires SIPs to include enforceable
emission limits and other control measures, means or techniques,
schedules for compliance and other related matters as needed to
implement, maintain and enforce each of the NAAQS.\16\
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    \16\ The specific nonattainment area plan requirements of
section 110(a)(2)(I) are subject to the timing requirements of
section 172, not the timing requirement of section 110(a)(1). Thus,
section 110(a)(2)(A) does not require that states submit regulations
or emissions limits specifically for attaining the 2008 Pb NAAQS.
Those SIP provisions are due as part of each state's attainment
plan, and will be addressed separately from the requirements of
section 110(a)(2)(A). In the context of an infrastructure SIP, EPA
is not evaluating the existing SIP provisions for this purpose.
Instead, EPA is only evaluating whether the state's SIP has basic
structural provisions for the implementation of the NAAQS.
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    New Mexico's Environmental Improvement Act and Air Quality Control
Act authorize the New Mexico Environment Department (NMED) to regulate
air quality and implement air quality control regulations.
Specifically, the New Mexico Air Quality Control Act delegates
authority to the Environmental Improvement Board (EIB) to adopt,
promulgate, publish, amend and repeal regulations consistent with the
State's Air Quality Control Act to attain and maintain NAAQS and
prevent or abate air pollution (see New Mexico Statutes Annotated
(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. These statutes have been approved into the SIP (see 44 FR
21019, April 9, 1979; revised 49 FR 44101, November 2, 1984; re-
codified and approved in 62 FR 50518, September 26, 1997).
    NMED's air quality rules and standards are codified at Title 20
Environmental Protection, Chapter 2 Air Quality (Statewide) of the
NMAC. Numerous parts of the regulations codified into Chapter 2
necessary for implementing and enforcing the NAAQS have been adopted
into the SIP. These include Part 1 General Provisions (75 FR 48860),
Part 2 Definitions (62 FR 50514), Part 3 Ambient Air Quality Standards
(76 FR 41698), Part 5 Source Surveillance (62 FR 50514), Part 7 Excess
Emissions (74 FR 46910), and Part 8 Emissions Leaving New Mexico (62 FR
50514). Collectively these regulations identify the Air Quality
Bureau's powers and responsibilities, define air quality standards,
authorize monitoring, sampling and testing for emissions, and regulate
interstate transport of emissions originating in New Mexico. The
regulations and standards in Parts 10-61 pertain to emissions of
certain pollutants from specific emission sources, activities and
locales, and last full approval of these regulations into the SIP was
made on September 26, 1997 (62 FR 50514). Permitting requirements,
emissions reporting, and fees are regulated by Parts 72 Construction
Permits (62 FR 50514), Part 73 Notice of Intent and Emissions Inventory
Requirements (75 FR 48860), Part 74 Permits--Prevention of Significant
Deterioration (76 FR 43149), Part 75 Construction Permit Fees (77 FR
18923), Part 79 Permits--Nonattainment Areas (72 FR 50879), and Part 80
Stack Heights (62 FR 50514). EPA's NAAQS, including the 2008 Pb NAAQS,
are adopted by reference into these permitting regulations. Conformity
requirements and transportation-related emissions are regulated under
Part 99 Conformity to the State Implementation Plan of Transportation
Plans, Programs, and Projects (65 FR 14873 and 75 FR 21169).
    Based upon review of the State's infrastructure SIP submission for
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities
and provisions referenced in the submission or referenced in New
Mexico's SIP, EPA believes that the New Mexico SIP adequately addresses
the requirements of section 110(a)(2)(A) for the 2008 Pb NAAQS and is
proposing to approve this element of the September 9, 2011, SIP
submission.

B. Ambient Air Quality Monitoring/Data System

    The CAA section 110(a)(2)(B) requires SIPs to include provisions to
provide for establishment and operation of ambient air quality
monitors, collection and analysis of ambient air quality data, and
making these data available to EPA upon request.
    To address this element, the Air Quality Control Act at Section
NMSA 1978, section 74-2-5 provides the enabling authority necessary for
the New Mexico EIB and NMED to fulfill the requirements of section
110(a)(2)(B). The Air Quality Bureau (AQB) within NMED implements these
requirements. Along with their other duties, the AQB collects air
monitoring data, quality-assures the results, and reports the data.
    Historically, EPA 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 SIPs. For the 2008 Pb NAAQS, EPA
regulations require that ambient monitoring be conducted in every urban
area with National Core (``NCore'') monitoring sites and with
populations equal to or exceeding 500,000 people, and that ``source-
oriented'' monitoring be conducted in the vicinity of any stationary
point sources that emit Pb in amounts exceeding 1,000 pounds per year.
    The New Mexico statewide air quality surveillance network was
approved into the New Mexico SIP by EPA on August 6, 1981 (46 FR
40005). Furthermore, New Mexico's air quality surveillance network
undergoes recurrent annual review by EPA, as required by 40 CFR 58.10.
On July 15, 2013, NMED

submitted its 2013 Annual Air Monitoring Network Plan (AAMNP) that
included ambient monitoring for the 2008 Pb NAAQS, and EPA approved the
2013 AAMNP on February 19, 2014.\17\ In addition, NMED conducts a
recurrent assessment of its monitoring network every five years, which
includes an evaluation of the need to conduct ambient monitoring for
Pb, as required by 40 CFR 58.10(d). The most recent of these 5-year
monitoring network assessments was conducted by NMED and submitted in
June 2010, and was subsequently approved by EPA.\18\ In evaluating the
need to perform ambient monitoring for Pb in its most recent 5-year
monitoring network assessment, NMED concluded that no ambient
monitoring network for Pb was necessary because there are no urban
areas with populations equal to or exceeding 500,000 people within its
area of jurisdiction \19\ and because there are no stationary point
sources anywhere within New Mexico or in close proximity to its borders
that emit Pb in quantities exceeding 1,000 pounds per year. We have
verified through the National Emission Inventory System that no
stationary sources exist within New Mexico that emit Pb in quantities
equal to or exceeding 1,000 pounds per year,\20\ and through review of
the most recently available census data we have confirmed that there
are no metropolitan areas with populations of 500,000 or more people
within NMED's area of jurisdiction. NMED will continue to evaluate the
need to conduct ambient monitoring for Pb every five years when it
performs its recurrent ambient monitoring network assessment.
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    \17\ A copy of the 2013 AAMNP and EPA's approval letter are
included in the docket for this proposed rulemaking.
    \18\ A copy of the 2010 5-year ambient monitoring network
assessment and EPA's approval letter are included in the docket for
this proposed rulemaking.
    \19\ The Albuquerque metropolitan area, centered on the city of
Albuquerque in Bernalillo County, contains more than 500,000 people,
but Bernalillo County is not within the jurisdiction of NMED. The
local air quality district for Albuquerque and Bernalillo County is
responsible for conducting ambient Pb monitoring for the Albuquerque
area.
    \20\ An inventory of stationary sources located in New Mexico
that emit Pb, based on the 2011 triennial NEI, is included in the
Technical Support Document, available in the docket for this
proposed rulemaking.
---------------------------------------------------------------------------

    The AQB makes NMED's ambient monitoring data available for public
review on its Web site.\21\ The NMED Web site provides the monitor
locations and posts past and current concentrations of criteria
pollutants measured in the State's network of monitors.\22\ The NMED
monitors that are not certified as meeting the federal requirements are
identified as ``non-regulatory'' monitors.\23\ The State submits air
monitoring data to EPA on a quarterly basis and certifies the data
annually.
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    \21\ See http://www.nmenv.state.nm.us/aqb/monitor/airmonitoringnetwork.html.
    \22\ See http://air.nmenv.state.nm.us.
    \23\ 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.
---------------------------------------------------------------------------

    Based upon review of the State's infrastructure SIP submission for
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities
and provisions referenced in the submission or referenced in New
Mexico's SIP, EPA believes that the New Mexico SIP meets the
requirements of section 110(a)(2)(B) for the 2008 Pb NAAQS and is
proposing to approve this element of the September 9, 2011 submission.

C. Program for Enforcement of Control Measures (PSD, New Source Review
for Nonattainment Areas, and Construction and Modification of All
Stationary Sources

    The CAA section 110(a)(2)(C) requires states to include the
following three elements in the SIP: (1) A program providing for
enforcement of all SIP measures described in section 110(a)(2)(A); (2)
a program for the regulation of the modification and construction of
stationary sources as necessary to protect the applicable NAAQS (i.e.,
state-wide permitting of minor sources); and (3) a permit program to
meet the major source permitting requirements of the CAA (for areas
designated as attainment or unclassifiable for the NAAQS in
question).\24\
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    \24\ As discussed in further detail below, this infrastructure
SIP rulemaking will not address the New Mexico program for
provisions related to nonattainment areas, since EPA considers
evaluation of these provisions to be outside the scope of
infrastructure SIP actions.
---------------------------------------------------------------------------

1. Enforcement of SIP Measures
    With respect to enforcement of requirements of the SIP, the New
Mexico statutes provide authority for the Environmental Improvement
Board and the NMED to enforce the requirements of the Air Quality
Control Act, and any regulations, permits, or final compliance orders
issued under the provisions of the Act. General 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.
    The Environmental Improvement Act, which has been approved into the
SIP (49 FR 44101; 64 FR 29255), authorizes the creation of the
Environmental Improvement Board (NMSA 1978, section 74-1-4); authorizes
the EIB, the NMED, and its Secretary to file lawsuits, conduct
investigations and enter into remediation agreements, enforce rules,
regulations and orders promulgated by the EIB, and collect civil
penalties (NMSA 1978, section 74-1-6); develop and enforce rules and
standards related to protection of air quality (NMSA 1978, sections 74-
1-7 and 74-1-8); and issue compliance orders and commence civil actions
in response to violations (NMSA 1978, section 74-1-10).
    Likewise, the Air Quality Control Act empowers the EIB and NMED to
institute legal proceedings to compel compliance with the Air Quality
Control Act and any regulations of the EIB or local air quality control
agencies (NMSA 1978, section 74-2-5.1); issue compliance orders,
commence civil actions, and issue field citations (NMSA1978, section
74-2-12); assess civil penalties for violations of the Act or
regulations promulgated under it or permits issued (NMSA 1978, section
74-2-12.1); conduct inspections of regulated entities (NMSA 1978,
section 74-2-13); and pursue criminal prosecutions (NMSA 1978, section
74-2-14). Additional enforcement authorities and funding mechanisms are
provided by the Act at NMSA 1978, section 74-2-15. These sections of
the Air Quality Control Act were adopted into the SIP on November 2,
1984 (49 FR 44101).
    NMED air quality standards and regulations containing specific
enforcement provisions and adopted into the SIP include: 20.2.7 NMAC
Excess Emissions (74 FR 46910) and 20.2.72 NMAC Construction Permits
(38 FR 12702 and 62 FR 50514).
2. Minor New Source Review
    Section 110(a)(2)(C) also requires that the SIP include measures to
regulate construction and modification of stationary sources to protect
the NAAQS. With respect to smaller statewide minor sources Section
110(a)(2)(C) creates ``a general duty on states to include a program in
their SIP that regulates the modification and construction of any
stationary source as

necessary to assure that the NAAQS are achieved'' (70 FR 71612 and
71677). EPA provides states with discretion in implementing their Minor
NSR programs (71 FR 48696 and 48700). The ``considerably less
detailed'' regulations for Minor NSR are provided in 40 CFR 51.160
through 51.164. EPA has determined that New Mexico's Minor NSR program
adopted pursuant to section 110(a)(2)(C) of the Act regulates emissions
of all regulated air contaminants for which there is a NAAQS (see
<IP_ADDRESS> NMAC). New Mexico's Minor NSR permitting requirements are
found at 20.2.72 NMAC--Construction Permits and were approved into the
SIP on May 14, 1973 (38 FR 12702), with revisions approved on September
26, 1997 (62 FR 50514), June 13, 2012 (77 FR 35273), and March 11, 2013
(78 FR 15296).
    In this action, EPA is proposing to approve New Mexico's
infrastructure SIP for the 2008 Pb standard with respect to the general
requirement in section 110(a)(2)(C) to include a program in the SIP
that regulates the modification and construction of any stationary
source as necessary to assure that the NAAQS are achieved. However, EPA
is not proposing to approve or disapprove New Mexico's existing Minor
NSR program to the extent that it may be inconsistent with EPA's
regulations governing this program. EPA has maintained that the CAA
does not require that new infrastructure SIP submissions correct any
defects in existing EPA-approved provisions of minor NSR programs in
order for EPA to approve the infrastructure SIP for element C (e.g., 76
FR 41076-41079). EPA believes that a number of states may have Minor
NSR provisions that are contrary to the existing EPA regulations for
this program. 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.
3. Prevention of Significant Deterioration (PSD) Permit Program
    New Mexico also has a program approved by EPA as meeting the
requirements of part C, relating to prevention of significant
deterioration of air quality. In order to demonstrate that New Mexico
has met this sub-element, this PSD program must cover requirements not
just for the 2008 Pb NAAQS, but for all other regulated NSR pollutants
as well.
    PSD programs apply in areas that are meeting the NAAQS, referred to
as areas in attainment, and in areas for which there is insufficient
information to designate as either attainment or nonattainment,
referred to as unclassifiable areas. New Mexico's PSD program was
conditionally approved into the SIP on February 27, 1987 (52 FR 5964)
and fully approved on August 15, 2011 (76 FR 41698). Revisions to New
Mexico's PSD program were approved into the SIP on August 21, 1990 (55
FR 34013), May 2, 1991 (56 FR 20137), October 15, 1996 (61 FR 53639),
March 10, 2003 (68 FR 11316), December 24, 2003 (68 FR 74483),
September 5, 2007 (72 FR 50879), November 26, 2010 (75 FR 72688) 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
PM2.5, respectively. EPA approved the portions of the June
11, 2009 submittal associated with implementing NOX as a
precursor (75 FR 72688) as necessary to implement the 1997 ozone
standard. EPA approved the May 23, 2011, revision in a Federal Register
notice signed January 22, 2013, as these elements are necessary for
implementation of the PM2.5 standard (78 FR 4339).
    The 2008 Pb NAAQs are substantially lower than the previous Pb
NAAQs, and this may require EPA to revise the PSD applicability
thresholds in the future, with regard to Pb emissions. However, at this
time EPA has not proposed to amend the PSD regulations with regard to
the 2008 Pb NAAQS. We do, however, recognize that certain provisions of
these regulations still may need to be evaluated and potentially
revised in light of the revised Pb standard, particularly with regards
to applicability thresholds for increases in emissions resulting from
the construction of new sources or modifications to existing sources.
    With respect to the infrastructure elements contained in section
110(a)(2)(C) and (J), EPA interprets the Clean Air Act to require each
state to make an infrastructure SIP submission for a new or revised
NAAQS that demonstrates that the air agency has a complete PSD
permitting program meeting the current requirements for all regulated
NSR pollutants. The requirements of section 110(a)(2)(D)(i)(II) may
also be satisfied by demonstrating the air agency has a complete PSD
permitting program correctly addressing all regulated NSR pollutants.
New Mexico has shown that it currently has a PSD program in place that
covers all regulated NSR pollutants, including greenhouse gases (GHGs).
    On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of PSD permitting requirements to GHG
emissions. (see Utility Air Regulatory Group v. Environmental
Protection Agency, 134 S.Ct. 2427) The Supreme Court said that the EPA
may not treat GHGs as an air pollutant for purposes of determining
whether a source is a major source required to obtain a PSD permit. The
Court also said that the EPA could continue to require that PSD
permits, otherwise required based on emissions of pollutants other than
GHGs, contain limitations on GHG emissions based on the application of
Best Available Control Technology (BACT). In order to act consistently
with its understanding of the Court's decision pending further judicial
action to effectuate the decision, the EPA is not continuing to apply
EPA regulations that would require that SIPs include permitting
requirements that the Supreme Court found impermissible. Specifically,
EPA is not applying the requirement that a state's SIP-approved PSD
program require that sources obtain PSD permits when GHGs are the only
pollutant (i) that the source emits or has the potential to emit above
the major source thresholds, or (ii) for which there is a significant
emissions increase and a significant net emissions increase from a
modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to
revise federal PSD rules in light of the Supreme Court opinion. In
addition, EPA anticipates that many states will revise their existing
SIP-approved PSD programs in light of the Supreme Court's decision. The
timing and content of subsequent EPA actions with respect to the EPA
regulations and state PSD program approvals are expected to be informed
by additional legal process before the United States Court of Appeals
for the District of Columbia Circuit. At this juncture, EPA is not
expecting states to have revised their PSD programs for purposes of
infrastructure SIP submissions and is only evaluating such submissions
to assure that the state's program correctly addresses GHGs consistent
with the Supreme Court's decision.
    EPA has previously approved New Mexico SIP revisions submitted to
align

the State's PSD program rules for GHGs with federal requirements (76 FR
43149). At present, EPA has determined the New Mexico SIP is sufficient
to satisfy the infrastructure elements of sections 110(a)(2)(C),
(D)(i)(II), and (J) with respect to GHGs because the PSD permitting
program previously approved by EPA into the SIP continues to require
that PSD permits (otherwise required based on emissions of pollutants
other than GHGs) contain limitations on GHG emissions based on the
application of BACT. Although the approved New Mexico PSD permitting
program may currently contain provisions that are no longer necessary
in light of the Supreme Court decision, this does not render the
infrastructure SIP submission inadequate to satisfy the infrastructure
elements of sections 110(a)(2)(C), (D)(i)(II), and (J). The SIP
contains the necessary PSD requirements at this time, and the
application of those requirements is not impeded by the presence of
other previously-approved provisions regarding the permitting of
sources of GHGs that EPA does not consider necessary at this time in
light of the Supreme Court decision. Accordingly, the Supreme Court
decision does not affect EPA's proposed approval of New Mexico's
infrastructure SIP as to the requirements of the infrastructure
elements of sections 110(a)(2)(C), (D)(i)(II), and (J).
    Based upon review of the State's infrastructure SIP submission for
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities
and provisions referenced in the submission or referenced in New
Mexico's SIP, with respect to the requirements of section 110(a)(2)(C)
for the 2008 Pb NAAQS, EPA is proposing to approve this element of the
September 9, 2011, submission.

D. Interstate and International Transport

    The CAA section 110(a)(2)(D)(i) includes four requirements referred
to as prongs 1 through 4. Prongs 1 and 2 are provided at section
110(a)(2)(D)(i)(I), and prongs 3 and 4 are provided at section
110(a)(2)(D)(i)(II). Section 110(a)(2)(D)(i)(I) requires SIPs to
include adequate provisions prohibiting any source or other type of
emissions activity in one state from contributing significantly to
nonattainment, or interfering with maintenance, of any NAAQS in another
state. Section 110(a)(2)(D)(i)(II) requires SIPs to include adequate
provisions prohibiting any source or other type of emissions activity
in one state from interfering with measures required of any other state
to prevent significant deterioration of air quality or to protect
visibility.
    With respect to prongs 1 and 2, the physical properties of Pb,
which is very dense, prevent Pb emissions from experiencing a
significant degree of travel in the ambient air. No complex chemistry
is needed to form Pb or Pb compounds in the ambient air; therefore,
ambient concentrations of Pb are typically highest near Pb sources.
More specifically, there is a sharp decrease in ambient Pb
concentrations as the distance from the source increases. According to
EPA's report entitled Our Nation's Air: Status and Trends Through 2010,
Pb concentrations that are not near a source of Pb are approximately 8
times less than the typical concentrations near the source.\25\ For
these reasons, EPA believes that the requirements of prongs 1 and 2 can
be satisfied through a state's assessment as to whether a lead source
located within its state in close proximity to a state border has
emissions that contribute significantly to the nonattainment in or
interfere with maintenance of the NAAQS in the neighboring state.
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    \25\ http://www.epa.gov/airtrends/2011/report/fullreport.pdf
---------------------------------------------------------------------------

    There are no areas within the State of New Mexico that are
designated as nonattainment with respect to the 2008 Pb NAAQS, and
there are no significant sources of Pb emissions within the State that
emit Pb in amounts equal to or exceeding 0.5 tons per year, and no
sources of Pb emissions within two miles of a neighboring state line.
Total Pb emissions within New Mexico (including Albuquerque/Bernalillo
County, which is outside NMED's jurisdiction) in 2011 were less than
two tons, and most of the Pb-emitting sources within the State are
general aviation airports where aviation gasoline containing tetra-
ethyl lead is still in use. Therefore, we deem that New Mexico has
presumptively satisfied the requirements of prongs 1 and 2.
    With respect to the PSD requirements of section
110(a)(2)(D)(i)(II)--prong 3, we note that New Mexico's satisfaction of
the applicable infrastructure SIP PSD requirements for attainment/
unclassifiable areas with regards to the 2008 Pb NAAQS have been
detailed in the section addressing section 110(a)(2)(C). For sources
not subject to PSD for any one of the pollutants subject to regulation
under the CAA because they are in a nonattainment area for a NAAQS, New
Mexico has adopted the nonattainment new source review (NNSR)
provisions required for the 2008 Pb NAAQS and other NAAQS at 20.2.79
NMAC--Permits--Nonattainment Areas.
    With regard to the applicable requirements for visibility
protection of section 110(a)(2)(D)(i)(II)--prong 4, significant impacts
from Pb emissions from stationary sources are expected to be limited to
short distances from the source and most, if not all, stationary
sources of Pb emissions are located at sufficient distances from Class
I areas such that visibility impacts would be negligible. Although Pb
can be a component of coarse and fine particles, Pb generally comprises
only a small fraction of coarse and fine particles. A recent agency
study conducted to evaluate the extent that Pb could impact visibility
concluded that Pb-related visibility impacts at Class I areas were
found to be insignificant (e.g., less than 0.10%).\26\
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    \26\ Analysis by Mark Schmidt, OAQPS, ``Ambient Pb's
Contribution to Class I Area Visibility Impairment,'' June 17, 2011.
---------------------------------------------------------------------------

    Section 110(a)(2)(D)(ii) also requires that the SIP ensure
compliance with the applicable requirements of sections 126 and 115 of
the CAA, relating to interstate and international pollution abatement,
respectively. Section 126(a) of the CAA requires new or modified
sources to notify neighboring states of potential impacts from sources
within the State. New Mexico regulations require that affected states
receive notice prior to the commencement of any construction or
significant modification of a major source. New Mexico's rule
concerning PSD construction permits at 20.2.74 NMAC--Permits--
Prevention of Significant Deterioration requires that the review of all
PSD permit applications follows the procedures of <IP_ADDRESS>0 NMAC--
Public Participation and Notification and <IP_ADDRESS>3 NMAC--Additional
Requirements for Sources Impacting Class I Federal Areas, which require
the permitting authority to provide neighboring states, tribal
authorities, and Federal Land Managers of affected Class I Areas with
copies of PSD permit applications received by the department and to
issue a preliminary determination for public comment, with notification
to affected states, tribal authorities, and Federal Land Managers of
affected Class I Areas on or before the time notice is provided to the
public. In addition, no source or sources located in New Mexico have
been identified by EPA as having any interstate impacts under section
126 in any pending actions relating to any air pollutant.
    Section 115 of the CAA authorizes EPA to require a state to revise
its SIP

under certain conditions to alleviate international transport into
another country. There are no final findings under section 115 of the
CAA against New Mexico with respect to any air pollutant. Thus, the
State's SIP does not need to include any provisions to meet the
requirements of section 115.
    Based upon review of the State's infrastructure SIP submission for
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities
and provisions referenced in the submission or referenced in New
Mexico's SIP, EPA believes that New Mexico has the adequate
infrastructure needed to address sections 110(a)(2)(D)(i)(I) and (II)--
prongs 1 through 4, and 110(a)(2)(D)(ii) for the 2008 Pb NAAQS and is
proposing to approve this element of the September 9, 2011, submission.

E. Adequate Authority, Resources, Implementation, and Oversight

    The CAA section 110(a)(2)(E) requires that SIPs provide for the
following: (1) Necessary assurances that the state (and other entities
within the state responsible for implementing the SIP) will have
adequate personnel, funding, and authority under state or local law to
implement the SIP, and that there are no legal impediments to such
implementation; (2) requirements that the state comply with the
requirements relating to state boards, pursuant to section 128 of the
CAA; and (3) necessary assurances that the state has responsibility for
ensuring adequate implementation of any plan provision for which it
relies on local governments or other entities to carry out that portion
of the plan.
    Section 110(a)(2)(E)(i) requires states to establish that they have
adequate personnel, funding and authority to implement the NAAQS. With
respect to adequacy of authority, we have previously discussed New
Mexico's statutory and regulatory authority to implement the 2008 Pb
NAAQS, primarily in the discussion of section 110(a)(2)(A) above.
    With respect to adequacy of resources, NMED asserts that it has
adequate personnel to implement the SIP. The infrastructure SIP
submission for the 2008 Pb NAAQS describes the regulations governing
the various functions of personnel within the Air Quality Bureau,
including the administrative, technical support, planning, enforcement,
and permitting functions of the program.
    With respect to funding, the Air Quality Control Act at NMSA 1978,
section 74-2-7 requires NMED to establish an emissions fee schedule for
sources in order to fund the reasonable costs of administering various
air pollution control programs and also authorizes NMED to collect
additional fees necessary to cover reasonable costs associated with
processing of air permit applications. The Air Quality Control Act
provides for the deposit of the fees into various subaccounts (e.g.,
the State's air quality permit fund for the Title V operating permit
program used for Title V implementation activities; and various
subaccounts for local air quality agencies). NMED also receives funding
from general revenue funds and EPA grants under, for example, sections
103 and 105 of the CAA, to finance air quality programs. EPA conducts
periodic program reviews to ensure that the State has adequate
resources and funding to, among other things, implement the SIP.
    With respect to authority, the Air Quality Control Act at NMSA
1978, section 74-2-5 provides the authority necessary to carry out the
SIP requirements as referenced above in element A. The Air Quality
Control Act provides the NMED with broad legal authority to adopt
emission standards and compliance schedules applicable to regulated
entities, and to adopt emission standards and limitations and any other
measures necessary for attainment and maintenance of national
standards. The Act also provides the board adequate legal authority to
enforce applicable laws, regulations, standards, and compliance
schedules, and seek injunctive relief. In addition, section 74-2-5.1 of
the Act provides the department legal authority to enforce applicable
laws, regulations, standards, and compliance schedules.
    With regard to the conflict of interest provisions of section 128
of the CAA, section 110(a)(2)(E)(ii) requires that each state SIP meet
the requirements of section 128, relating to representation on state
boards and conflicts of interest by members of such boards. Section
128(a)(1) requires that any board or body which approves permits or
enforcement orders under the CAA must have at least a majority of
members who represent the public interest and do not derive any
``significant portion'' of their income from persons subject to permits
and enforcement orders under the CAA. Section 128(a)(2) requires that
members of such a board or body, or the head of an agency with similar
powers, adequately disclose any potential conflicts of interest.
    The Environmental Improvement Act at NMSA 1978, section 74-1-4
provides that the Environmental Improvement Board contain at least a
majority of members who represent the public interest and do not derive
any significant portion of their income from persons subject to or who
appear before the board on issues related to the Clean Air Act or Air
Quality Control Act. Furthermore, pursuant to State regulations adopted
by the Board, Board members are required to recuse themselves from
rule-makings in which their impartiality may reasonably be questioned.
(see <IP_ADDRESS> NMAC).
    With respect to assurances that the State has responsibility to
implement the SIP adequately when it authorizes local or other agencies
to carry out portions of the plan, the Environmental Improvement Act
and the Air Quality Control Act designate the NMED as the primary air
pollution control agency ``for all purposes'' of implementing the
requirements of the federal Clean Air Act and the New Mexico Air
Quality Control Act.
    There is one local air quality control agency that assumes
jurisdiction for local administration and enforcement of the Air
Quality Control Act in New Mexico, the Albuquerque/Bernalillo County
Air Quality Control Board, as authorized by NMSA 1978, section 74-2-4.
Pursuant to the New Mexico Air Quality Control Act, the local air
quality control agency, within the boundaries of the Albuquerque/
Bernalillo County area, is delegated all those functions delegated to
the Environmental Improvement Board, with the exception of any
functions reserved exclusively for the Environmental Improvement Board,
NMSA 1978, section 74-2-4(A)(1). Further, The Air Quality Control Act,
grants the local air quality control agency, within the boundaries of
the Albuquerque/Bernalillo County area, the authority to perform all
the duties required of NMED and exert all of the powers granted to
NMED, except for those powers and duties reserved exclusively for the
department, NMSA 1978, section 74-2-4(A)(2). However, the NMED and the
State Environmental Improvement Board retain oversight authority in the
event the local authority fails to act. EPA conducts reviews of the
local program activities in conjunction with its oversight of the State
program.
    Based upon review of the State's infrastructure SIP submission for
the 2008 Pb NAAQS and relevant statutory and regulatory authorities and
provisions referenced in the submission or referenced in New Mexico's
SIP, EPA believes that New Mexico has the adequate infrastructure
needed to address section 110(a)(2)(E) for the 2008 Pb NAAQS and is
proposing to approve this element of the September 9, 2011 submission.

F. Stationary Source Monitoring System

    The CAA section 110(a)(2)(F) requires states to establish a system
to monitor emissions from stationary sources and to submit periodic
emission reports. Each SIP shall require the installation, maintenance,
and replacement of equipment, and the implementation of other necessary
steps, by owners or operators of stationary sources, to monitor
emissions from such sources. The SIP shall also require periodic
reports on the nature and amounts of emissions and emissions-related
data from such sources, and requires that the state correlate the
source reports with emission limitations or standards established under
the CAA. These reports must be made available for public inspection at
reasonable times.
    To address this element, the Air Quality Control Act at NMSA 1978,
section 4-2-5 authorizes the NMED to require persons engaged in
operations which result in air pollution to monitor or test emissions
and to file reports containing information relating to the nature and
amount of emissions. State regulations pertaining to sampling and
testing are codified at 20.2.72 NMAC Construction Permits, 20.2.70 NMAC
Operating Permits, and 20.2.79 NMAC Permits--Nonattainment Areas, and
requirements for reporting of emissions inventories are codified at
20.2.73 NMAC Notice of Intent and Emission Inventory Requirements. In
addition, rules at 20.2.5 NMAC Source Surveillance, establish general
requirements for maintaining records and reporting emissions.
    The NMED uses this information, in addition to information obtained
from other sources, to track progress towards maintaining the NAAQS,
developing control and maintenance strategies, identifying sources and
general emission levels, and determining compliance with emission
regulations and additional EPA requirements. NMED makes this
information available to the public (20.2.5 NMAC Source Surveillance).
Provisions concerning the handling of confidential data and proprietary
business information are included in the general provisions regulations
at <IP_ADDRESS> NMAC, Confidential Business Information. These rules
specifically exclude from confidential treatment any records concerning
the nature and amount of emissions reported by sources.
    Based upon review of the State's infrastructure SIP submission for
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities
and provisions referenced in the submission or referenced in New
Mexico's SIP, EPA believes that New Mexico has the adequate
infrastructure needed to address CAA section 110(a)(2)(F) for the 2008
Pb NAAQS and is proposing to approve this element of the September 9,
2011, submission.

G. Emergency Authority

    The CAA section 110(a)(2)(G) requires SIPs to provide for authority
to address activities causing imminent and substantial endangerment to
public health or welfare or the environment (comparable to the
authorities provided in section 303 of the CAA), and to include
contingency plans to implement such authorities as necessary.
    In its submittal for the 2008 Pb NAAQS, the State of New Mexico
emphasizes that there are currently no significant sources of Pb
emissions within the State or in close enough proximity to the State
borders that would have the potential to impact communities in New
Mexico. Nevertheless, the State indicates that the Air Quality Control
Act provides adequate authority to constrain any sources of Pb
emissions, as necessary, in the unlikely event that an emergency
situation should arise. Under the Air Quality Control Act at NMSA 1978,
section 74-2-10, Emergency Powers of the Secretary and the Director,
the Secretary and Director of NMED are empowered to bring suit to
immediately restrain a facility causing emissions that present an
imminent and substantial endangerment to public health, welfare, or the
environment. Alternatively, the Air Quality Control Act authorizes the
NMED Secretary and Director to issue orders necessary to protect the
public health or welfare, or the environment, and then bring suit
against contributing sources within 24 hours. If the NMED brings an
action within that time, the order is effective for another 48 hours or
for such longer period as may be authorized by the court pending
litigation.
    Based upon review of the State's infrastructure SIP submission for
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities
and provisions referenced in that submission or referenced in New
Mexico's SIP, EPA believes that the New Mexico SIP adequately addresses
section 110(a)(2)(G) for the 2008 Pb NAAQS and is proposing to approve
this element of the September 9, 2011, submission.

H. Future SIP Revisions

    The CAA section 110(a)(2)(H) requires states to have the authority
to revise their SIPs in response to changes in the NAAQS, availability
of improved methods for attaining the NAAQS, or in response to an EPA
finding that the SIP is substantially inadequate to attain the NAAQS.
    New Mexico's Environmental Improvement Act and Air Quality Control
Act authorize the NMED as the primary agency in the State concerned
with environmental protection and enforcement of regulations, including
but not limited to air quality (see NMSA 1978, sections 74-1 and 74-2).
The Air Quality Control Act gives the NMED the authority to ``develop
and present to the Environmental Improvement Board a plan for the
control, regulation, prevention or abatement of air pollution . . . ,''
and authorizes the EIB to adopt such a plan (see NMSA 1978, sections
74-2-5.1(H) and 74-2-5(B)(2)). The Environmental Improvement Act also
authorizes the New Mexico EIB to ``adopt, promulgate, publish, amend
and repeal regulations consistent with the Air Quality Control Act to
attain and maintain the national ambient air quality standards and
prevent and abate air pollution . . .'' and the Environmental
Improvement Act authorizes the NMED to enforce such rules, regulations
and orders promulgated by the EIB (see NMSA 1978, sections 74-2-5(B)(1)
and 74-1-6(F)). Furthermore, the Air Quality Control Act requires the
NMED to, ``. . . advise, consult, contract with and cooperate with
local authorities, other states, the federal government and other
interested persons or groups in regard to matters of common interest in
the field of air quality control . . .'' (see NMSA 1978, section 74-2-
5.2(B)).
    Thus, New Mexico has the authority to revise its SIP, as necessary,
to account for revisions of the NAAQS, to adopt more effective methods
of attaining the NAAQS, and to respond to EPA SIP calls. Based upon
review of the State's infrastructure SIP submission for the 2008 Pb
NAAQS, and relevant statutory and regulatory authorities and provisions
referenced in the submission or referenced in New Mexico's SIP, EPA
believes that New Mexico has adequate authority to address section
110(a)(2)(H) for the 2008 Pb NAAQS and is proposing to approve this
element of the September 9, 2011, submission.

I. Nonattainment Areas

    The CAA section 110(a)(2)(I) requires that in the case of a plan or
plan revision for areas designated as nonattainment areas, states must
meet applicable requirements of part D of the CAA, relating to SIP
requirements for designated nonattainment areas.
    As noted earlier, EPA does not expect infrastructure SIP
submissions to

address subsection (I). The specific SIP submissions for designated
nonattainment areas, as required under CAA title I, part D, are subject
to different submission schedules than those for section 110
infrastructure elements. Instead, EPA will take action on part D
attainment plan SIP submissions through a separate rulemaking process
governed by the requirements for nonattainment areas, as described in
part D.

J. Consultation With Government Officials, Public Notification, PSD and
Visibility Protection

    The CAA section 110(a)(2)(J) requires SIPs to meet the applicable
requirements of the following CAA provisions: (1) Section 121, relating
to interagency consultation regarding certain CAA requirements; (2)
section 127, relating to public notification of NAAQS exceedances and
related issues; and (3) part C of the CAA, relating to prevention of
significant deterioration of air quality and visibility protection.
    (1) With respect to interagency consultation, the SIP should
provide a process for consultation with general-purpose local
governments, designated organizations of elected officials of local
governments, and any Federal Land Manager having authority over Federal
land to which the SIP applies. New Mexico's Air Quality Control Act
provides that ``no regulations or emission control requirement shall be
adopted until after a public hearing by the environmental improvement
board or the local board'' and that, ``at the hearing, the
environmental improvement board or the local board shall allow all
interested persons reasonable opportunity to submit data, views, or
arguments orally or in writing and to examine witnesses testifying at
the hearing'' (see NMSA 1978, sections 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, section 74-2-5.2(B)).
Furthermore, New Mexico's PSD rules at <IP_ADDRESS>0 NMAC mandate that
the NMED shall provide for public participation and notification
regarding permitting applications to any other state or local air
pollution control agencies, local government officials of the city or
county where the source will be located, tribal authorities, and
Federal Land Managers (FLMs) whose lands may be affected by emissions
from the source or modification. Additionally, the State's PSD rules at
<IP_ADDRESS>3 NMAC require the NMED to consult with FLMs regarding permit
applications for sources with the potential to impact Class I Federal
Areas (75 FR 72688 and 72 FR 50879). Finally, the State of New Mexico
has committed in the SIP to consult continually with the FLMs on the
review and implementation of the visibility program, and the State
recognizes the expertise of the FLMs in monitoring and new source
review applicability analyses for visibility and has agreed to notify
the FMLs of any advance notification or early consultation with a major
new or modifying source prior to the submission of the permit
application (71 FR 4490). The State's Transportation Conformity rules
at <IP_ADDRESS> through <IP_ADDRESS> NMAC provide procedures for
interagency consultation, resolution of conflicts, and public
notification (65 FR 14873 and 75 FR 21169).
    (2) With respect to the requirements for public notification in
section 127, the infrastructure SIP should provide citations to
regulations in the SIP requiring the air agency to regularly notify the
public of instances or areas in which any NAAQS are exceeded; advise
the public of the health hazard associated with such exceedances; and
enhance public awareness of measures that can prevent such exceedances
and of ways in which the public can participate in the regulatory and
other efforts to improve air quality. Provisions regarding public
notification of instances or areas in which any primary NAAQS was
exceeded were approved into the New Mexico SIP on August 24, 1983 (48
FR 38466). In addition, as discussed for infrastructure element B
above, the NMED air monitoring Web site provides live air quality data
for each of the monitoring stations in New Mexico.\27\ The Web site
also provides information on the health effects of ozone, particulate
matter, and other criteria pollutants. Because no significant sources
of Pb emissions are located within the State or in proximity to its
borders, we do not anticipate that any circumstances of short-term
exceedances or violations of the 2008 Pb NAAQS will occur in New
Mexico.
---------------------------------------------------------------------------

    \27\ See http://www.nmenv.state.nm.us/aqb/monitor/airmonitoringnetwork.html.
---------------------------------------------------------------------------

    (3) Regarding the applicable requirements of part C of the CAA,
relating to prevention of significant deterioration of air quality and
visibility protection, as noted above under infrastructure element C,
the New Mexico SIP meets the PSD requirements. With respect to the
visibility component of section 110(a)(2)(J), EPA recognizes that
states are subject to visibility and regional haze program requirements
under part C of the CAA, which includes sections 169A and 169B.
However, when EPA establishes or revises a NAAQS, these visibility and
regional haze requirements under part C do not change. Therefore, EPA
believes that there are no new visibility protection requirements under
part C as a result of a revised NAAQS, and consequently there are no
newly applicable visibility protection obligations pursuant to
infrastructure element J after the promulgation of a new or revised
NAAQS.
    Based upon review of the State's infrastructure SIP submission for
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities
and provisions referenced in the submission or referenced in New
Mexico's SIP, EPA believes that New Mexico has met the applicable
requirements of section 110(a)(2)(J) for the 2008 Pb NAAQS in the State
and is therefore proposing to approve this element of the September 9,
2011, submission.

K. Air Quality and Modeling/Data

    The CAA section 110(a)(2)(K) requires that SIPs provide for
performing air quality modeling, as prescribed by EPA, to predict the
effects on ambient air quality of any emissions of any NAAQS pollutant,
and for submission of such data to EPA upon request.
    The NMED has the power and duty, under the Air Quality Control Act
to ``develop facts and make investigations and studies,'' thereby
providing for the functions of environmental air quality assessment
(see NMSA 1978, section 74-2-5). Past modeling and emissions reductions
measures have been submitted by the State and approved into the SIP.
For example, the air modeling and control measures submitted within the
attainment demonstration for the San Juan County Early Action Compact
Area, approved by EPA and adopted into the SIP on August 17, 2005 (70
FR 48285). Additionally, New Mexico has the ability to perform modeling
for the primary and secondary PM2.5 standards and other
criteria pollutant NAAQS on a case-by-case permit basis consistent with
their SIP-approved PSD rules and with EPA protocols on Air Quality
Models at 40 CFR part 51, Appendix W.
    This section of the CAA also requires that a SIP provide for the
submission of data related to such air quality modeling to the EPA upon
request. The New Mexico Air Quality Control Act authorizes and requires
NMED to

cooperate with the federal government and local authorities in regard
to matters of common interest in the field of air quality control,
thereby allowing the agency to make such submissions to the EPA (see
NMSA 1978, section 74-2-5.2(B)).
    Based upon review of the State's infrastructure SIP submission for
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities
and provisions referenced in the submission or referenced in New
Mexico's SIP, EPA believes that New Mexico has the adequate
infrastructure needed to address section 110(a)(2)(K) for the 2008 Pb
NAAQS and is proposing to approve this element of the September 9,
2011, submission.

L. Permitting Fees

    The CAA section 110(a)(2)(L) requires SIPs to require each major
stationary source to pay permitting fees to the permitting authority,
as a condition of any permit required under the CAA, to cover the cost
of reviewing and acting upon any application for such a permit, and, if
the permit is issued, the costs of implementing and enforcing the terms
of the permit. The fee requirement applies until a fee program
established by the state pursuant to Title V of the CAA, relating to
operating permits, is approved by EPA.
    The Air Quality Control Act provides the EIB with the legal
authority for establishing an emission fee schedule and a construction
permit fee schedule to recover the reasonable costs of acting on permit
applications, implementing, and enforcing permits.\28\ New Mexico's fee
schedule for construction permits is codified at 20.2.75 NMAC,
Construction Permit Fees. These regulations implement a fee schedule
for all preconstruction air permits issued by NMED and were approved by
EPA into the SIP on September 16, 1991 (56 FR 32511) and November 25,
1997 (62 FR 50514).
---------------------------------------------------------------------------

    \28\ See Environmental Improvement Act, Paragraph 4 of
Subsection A of Section 74-1-8 NMSA 1978, and Air Quality Control
Act, Chapter 74, Article 2 NMSA 1978, including specifically,
Paragraph 6 of Subsection B of Section 74-2-7 NMSA 1978.
---------------------------------------------------------------------------

    In addition to preconstruction fees, New Mexico also requires major
sources subject to the federal Title V operating permit program to pay
annual operating permit fees. This operating permit fee schedule is
codified at 20.2.71 NMAC, Operating Permit Emission Fees. Title V
operating permit programs and associated fees legally are not part of
the SIP, but were approved by EPA on November 26, 1996 (61 FR 60032) as
part of the New Mexico Title V Program (see 40 CFR part 70, Appendix
A).\29\ EPA reviews the New Mexico Title V program, including Title V
fee structure, separately from this proposed action. Because the Title
V program and associated fees legally are not part of the SIP, the
infrastructure SIP action we are proposing today does not preclude EPA
from taking future action regarding New Mexico's Title V permitting
program and associated fees.
---------------------------------------------------------------------------

    \29\ As indicated in New Mexico's 2008 Pb infrastructure SIP
submission, NEMD's operating permit fees regulation was
inadvertently adopted into the SIP by EPA on November 25, 1997 (62
FR 50514). This regulation was removed from the SIP by EPA in a
subsequent action on July 15, 2011 (76 FR 41698).
---------------------------------------------------------------------------

    Based upon review of the State's infrastructure SIP submission for
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities
and provisions referenced in the submission or referenced in New
Mexico's SIP, EPA believes that the requirements of section
110(a)(2)(L) are met and is proposing to approve this element of the
September 9, 2011, submission.

M. Consultation/Participation by Affected Local Entities

    The CAA section 110(a)(2)(M) requires SIPs to provide for
consultation and participation by local political subdivisions affected
by the SIP.
    As described under the section addressing the requirements of
element 110(a)(2)(J) above, regarding consultation with government
officials and public notification, New Mexico's Air Quality Control Act
provides that, ``no regulations or emission control requirement shall
be adopted until after a public hearing by the environmental
improvement board or the local board'' and provides that, ``at the
hearing, the environmental improvement board or the local board shall
allow all interested persons reasonable opportunity to submit data,
views, or arguments orally or in writing and to examine witnesses
testifying at the hearing'' (see NMSA 1978, section 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,
section 74-2-5.2(B)). The Act also requires initiation of cooperative
action between local authorities and the NMED, between one local
authority and another, or among any combination of local authorities
and the NMED for control of air pollution in areas having related air
pollution problems that overlap the boundaries of political
subdivisions; and entering into agreements and compacts with adjoining
states and Indian tribes, where appropriate. NMED has a long history of
successful cooperation with the local air quality authority in
Albuquerque/Bernalillo County and tribal governments.
    With regard to permitting actions, New Mexico's PSD regulations at
<IP_ADDRESS>0 NMAC, approved into the SIP on March 30, 1987 (52 FR 5964)
and December 16, 1996 (61 FR 53642), mandate that the NMED shall
provide for public participation and notification regarding permitting
applications to any other state or local air pollution control
agencies, local government officials of the city or county where the
source will be located, and Federal Land Managers whose lands may be
affected by emissions from the source or modification. New Mexico's
Transportation Conformity regulations at <IP_ADDRESS> and <IP_ADDRESS>
NMAC, both approved into the SIP on April 23, 2010 (75 FR 21169),
require that interagency consultation and opportunity for public
involvement be provided before making transportation conformity
determinations and before adopting applicable SIP revisions on
transportation-related SIPs.
    Based upon review of the State's infrastructure SIP submission for
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities
and provisions referenced in the submission or referenced in New
Mexico's SIP, EPA believes that New Mexico has the adequate
infrastructure needed to address section 110(a)(2)(M) for the 2008 Pb
NAAQS and is proposing to approve this element of the September 9, 2011
submission.

V. EPA's Evaluation of New Mexico's SIP Revision Repealing the Cement
Kilns Rule

A. What is EPA's evaluation of the submittal?

    As a part of NMED's initiative to enhance and stream line its
permitting process a State report entitled ``Improving Environmental
Permitting'' recommended repeal of NMAC 20.2.12--Cement Kilns. There
are no cement kilns in NMED's jurisdictional area. There is a cement
plant in New Mexico, but that plant is located in Bernalillo County,
New Mexico which is not within NMED's area of jurisdiction. The current
EPA-approved NMAC 20.2.12--Cement Kilns rule only regulates PM
emissions from a kiln measured in terms of mass per volume

of exhaust gas (230 mg/m3). See section 108 of the repealed rule in the
Technical Support Document (<IP_ADDRESS> NMAC). Demonstrating compliance
with this emission limit is less practical than demonstrating
compliance with the comparable New Source Performance Standard (NSPS)
because it is not clinker-production based, and it also lacks utility
because no such source exists in NMED's area of jurisdiction. In other
words, the current EPA-approved NMAC 20.2.12--Cement Kilns rule is
outdated in format and superfluous.
    Should a cement kiln locate within NMED's jurisdiction in the
future, that source will be subject to new source review and New Source
Performance Standard (NSPS) requirements. See 40 CFR 60, Subpart F. In
addition, hazardous air pollutants from a cement kiln would be subject
to National Emission Standards for Hazardous Air Pollutants (NESHAP),
contained in 40 CFR 61; and Maximum Achievable Control Technology
(MACT) standards contained in 40 CFR 63. See appendix A of the
Technical Support Document prepared in conjunction with this rulemaking
action. These emission standards and control requirements are more
current, practical, and stringent than the existing NMAC 20.2.12--
Cement Kilns rule emission limitation.

B. Does this submittal comply with section 110(l) of the Act?

    Section 110(l) of the Act requires that a SIP revision submitted to
EPA be adopted after reasonable notice and public hearing. Section
110(l) also requires that we not approve a SIP revision if the revision
would interfere with any applicable requirement concerning attainment
and reasonable further progress, or any other applicable requirement of
the CAA. Records contained in the submittal show that State has
complied with public hearing and reasonable notice requirements of the
SIP. See Exhibit 9 of the submittal.
    Furthermore; in support of its submittal to repeal NMAC 20.2.12--
Cement Kilns rule the State provides the following factors: (a) Repeal
of NMAC 20.2.12--Cement Kilns rule will benefit the State by removing
potentially confusing and ambiguous provisions from the SIP and air
permitting process; (b) the emission limits in NMAC 20.2.12--Cement
Kilns rule are based on mass of particulate matter in the volume of
stack gas, whereas, the NSPS emission limits are based on mass of PM
per ton of clinker produced; (c) in addition to limiting emissions from
the cement kilns, the NSPS limits emissions from the grinding, cooling
and materials handling operations in the cement manufacturing process;
(d) the method for demonstrating compliance with the PM emission
limitation in section NMAC <IP_ADDRESS> is more complex and difficult
than the corresponding NSPS requires; (e) currently, there are no
cement manufacturing facilities under the jurisdiction of the NMED, and
they do not anticipate any new kilns to be built in the near future
(negative declaration). New Mexico substantiated this factor through
consultation with the Air Quality Bureau's permitting staff, searching
its database of facilities, the United States Geological Survey, and
trade publications. See Exhibit 8 of the submittal.
    In the unlikely event of a new cement plant locating in the area,
then that source will be subject to existing, more stringent,
appropriate federal requirements.
    We have reviewed the above factors, and agree with the State's
determination. The repeal of NMAC 20.2.12--Cement Kilns rule does not
result in an increase in the amount of PM emissions. We are proposing a
finding that section 110(l) has been complied with because there will
be no SIP relaxation. Therefore, we are proposing to approve repeal of
NMAC 20.2.12--Cement Kilns rule from the New Mexico SIP.

VI. Proposed Action

    EPA is proposing to fully approve the September 9, 2011,
infrastructure SIP submission from New Mexico, which addresses the
requirements of CAA sections 110(a)(1) and (2) as applicable to the
2008 Pb NAAQS. Specifically, EPA is proposing to approve the following
infrastructure elements, or portions thereof: Sections 110(a)(2)(A),
(B), (C), (D)(i)(I), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K),
(L), and (M). As discussed in applicable sections of this rulemaking,
EPA is not proposing action on section 110(a)(2)(I)--Nonattainment Area
Plan or Plan Revisions Under Part D, nor on the visibility protection
portion of section 110(a)(2)(J). Based upon review of the State's
infrastructure SIP submission and relevant statutory and regulatory
authorities and provisions referenced in this submission or referenced
in New Mexico's SIP, EPA believes that New Mexico has the
infrastructure in place to address all applicable required elements of
sections 110(a)(1) and (2) (except otherwise noted) to ensure that the
2008 Pb NAAQS are implemented in the State. We are hereby soliciting
comment on this proposed action. Final rulemaking will occur after
consideration of any comments.
    Additionally, we are proposing to approve the July 31, 2014, SIP
revision repealing New Mexico Administrative Code (NMAC), Title 20
Environmental Protection, Chapter 2 Air Quality (Statewide), Part 12
Cement Kilns (NMAC 20.2.12--Cement Kilns) rule from the New Mexico SIP.

VII. Statutory and Executive Order Reviews

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

    EPA is not proposing to approve this infrastructure SIP
certification and repeal of the cement kilns rule to apply on any
Indian reservation land or in any other area where EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, this proposed approval does not have tribal
implications as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000), nor will it impose substantial direct costs on
tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, and Reporting and
recordkeeping requirements.

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

    Dated: November 24, 2014.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2014-29091 Filed 12-10-14; 8:45 am]
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