[Federal Register Volume 76, Number 84 (Monday, May 2, 2011)]
[Proposed Rules]
[Pages 24421-24434]
[FR Doc No: 2011-10569]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2009-0647; FRL-9301-1]

Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Section 110(a)(2) Infrastructure Requirements for 1997 8-
Hour Ozone and Fine Particulate Matter National Ambient Air Quality
Standards; New Mexico Ambient Air Quality Standards; Approval of New
Mexico's PSD Program; CFR Codification Technical Corrections

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve submittals from the State of New
Mexico pursuant to the Clean Air Act (CAA or Act) that address the
infrastructure elements specified in the CAA section 110(a)(2),
necessary to implement, maintain, and enforce the 1997 8-hour ozone and
1997 fine particulate matter (PM2.5) national ambient air
quality standards (NAAQS

or standards). We are proposing to find that the current New Mexico
State Implementation Plan (SIP) meets the following infrastructure
elements for the 1997 8-hour ozone NAAQS and the 1997 PM2.5
NAAQS: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K),
(L), and (M). EPA is also proposing to approve a November 2, 2006, SIP
revision to regulation 20.2.3 of the New Mexico Administrative Code
(NMAC) (Ambient Air Quality Standards), to remove the state ambient air
quality standards from being an applicable requirement under the
State's Title V permitting program, found at 20.2.70 NMAC (Operating
Permits). EPA is also proposing to correct an administrative oversight
by converting our February 27, 1987, conditional approval of New
Mexico's PSD program (52 FR 5964) to a full approval based on the
November 2, 1988, approval of New Mexico's stack height regulations (53
FR 44191), at which point New Mexico fully met the condition in the
conditional approval. Please note the fact that we had not formally
converted the February 27, 1987 conditional approval to a full
approval, yet this had no impact on New Mexico's authority to implement
the PSD program. Lastly, EPA is proposing to make a number of U.S. Code
of Federal Regulations (CFR) codification technical corrections to
amend the description of the approved New Mexico SIP. This action is
being taken under section 110 and part C of the Act.

DATES: Comments must be received on or before June 1, 2011.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2009-0647, by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6comment.htm. Please click on ``6PD (Multimedia)'' and select
``Air'' before submitting comments.
     E-mail: Mr. Guy Donaldson at<EMAIL_ADDRESS>Please
also send a copy by e-mail to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number<PHONE_NUMBER>.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not
on legal holidays. Special arrangements should be made for deliveries
of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2009-0647. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://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 http://www.regulations.gov or e-mail. The http://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 e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail 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 http://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 http://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 file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below or Mr. Bill Deese at<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.
    The State submittal is also available for public inspection during
official business hours by appointment: New Mexico Environment
Department (NMED), Air Quality Bureau, 1190 St. Francis Drive, Santa
Fe, New Mexico 87502.

FOR FURTHER INFORMATION CONTACT: Ms. Dayana Medina, 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>; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' means EPA.

Table of Contents

I. Background
    A. What are the National Ambient Air Quality Standards?
    B. What is a SIP?
    C. What is the background for this rulemaking?
    a. Section 110(a)(1) and (2)
    b. Greenhouse Gas (GHG) Component of PSD Programs
    D. What elements are required under Section 110(a)(2)?
II. What action is EPA proposing?
    A. Section 110(a)(1) and (2)
    B. CFR Codification Technical Correction to 40 CFR 52.1620(e)
    C. CFR Codification Technical Corrections to 40 CFR 52.1620(c)
and 40 CFR 52.1640(c)(66)(i)(B)
    D. Conversion of Our Conditional Approval of New Mexico's PSD
Program to Full Approval and CFR Codification Technical Corrections
to 40 CFR 52.1634(a) and 40 CFR 52.1640(c)(39)
    E. SIP Revision to 20.2.3 NMAC
III. How has New Mexico addressed the elements of Section 110(a)(2)?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background

A. What are the National Ambient Air Quality Standards?

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

``may reasonably be anticipated to endanger public health and
welfare,'' and to develop a primary and secondary standard for each
NAAQS. The primary standard is designed to protect human health with an
adequate margin of safety, and the secondary standard is designed to
protect public welfare and the environment. EPA has set NAAQS for six
common air pollutants, referred to as criteria pollutants: carbon
monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur
dioxide. These standards present state and local governments with the
minimum air quality levels they must meet to comply with the Act. Also,
these standards provide information to residents of the United States
about the air quality in their communities.

B. What is a SIP?

    The SIP is a set of air pollution regulations, control strategies,
other means or techniques, and technical analyses developed by the
state, to ensure that the state meets the NAAQS. The SIP is required by
section 110 and other provisions of the Act. These SIPs can be
extensive, containing state regulations or other enforceable documents
and supporting information such as emissions inventories, monitoring
networks, and modeling demonstrations. Each state must submit these
regulations and control strategies to EPA for approval and
incorporation into the Federally enforceable SIP. Each Federally
approved SIP protects air quality primarily by addressing air pollution
at its point of origin.

C. What is the background for this rulemaking?

a. Section 110(a)(1) and (2)
    On July 18, 1997, we promulgated new and revised NAAQS for ozone
(62 FR 38856) and PM (62 FR 38652). For ozone, we set an 8-hour
standard of 0.08 parts per million (ppm) to replace the 1-hour standard
of 0.12 ppm. For PM, we set a new annual and a new 24-hour NAAQS for
particles with an aerodynamic diameter less than or equal to a nominal
2.5 micrometers (denoted PM2.5). The annual PM2.5
standard was set at 15 micrograms per cubic meter ([mu]g/m\3\). The 24-
hour PM2.5 standard was set at 65 [mu]g/m\3\. For more
information on these standards, please see the 1997 Federal Register
notices (62 FR 38856 and 62 FR 38652).
    Under sections 110(a)(1) and (2) of the Act, states are required to
submit SIPs that provide for the implementation, maintenance, and
enforcement (the infrastructure) of a new or revised NAAQS within three
years following the promulgation of the NAAQS, or within such shorter
period as EPA may prescribe. Section 110(a)(2) lists the specific
infrastructure elements that must be incorporated into the SIPs,
including for example, requirements for air pollution control measures,
and monitoring that are designed to assure attainment and maintenance
of the NAAQS. A table listing all 14 infrastructure elements is
included in subsection D of section I of this proposed rulemaking.\1\
Thus states were required to submit such SIPs for the 1997 8-hour ozone
and PM2.5 NAAQS to EPA no later than June 2000.\2\ However,
intervening litigation over the 1997 8-hour ozone and PM2.5
NAAQS created uncertainty about how to proceed and many states did not
provide the required ``infrastructure'' SIP submission for these newly
promulgated NAAQS.
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    \1\ Two elements identified in section 110(a)(2) are not
governed by the 3-year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within 3 years after promulgation of a new or
revised NAAQS, but rather are due at the time the nonattainment area
plan requirements are due pursuant to section 172. These
requirements are: (i) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D Title I of the CAA and (ii) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D Title I of the CAA. Therefore, this action
does not cover these specific SIP elements. This action also does
not pertain to section 110(a)(2)(D)(i). Section 110(a)(2)(D)(i)
contains four distinct requirements, or ``prongs,'' related to the
impacts of interstate transport. The Interstate Transport SIP must
prevent sources in the State from emitting pollutants in amounts
which will: (1) Contribute significantly to nonattainment of the
NAAQS in other states; (2) interfere with maintenance of the NAAQS
in other states; (3) interfere with provisions to prevent
significant deterioration of air quality in other states; or (4)
interfere with efforts to protect visibility in other states. EPA
published a finding on April 25, 2005 (70 FR 21147) that all states
had failed to submit SIPs addressing interstate transport for the 8-
hour ozone and PM2.5 NAAQS, as required by section
110(a)(2)(D)(i). Furthermore, there is a consent decree in place for
seven states in the western United States, including New Mexico, to
meet the requirements of section 110(a)(2)(D)(i) with regard to the
1997 8-hour ozone and PM2.5 NAAQS (74 FR 64076, December
7, 2009). Under the consent decree, for each of these seven states,
EPA is required to fully approve SIPs and/or promulgate FIPs that
satisfy the four ``prongs'' of section 110(a)(2)(D)(i) by specified
dates. In prior actions, we approved the New Mexico SIP submittal
for (1) the ``significant contribution to nonattainment prong'' of
section 110(a)(2)(D)(i) (75 FR 33174, June 11, 2010) and (2) the
``interfere with maintenance'' and ``interfere with measures to
prevent significant deterioration'' prongs of section
110(a)(2)(D)(i) (75 FR 72588, November 26, 2010). To address the
fourth prong of section 110(a)(2)(D)(i), we proposed to disapprove
the New Mexico Interstate Transport SIP provisions that address the
requirement that emissions from New Mexico sources do not interfere
with measures required in the SIP of any other state to protect
visibility (76 FR 491, January 5, 2011). In the same rulemaking, we
proposed to promulgate a FIP in order to prevent emissions from New
Mexico sources from interfering with other states' measures to
protect visibility, and to implement nitrogen oxides
(NOX) and sulfur dioxide (SO2) emission limits
necessary at one source to prevent such interference and to address
the requirement for best available retrofit technology (BART) for
NOX for this same source. For the 1997 ozone and
PM2.5 NAAQS, the requirements of section 110(a)(2)(D)(i)
are being addressed separately and are not included in the
infrastructure SIPs.
    \2\ EPA issued a revised 8-hour ozone standard on March 27, 2008
(73 FR 16436). On September 16, 2009, the EPA Administrator
announced that EPA would take rulemaking action to reconsider the
2008 primary and secondary ozone NAAQS. On January 19, 2010, EPA
proposed to set different primary and secondary ozone standards than
those set in 2008 to provide requisite protection of public health
and welfare, respectively (75 FR 2938). The final reconsidered ozone
NAAQS have yet to be promulgated. This rulemaking does not address
the 2008 ozone standard.
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    On March 4, 2004, Earthjustice submitted a notice of intent to sue
related to EPA's failure to issue findings of failure to submit related
to the infrastructure requirements for the 1997 8-hour ozone and
PM2.5 NAAQS. EPA entered into a consent decree with
Earthjustice which required EPA, among other things, to complete a
Federal Register notice announcing EPA's determinations pursuant to
section 110(k)(1)(B) of the Act as to whether each state had made
complete submissions to meet the requirements of section 110(a)(2) for
the 1997 8-hour ozone NAAQS by December 15, 2007. Subsequently, EPA
received an extension of the date to complete this Federal Register
notice until March 17, 2008, based upon agreement to make the findings
with respect to submissions made by January 7, 2008. In accordance with
the consent decree, EPA made completeness findings for each state based
upon what the Agency received from each state as of January 7, 2008.
With regard to the 1997 PM2.5 NAAQS, EPA entered into a
consent decree with Earthjustice which required EPA, among other
things, to complete a Federal Register notice announcing EPA's
determinations pursuant to section 110(k)(1)(B) of the Act as to
whether each state had made complete submissions to meet the
requirements of section 110(a)(2) for the 1997 PM2.5 NAAQS
by October 5, 2008.
    On March 27, 2008, and October 22, 2008, we published findings
concerning whether states had made the necessary 110(a)(2) submissions
for the 1997 ozone (73 FR 16205) and PM2.5 standards (73 FR
62902). In the March 27, 2008 action, we found that New Mexico had made
a submission that addressed some, but not all of the section 110(a)(2)
requirements of the Act necessary to implement the 1997

8-hour ozone NAAQS.\3\ In the October 22, 2008 action, we found that
New Mexico had made a complete SIP submission that provides for the
basic program elements specified in section 110(a)(2) of the Act
necessary to implement the 1997 PM2.5 NAAQS.
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    \3\ In the March 27, 2008 action we found that New Mexico had
not submitted a SIP revision that modified New Mexico's Prevention
of Significant Deterioration (PSD) SIP for the 1997 8-hour ozone
NAAQS to include NOX as an ozone precursor, which is
necessary for approval of elements 110(a)(2)(C) and the PSD and
visibility portion of element 110(a)(2)(J). On September 21, 2009,
New Mexico submitted the necessary PSD SIP revision. We approved New
Mexico's NOX as an ozone precursor submittal on November
26, 2010 at 75 FR 72688.
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    On October 2, 2007, we issued ``Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' Memorandum
from William T. Harnett, Director, Air Quality Policy Division, Office
of Air Quality Planning and Standards.\4\ The guidance provides that to
the extent that existing SIPs for ozone and PM already meet the
requirements, states need only certify that fact to us.
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    \4\ This and any other guidance documents referenced in this
action are in the docket for this rulemaking.
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    On December 10, 2007, the Governor of New Mexico submitted a letter
certifying that NMED has evaluated the New Mexico SIP and found that
the SIP satisfies the requirements of section 110(a)(1) and (2) for the
1997 8-hour ozone NAAQS. On March 3, 2008, the Governor of New Mexico
submitted a letter certifying that NMED has evaluated the New Mexico
SIP and found that the SIP does not satisfy all the requirements of
section 110(a)(1) and (2) for the 1997 PM 2.5 NAAQS. The
March 3, 2008 letter included a table with an explanation of how the
current New Mexico SIP meets most of the requirements of section
110(a)(2) for the PM 2.5 NAAQS and also a table outlining
what sections of New Mexico's SIP need to be revised to comply with the
section 110(a)(2) requirements for the PM 2.5 NAAQS.\5\ On
April 19, 2011, NMED submitted a letter clarifying its submittals to
make clear that the portion of the PSD SIP that is currently not acted
upon by EPA (i.e., the portions from which EPA removed its previous
approval) is not part of its infrastructure submissions.\6\ These
letters are in the docket for this rulemaking.
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    \5\ In New Mexico's March 3, 2008 infrastructure SIP submittal,
the State indicated that, at that time, the New Mexico SIP did not
satisfy all the infrastructure requirements of section 110(a)(2) for
the 1997 PM2.5 NAAQS. As explained in section III of this
rulemaking and in the TSD, we are proposing to find that New
Mexico's current SIP now meets all the infrastructure requirements
of section 110(a)(2) for the 1997 PM 2.5 NAAQS.
    \6\ The April 19, 2011 letter clarified the State's December 10,
2007 infrastructure SIP submittal for the 1997 8-hour ozone
standard; the State's March 3, 2008 infrastructure SIP submittal for
the 1997 PM 2.5 standard; and the State's June 12, 2009
infrastructure SIP submittal for the 2006 PM 2.5
standard. The State's April 19, 2011 letter is severable, as it
clarifies three separate infrastructure SIP submittals. At this
time, we are only proposing to take action on the State's December
10, 2007, and March 3, 2008 submittals for the 1997 8-hour ozone and
1997 PM 2.5 standards. We will take action on the June
12, 2009 submittal for the 2006 PM 2.5 standard in a
separate rulemaking.
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b. Greenhouse Gas (GHG) Component of PSD Programs
    EPA has recently undertaken a series of actions pertaining to the
regulation of GHGs that, although for the most part distinct from one
another, establish the overall framework for today's proposed action on
the New Mexico SIP. Four of these actions include, as they are commonly
called, the ``Endangerment Finding'' and ``Cause or Contribute
Finding,'' which EPA issued in a single final action,\7\ the ``Johnson
Memo Reconsideration,'' \8\ the ``Light-Duty Vehicle Rule,'' \9\ and
the ``Tailoring Rule.'' \10\ Taken together and in conjunction with the
CAA, these actions: (1) Established regulatory requirements for GHGs
emitted from new motor vehicles and new motor vehicle engines; (2)
determined that such regulations, when they took effect on January 2,
2011, subjected GHGs emitted from stationary sources to PSD
requirements; and (3) limited the applicability of PSD requirements to
GHG sources on a phased-in basis. EPA took this last action in the
Tailoring Rule, which, more specifically, established appropriate GHG
emission thresholds for determining the applicability of PSD
requirements to GHG-emitting sources. In December 2010, EPA followed up
on these actions by issuing the ``PSD SIP Narrowing Rule,'' \11\ in
which EPA withdrew its previous approval of SIP PSD programs in 24
states, including New Mexico, that apply to GHG-emitting sources below
the thresholds in the final Tailoring Rule. The Tailoring Rule and PSD
SIP Narrowing Rule both discuss the states' ability to provide
assurances that they will have adequate resources to meet the new GHG
PSD permitting requirements at statutory levels of emissions, and the
PSD SIP Narrowing Rule affected EPA's prior approval of portions of a
state's SIP that do not incorporate thresholds established under the
Tailoring Rule. On November 10, 2010, New Mexico adopted revisions to
the State's PSD rules to implement the GHG thresholds established in
EPA's GHG Tailoring Rule and submitted the corresponding SIP revision
to EPA on December 1, 2010. On April 14, 2011, EPA proposed approval of
New Mexico's GHG rules submitted on December 1, 2010 (76 FR 20907). EPA
intends to take final action on the December 1, 2010 submittal in a
separate rulemaking no later than EPA's final action on New Mexico's
1997 ozone and PM 2.5 infrastructure SIP submittals.
Additionally, the NMED submitted a clarification letter to EPA on April
19, 2011, clarifying that the portions of the PSD program related to
greenhouse gas permitting that remained approved after the promulgation
of EPA's PSD SIP Narrowing Rule satisfy sections 110(a)(2)(C) and (J)
of the Act. As we discuss further in this notice and in the TSD, New
Mexico currently has adequate resources to carry out the GHG component
of the currently approved PSD SIP program, which requires PSD
permitting for sources emitting GHGs at or above the 75,000/100,000
tons per year (tpy) threshold specified by the Tailoring Rule.
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    \7\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
    \8\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April
2, 2010).
    \9\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
    \10\ ``Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3,
2010).
    \11\ ``Limitation of Approval of Prevention of Significant
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources
in State Implementation Plans.'' 75 FR 82536 (December 30, 2010).
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D. What elements are required under Section 110(a)(2)?

    The October 2, 2007, EPA guidance for addressing the SIP
infrastructure elements required under sections 110(a)(1) and (2) for
the 1997 ozone and PM 2.5 NAAQS, provides a list of 14
essential components that States must include in their SIPs. These are
listed in Table 1 below.

          Table 1--Section 110(a)(2) Elements Required in SIPs
------------------------------------------------------------------------
         Clean Air Act Citation                 Brief description
------------------------------------------------------------------------
Section 110(a)(2)(A)...................  Emission limits and other
                                          control measures.
Section 110(a)(2)(B)...................  Ambient air quality monitoring/
                                          data system.
Section 110(a)(2)(C)...................  Program for enforcement of
                                          control measures.
Section 110(a)(2)(D)(ii) \12\..........  Interstate and international
                                          transport.
Section 110(a)(2)(E)...................  Adequate resources.
Section 110(a)(2)(F)...................  Stationary source monitoring
                                          system.
Section 110(a)(2)(G)...................  Emergency power.
Section 110(a)(2)(H)...................  Future SIP revisions.
Section 110(a)(2)(J) \13\..............  Consultation with government
                                          officials.
Section 110(a)(2)(J)...................  Public notification.
Section 110(a)(2)(J)...................  Prevention of significant
                                          deterioration (PSD) and visi
                                          bility
                                         protection.
Section 110(a)(2)(K)...................  Air quality modeling/data.
Section 110(a)(2)(L)...................  Permitting fees.
Section 110(a)(2)(M)...................  Consultation/participation by
                                          affected local entities.
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II. What action is EPA proposing?

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

    EPA is proposing to approve the New Mexico SIP submittals that
identify where and how the 14 basic infrastructure elements are in the
EPA-approved SIP as specified in section 110(a)(2) of the Act. The New
Mexico submittals do not include revisions to the SIP, but document how
the current New Mexico SIP already includes the required infrastructure
elements. In today's action, we are proposing to find that the
following section 110(a)(2) elements are contained in the current New
Mexico SIP and provide the infrastructure for implementing the 1997
ozone and PM 2.5 standards: Emission limits and other
control measures (section 110(a)(2)(A)); ambient air quality
monitoring/data system (section 110(a)(2)(B)); program for enforcement
of control measures (section 110(a)(2)(C)); international and
interstate pollution abatement (section 110(a)(2)(D)(ii)); adequate
resources (section 110(a)(2)(E)); stationary source monitoring system
(section 110(a)(2)(F)); emergency power (section 110(a)(2)(G)); future
SIP revisions (section 110(a)(2)(H)); consultation with government
officials (section 110(a)(2)(J)); public notification (section
110(a)(2)(J)); PSD and visibility protection (section 110(a)(2)(J));
air quality modeling/data (section 110(a)(2)(K)); permitting fees
(section 110(a)(2)(L)); and consultation/participation by affected
local entities (section 110(a)(2)(M)).
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    \12\ Section 110(a)(2)(D)(ii) of the Act requires compliance
with sections 115 and 126 of the Act, relating to international and
interstate pollution abatement, respectively. Under section
126(a)(1), SIPs must require notification to nearby, affected states
of ``major proposed new (or modified) sources'' in either of two
instances: (1) when the source is subject to PSD (section
126(a)(1)(A)); or (2) when the source ``may significantly contribute
to levels of air pollution in excess'' of the NAAQS in air quality
control regions in other states (section 126(a)(1)(B)). Any new
major stationary source or major modification in an attainment or
unclassifiable area is subject to PSD. Therefore, in attainment or
unclassifiable areas, any source that potentially falls under
section 126(a)(1)(B) must also fall under (A). Thus, to the extent
that section 126(a)(1)(B) provides any requirements separate from
those in section 126(a)(1)(A), it does so only for major proposed
new or modified sources in nonattainment areas, that is, for sources
subject to nonattainment NSR. The requirements of section
126(a)(1)(B) should therefore be addressed in states with
nonattainment areas through those states' nonattainment NSR
programs. As explained elsewhere in this proposed rulemaking,
nonattainment NSR programs are not a subject of this action, so EPA
will not address the requirements of section 126(a)(1)(B) in the
infrastructure SIPs.
    \13\ Section 110(a)(2)(I) pertains to the nonattainment planning
requirements of part D, Title I of the Act. This section is not
governed by the 3-year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within 3 years after promulgation of a new or
revised NAAQS, but are due at the time the nonattainment area plan
requirements are due pursuant to section 172. Thus this action does
not cover section 110(a)(2)(I).
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B. CFR Codification Technical Correction to 40 CFR 52.1620(e)

    EPA is proposing to correct a CFR codification technical error made
in the table titled ``EPA Approved Nonregulatory Provisions and Quasi-
Regulatory Measures in the New Mexico SIP,'' found at 40 CFR
52.1620(e).\14\ EPA approved New Mexico's Air Pollution Episode
Contingency Plan into the SIP on August 21, 1990 (55 FR 34013) under
the SIP codification method in existence at the time. When we changed
our SIP codification method for New Mexico on July 13, 1998 (63 FR
37493), we added the table currently found under 40 CFR 52.1620(e), and
included entries in this table for all EPA approved nonregulatory
provisions in the New Mexico SIP, including those approved prior to
1998. We note that we made an error in not including the already SIP
approved New Mexico Air Pollution Episode Contingency Plan when we
added this table under 40 CFR 52.1620(e). We are proposing to make a
CFR codification technical correction to amend the table titled ``EPA
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the
New Mexico SIP'' to include an entry for the New Mexico Air Pollution
Episode Contingency Plan approved by EPA into the SIP on August 21,
1990 (55 FR 34013, 40 CFR 52.1639(a)).\15\ EPA is proposing to make
this CFR codification technical correction because it clarifies that
EPA has approved the State's air pollution episode provisions into the
New Mexico SIP.
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    \14\ 40 CFR 52.1620 provides the Identification of Plan for New
Mexico, which lists the EPA-approved provisions of the SIP for the
State, as provided under section 110 of the Act, 42 U.S.C. 7410, and
40 CFR 51 to meet the NAAQS. New Mexico's EPA approved nonregulatory
provisions are provided under 40 CFR 52.1620(e).
    \15\ The New Mexico Air Pollution Episode Contingency Plan is
applicable statewide outside of the boundaries of Bernalillo County
and Indian Lands, and was adopted by New Mexico on July 7, 1988, and
submitted to EPA as a SIP revision on August 19, 1988.
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C. CFR Codification Technical Corrections to 40 CFR 52.1620(c) and 40
CFR 52.1640(c)(66)(i)(B)

    EPA is also proposing to correct two CFR codification technical
errors made in the table titled ``EPA Approved New Mexico
Regulations,'' found at 40 CFR 52.1620(c).\16\ On October 20, 1995, New
Mexico adopted a recodification of the State's air quality control
regulations

(AQCRs).\17\ New Mexico submitted the recodification of, and revisions
to, the SIP on January 8, 1996, and EPA approved these revisions into
the SIP on September 26, 1997 (62 FR 50514). We would like to clarify
that when we approved the recodification of, and revisions to, the New
Mexico SIP in the September 26, 1997 rulemaking, we made a codification
error in 40 CFR 52.1620(c) by incorrectly including entries in the
table titled ``EPA Approved New Mexico Regulations'' for part 70
(Operating Permits) and part 71 (Operating Permit Emission Fees) of
20.2 NMAC, which constitute New Mexico's Title V permitting program and
the associated permitting fees, respectively.\18\ The preamble of the
September 26, 1997 rulemaking contains a table listing the rules
submitted by New Mexico as a recodification, which EPA had reviewed and
approved as a recodification to the New Mexico SIP (62 FR 50514, see
pages 50516-17). This table in the preamble did not contain part 70 or
part 71 of 20.2 NMAC, yet the CFR table found at 40 CFR 52.1620(c) and
the New Mexico Identification of Plan at 40 CFR 52.1640(c)(66)(i)(B)
\19\ erroneously included the two Title V regulations. The preamble of
the September 26, 1997 rulemaking did not act to approve these two
Title V regulations as part of the New Mexico SIP. Further, we have
never taken any rulemaking action to approve parts 70 and 71 into the
New Mexico SIP. Therefore, New Mexico's Title V permitting program has
always been, and continues to be outside the scope of the New Mexico
SIP.\20\ In addition, the table titled ``EPA Approved New Mexico
Regulations,'' currently incorrectly lists the EPA approval date of the
recodification of New Mexico's regulations in the SIP to be November
25, 1997. Although the Federal Register citation (62 FR 50514) listed
under the table is correct, the November 25, 1997 date is incorrect and
should be changed to September 26, 1997. EPA is proposing to amend the
table titled ``EPA Approved New Mexico Regulations,'' found at 40 CFR
52.1620(c), by deleting the entries for parts 70 and 71 of 20.2 NMAC
and by changing the EPA approval date of the 62 FR 50514 rulemaking
from the currently listed date of November 25, 1997 to the correct date
of September 26, 1997. We are also proposing to amend 40 CFR
52.1640(c)(66)(i)(B) such that it reads as follows: ``New Mexico
Administrative Code, Title 20, Chapter 2, Parts 3, 5, 7, 8, 10, 11, 12,
13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 30, 31, 32, 33, 34, 40, 41, 60,
61, 72 (Subparts I, II and III; Subpart V, Sections 501 and 502), 73,
75, 79, and 80; adopted by the New Mexico Environmental Improvement
Board on October 20, 1995, and filed with the State Records and
Archives Center on October 30, 1995.'' EPA is proposing to make the CFR
codification technical corrections to 40 CFR 52.1640(c)(66)(i)(B) and
to the table titled ``EPA Approved New Mexico Regulations,'' found
under 40 CFR 52.1620(c), as indicated above, because it is necessary to
clarify which New Mexico air quality regulations are currently approved
into the New Mexico SIP and the EPA approval date of these regulations
into the SIP.\21\
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    \16\ New Mexico's air quality regulations approved by EPA into
the SIP, along with the State's approval/effective date of the
regulations, EPA's approval date of the regulations into the SIP,
and the Federal Register notice citation for approval into the SIP
are provided under 40 CFR 52.1620(c).
    \17\ In New Mexico's 1995 adoption of the recodification of the
State's air quality regulations, the AQCRs existing at the time were
renumbered and reformatted into the current NMAC, as was required by
the New Mexico State Records Center.
    \18\ After construction, a source must obtain an operating
permit, also called a Title V operating permit, as this requirement
comes from Title V of the Act. Most Title V permits are issued by
approved State and local permitting authorities. These permits are
often called part 70 permits because the regulations that establish
minimum standards for State permit programs are found at 40 CFR part
70.
    \19\ 40 CFR 52.1640 identifies the original New Mexico SIP and
all revisions submitted by New Mexico that were federally approved
prior to January 1, 1998.
    \20\ New Mexico's Title V permitting program is legally not part
of the SIP, but was approved by EPA on November 26, 1996 (61 FR
60032) as the State's Title V permitting program.
    \21\ Any other CFR corrections to the New Mexico SIP that may be
required will be addressed in a separate future action.
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D. Conversion of Our Conditional Approval of New Mexico's PSD Program
to Full Approval and the CFR Codification Technical Corrections to 40
CFR 52.1634(a) and 40 CFR 52.1640(c)(39)

    In reviewing the history of New Mexico's PSD program for the
purposes of the infrastructure SIP, we found that the State's PSD
program was conditionally approved into the SIP on February 27, 1987
(52 FR 5964). In the February 27, 1987 rulemaking, New Mexico's PSD
program was conditionally approved by EPA on the basis that (i) the
State would not issue permits to sources that would require review
under EPA's stack height regulations because they would have a stack
height over 65 meters or would use any other dispersion techniques, as
defined at 40 CFR 51.1(hh); and (ii) as quickly as possible, the State
would adopt and submit as a plan revision a regulation that is
equivalent to the regulations in 40 CFR Part 51 promulgated to
implement Section 123 of the Act, regarding stack heights. On May 14,
1985, the Governor of New Mexico submitted a letter in which he
committed the State not to issue PSD permits to sources that would
require review under EPA's stack height regulations because they would
have stack heights over 65 meters or would use any other dispersion
techniques, as defined at 40 CFR 51.1(hh).\22\ On April 26, 1988, New
Mexico submitted as a SIP revision a new regulation on stack height
requirements to satisfy the Federal requirements of 40 CFR Part 51. On
November 2, 1988, EPA approved New Mexico's stack height regulation
into the SIP (53 FR 44191). Thus, condition (i) of our February 27,
1987 conditional approval of New Mexico's PSD program was met when New
Mexico complied with the Governor's May 14, 1985 commitment letter in
the interim, and condition (ii) was met when we approved New Mexico's
stack height regulations in the November 2, 1988 rulemaking. Therefore,
upon our approval of New Mexico's stack height regulations in the
November 2, 1988 rulemaking, New Mexico had fully met all the
conditions of EPA's February 27, 1987 conditional approval of the
State's PSD program. However, due to an administrative oversight, EPA
failed to convert the conditional approval of New Mexico's PSD program
into a full approval at that time. We note that the fact that EPA has
not formally converted the conditional approval to a full approval has
no impact on the State's authority to implement the PSD program.
Therefore, we now propose to convert our February 27, 1987 conditional
approval of the State's PSD program to a full approval based on our
approval of the State's stack height regulations in the November 2,
1988 rulemaking (53 FR 44191).
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    \22\ See 40 CFR 52.1640(c)(37)(B).
---------------------------------------------------------------------------

    In accordance with our proposal to convert our February 27, 1987
conditional approval of New Mexico's PSD program to a full approval, we
intend to make codification technical corrections to 40 CFR 52.1634(a)
and 40 CFR 52.1640(c)(39).\23\ 40 CFR 52.1634(a) currently identifies
New Mexico's PSD program as meeting the requirements of part C of the
Act for prevention of significant deterioration of air quality and as
being SIP approved, but does not explain that we initially
conditionally approved the State's PSD program on February 27, 1987,
and that New Mexico has since then met the conditions of our

conditional approval. We are proposing to amend the paragraph at 40 CFR
52.1634(a) to read as follows: ``The plan submitted by the Governor of
New Mexico on February 21, 1984 (as adopted by the New Mexico
Environmental Improvement Board (NMEIB) on January 13, 1984), August
19, 1988 (as revised and adopted by the NMEIB on July 8, 1988), and
July 16, 1990 (as revised and adopted by the NMEIB on March 9, 1990),
Air Quality Control Regulation 707--Permits, Prevention of Significant
Deterioration (PSD) and its Supplemental document, is approved as
meeting the requirements of part C, Clean Air Act, for preventing
significant deterioration of air quality. Additionally, on November 2,
1988, EPA approved New Mexico's stack height regulation into the SIP
(53 FR 44191), thereby satisfying the conditions of EPA's conditional
approval of the State's PSD program on February 27, 1987 (52 FR 5964).
Therefore, the conditional approval is converted to a full approval
when we take final action on this CFR correction.'' 40 CFR
52.1640(c)(39) currently identifies New Mexico's stack height
regulation submitted on April 26, 1988 as having been approved into the
SIP, but does not identify that this denotes that New Mexico has fully
satisfied all conditions of our February 27, 1987 conditional approval
of New Mexico's PSD program. We are proposing to amend the paragraph at
40 CFR 52.1640(c)(39) to read as follows: ``On April 26, 1988, the
Governor of New Mexico submitted a revision to the State Implementation
Plan that contained Air Quality Control Regulation No. 710--Stack
Height Requirements, as adopted by the New Mexico Environmental
Improvement Board on March 10, 1988. Regulation No. 710 enables the
State to ensure that the degree of emission limitation required for the
control of any air pollutant under its SIP is not affected by that
portion of any stack height that exceeds GEP or by any other dispersion
technique. With EPA's November 2, 1988, approval of the State's
revision to the State Implementation Plan to include Regulation No. 710
(53 FR 44191), the State has satisfied the conditions of our February
27, 1987 conditional approval of the State's plan for preventing
significant deterioration of air quality (52 FR 5964). When we take
final action on this CFR correction, the conditional approval will be
converted to a full approval.''
---------------------------------------------------------------------------

    \23\ 40 CFR 52.1634(a) provides for New Mexico's SIP approved
PSD program. As stated elsewhere in this rulemaking, 40 CFR
52.1640(c) provides for all revisions submitted by New Mexico that
were federally approved into the SIP prior to January 1, 1998. 40
CFR 52.1640(c)(39) provides for New Mexico's SIP approved stack
height regulation.
---------------------------------------------------------------------------

    We are proposing the above CFR codification technical corrections
to the paragraphs at 40 CFR 52.1634(a) and 40 CFR 52.1640(c)(39)
because we are proposing to convert our February 27, 1987 conditional
approval of New Mexico's PSD program to a full approval.

E. SIP Revision to 20.2.3 NMAC

    In conjunction with our proposed finding that the New Mexico SIP
meets the section 110(a)(1) and (2) infrastructure SIP elements listed
above, we are also proposing to fully approve a severable portion of a
SIP revision submitted by NMED to EPA on November 2, 2006. This portion
of the submittal contains a revision to 20.2.3 NMAC (Ambient Air
Quality Standards) and is not a requirement under the infrastructure
SIPs, and therefore our proposed approval of this revision is severable
from our proposed approval of New Mexico's infrastructure SIP
submittals. The revision adds a new subpart 9 to 20.2.3 NMAC, including
language to ensure that sources being issued a permit under the State's
minor source permitting program, found at 20.2.72 NMAC (Construction
Permits), are required to continue to address the State's ambient air
quality standards in their application. The revision includes language
in <IP_ADDRESS> NMAC that removes the state ambient air quality standards
from being an applicable requirement under the State's Title V
permitting program, found at 20.2.70 NMAC (Operating Permits). Because
New Mexico's Title V program is outside the scope of the New Mexico
SIP, this revision does not constitute a relaxation of the current New
Mexico SIP.\24\ As described above in subsection C of this section, we
made a codification error in 40 CFR 52.1620(c) by incorrectly including
entries in the table titled ``EPA Approved New Mexico Regulations'' for
part 70 (Operating Permits) and part 71 (Operating Permit Emission
Fees) of 20.2 NMAC, which are State regulations that have not been
approved into the New Mexico SIP. As the New Mexico Title V permitting
program, codified at 20.2.70 NMAC, has not been approved into the New
Mexico SIP, approval of the November 2, 2006 revision to 20.2.3 NMAC is
appropriate and will not constitute a relaxation of the current New
Mexico SIP. The SIP revision to 20.2.3 NMAC we are proposing to approve
is severable from the portions of the November 2, 2006 SIP submittal on
which we are taking no action in this rulemaking. By severable, we mean
that the portion of the SIP revisions we are proposing to approve can
be implemented independently of the portions on which we are not
acting, without affecting the stringency of the submitted rules. EPA is
not proposing to take action on any other portions of the November 2,
2006 SIP revisions in this proposed rulemaking; EPA intends to act on
the other revisions in a separate rulemaking. EPA proposes to approve
the portion of the November 2, 2006 revision, as indicated above,
because it clarifies the permitting requirements under the New Mexico
SIP.
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    \24\ See footnote 20 above.
---------------------------------------------------------------------------

III. How has New Mexico addressed the elements of Section 110(a)(2)?

    The New Mexico submittals address the elements of Section 110(a)(2)
as described below. We provide a more detailed review and analysis of
the New Mexico infrastructure SIP elements in the Technical Support
Document (TSD), located in the docket for this rulemaking.
    Enforceable emission limits and other control measures, pursuant to
section 110(a)(2)(A): Section 110(a)(2)(A) requires that all measures
and other elements in the SIP be enforceable. This provision does not
require the submittal of regulations or emission limits developed
specifically for attaining the 1997 8-hour ozone and PM2.5
standards. Those regulations are due later as part of attainment
demonstrations.
    The New Mexico Environmental Improvement Act, found in Chapter 74,
Article 1 of the New Mexico Statutes Annotated 1978 (denoted NMSA 1978
74-1), created the NMED and the New Mexico Environmental Improvement
Board (EIB). The New Mexico Air Quality Control Act codified at NMSA
1978 74-2, delegates authority to the EIB to adopt, promulgate,
publish, amend and repeal regulations consistent with the Air Quality
Control Act to attain and maintain NAAQS and prevent or abate air
pollution. See NMSA 1978 74-2-5(B)(1). The Air Quality Control Act also
designates the NMED as the State's air pollution control agency and the
Environmental Improvement Act provides the NMED with enforcement
authority. The SIP rule at Title 20 of the New Mexico Administrative
Code (denoted as 20 NMAC) describes NMED as the State's air pollution
control agency and its enforcement authority, referencing the NMSA 1978
(44 FR 21019, April 9, 1979; revised 49 FR 44101, November 2, 1984;
recodified approved in 62 FR 50518, September 26, 1997).
    The NMED has promulgated rules to limit and control emissions of
PM, sulfur dioxide (SO2), nitrogen oxides (NOX)
and volatile organic compounds

(VOCs).\25\ These rules include emission limits, control measures,
permits, fees, and compliance schedules and are found in Title 20,
chapter 2 of the NMAC\26\ (denoted 20.2 NMAC): 20.2 NMAC parts 3, 5, 7-
8, 10-22, 30-34, 40-41, 72-75, and 98-99.
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    \25\ NOX and VOCs are precursors to ozone. PM can be
emitted directly and secondarily formed; the latter is the result of
NOX and SO2 precursors combining with ammonia
to form ammonium nitrate and ammonium sulfate.
    \26\ Title 20 addresses Environmental Protection and chapter 2
addresses Air Quality.
---------------------------------------------------------------------------

    In this proposed action, EPA is not proposing to approve or
disapprove any existing New Mexico SIP provisions with regard to excess
emissions during startup, shutdown, or malfunction (SSM) of operations
at a facility.\27\ EPA believes that a number of states may have SSM
SIP provisions that are contrary to the Act and existing EPA
guidance,\28\ and the Agency plans to address such state regulations in
the future. In the meantime, EPA encourages any state having a
deficient SSM provision to take steps to correct it as soon as
possible. Similarly, in this proposed action, EPA is not proposing to
approve or disapprove any existing state rules with regard to
director's discretion or variance provisions. EPA believes that a
number of states may have such provisions that are contrary to the Act
and existing EPA guidance (52 FR 45044, November 24, 1987),\29\ and the
Agency plans to take action in the future to address such state
regulations. In the meantime, EPA encourages any state having a
director's discretion or variance provision in its SIP which is
contrary to the Act and EPA guidance to take steps to correct the
deficiency as soon as possible.
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    \27\ EPA approved New Mexico's current provisions regarding
excess emissions occurring during startup, shutdown, and malfunction
(SSM) of operations at a facility on September 14, 2009 (74 FR
46910).
    \28\ ``State Implementation Plans (SIPs): Policy Regarding
Excess Emissions During Malfunctions, Startup, and Shutdown,''
Memorandum from Steven A. Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and Robert Perciasepe,
Assistant Administrator for Air and Radiation, dated August 11,
1999.
    \29\ The section addressing exemptions and variances is found on
p. 45109 of the 1987 rulemaking.
---------------------------------------------------------------------------

    A detailed list of the applicable 20.2 NMAC parts discussed above
is provided in the TSD. New Mexico's SIP clearly contains enforceable
emission limits and other control measures, which are in the Federally
enforceable SIP. EPA is proposing to find that the New Mexico SIP meets
the requirements of section 110(a)(2)(A) with respect to the 1997 8-
hour ozone and PM2.5 NAAQS.
    Ambient air quality monitoring/data analysis system, pursuant to
section 110(a)(2)(B): Section 110(a)(2)(B) requires SIPs to include
provisions for establishment and operation of ambient air quality
monitors, collecting and analyzing ambient air quality data, and making
these data available to EPA upon request. The NMED operates and
maintains a statewide network of air quality monitors; data are
collected, results are quality assured, and the data are submitted to
EPA's Air Quality System\30\ on a regular basis. New Mexico's Statewide
Air Quality Surveillance Network was approved by EPA on August 6, 1981
(46 FR 40005), and consists of stations that measure ambient
concentrations of the six criteria pollutants, including ozone and
PM2.5. The air quality surveillance network undergoes annual
review by EPA. On July 7, 2010, NMED submitted its 2010 Annual Air
Monitoring Network Plan (AAMNP) that included the plans for the 1997
ozone and PM2.5 NAAQS. EPA approved New Mexico's 2010 AAMNP
on January 7, 2011.\31\ The NMED Web site provides the ozone and
PM2.5 monitor locations, and current and historical data
(http://air.nmenv.state.nm.us/).
---------------------------------------------------------------------------

    \30\ The Air Quality System (AQS) is EPA's repository of ambient
air quality data. AQS stores data from over 10,000 monitors, 5000 of
which are currently active. State, Local and Tribal agencies collect
the data and submit it to AQS on a periodic basis.
    \31\ A copy of our approval letter is available in the docket
for this rulemaking.
---------------------------------------------------------------------------

    In summary, New Mexico meets the requirement to establish, operate,
and maintain an ambient air monitoring network, collect and analyze the
monitoring data, and make the data available to EPA upon request. EPA
is proposing to find that the current New Mexico SIP meets the
requirements of section 110(a)(2)(B) with respect to the 1997 8-hour
ozone and PM2.5 NAAQS.
    Program for enforcement of control measures and regulation of the
modification and construction of any stationary source within the areas
covered by the plan as necessary to assure that NAAQS are achieved,
including a permit program, as required by Parts C and D, pursuant to
section 110(a)(2)(C): Regarding a program for enforcement of control
measures, as stated previously, the Air Quality Control Act designates
the NMED as the State's air pollution control agency and the
Environmental Improvement Act provides the NMED with authority to
enforce the state's environmental quality rules. The NMED established
rules governing emissions of the criteria pollutants and their
precursors throughout the State and these rules are in the Federally
enforceable SIP. The rules in 20.2 NMAC parts 3, 5, 7-8, 10-22, 30-34,
40-41, 72-75, and 98-99 include allowable emission rates, compliance,
control plan requirements, actual and allowable emissions, monitoring
and testing requirements, recordkeeping and reporting requirements, and
control schedules. These rules clarify the boundaries beyond which
regulated entities in New Mexico can expect enforcement action.
    To meet the requirement for having a program for the regulation of
the modification and construction of any stationary source within the
areas covered by the plan as necessary to assure that national ambient
air quality standards are achieved, including a permit program as
required by Parts C and D, generally, the State is required to have
SIP-approved PSD, Nonattainment, and Minor NSR permitting programs
adequate to implement the 1997 8-hour ozone and PM2.5 NAAQS.
We are not evaluating nonattainment-related provisions, such as the
Nonattainment NSR program required by part D in 110(a)(2)(C) and
measures for attainment required by section 110(a)(2)(I), as part of
the infrastructure SIPs for these two NAAQS because these submittals
are required beyond the date (3 years from NAAQS promulgation) that
section 110 infrastructure SIP submittals are required.
    PSD programs apply in areas that are meeting the NAAQS, referred to
as areas in attainment, and in areas for which there is insufficient
information to designate as either attainment or nonattainment,
referred to as unclassifiable areas. As described in the section titled
``What Action is EPA Proposing?,'' New Mexico's PSD program was
conditionally approved into the SIP on February 27, 1987 (52 FR 5964).
Today, we propose to convert the conditional approval to a full
approval on the basis of our November 2, 1988 approval of New Mexico's
April 26, 1988 submittal to include in the SIP a new regulation on
stack height requirements to satisfy the Federal requirements of 40 CFR
Part 51. Subsequent revisions to New Mexico's PSD program were approved
into the SIP on August 21, 1990 (55 FR 34013), May 2, 1991 (56 FR
20137), October 15, 1996 (61 FR 53639), March 10, 2003 (68 FR 11316),
December 24, 2003 (68 FR 74483), September 5, 2007 (72 FR 50879), and
November 26, 2010 (75 FR 72688).
    To meet the requirements of 110(a)(2)(C) for the 1997 ozone
standard, EPA believes the State must

have updated its PSD rules to treat NOX as a precursor for
ozone (70 FR 71612). On November 26, 2010, EPA approved revisions to
New Mexico's PSD SIP for the 1997 8-hour ozone NAAQS to include
NOX as an ozone precursor (75 FR 72688).
    To implement section 110(a)(2)(C) for the 1997 PM2.5
standard, EPA believes that States should appropriately implement the
interim policy for preconstruction (PSD) review as interpreted by legal
rulings.\32\ States may follow this approach until May 16, 2011, the
date by which we required states to provide revisions to their PSD
regulations to implement the PM2.5 standard as provided
under 73 FR 28321.\33\ During the transition to SIP-approved PSD
requirements for PM2.5, New Mexico confirmed to EPA by
letter that: (1) it does not use PM10 as a surrogate for
PM2.5 in its permitting programs; (2) it requires that
applicants include PM2.5 modeling and emissions in their PSD
and minor source permit applications; and (3) the record for the NMED's
permitting decision includes an explanation of how PM2.5
emissions have been appropriately analyzed and estimated.\34\ (See also
75 FR 52692, page 52700; 75 FR 72688, page 72694). Furthermore, the
State has recently proposed to revise their rules to address
PM2.5 in their PSD program, and expects to adopt these
revisions in May 2011. The State is planning to submit these revised
PSD rules to EPA as a SIP revision by May 16, 2011. EPA will act on
this submission in a separate rulemaking.
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    \32\ ``Interim Implementation of New Source Review for
PM2.5,'' Memorandum from John S. Seitz, Director of
Office of Air Quality Planning and Standards, dated October 23,
1997.
    \33\ The Federal Register notice 73 FR 28321 was published May
16, 2008.
    \34\ July 23, 2010, letter from Mary Uhl, Bureau Chief, Air
Quality Bureau, New Mexico Environment Department, to Thomas Diggs,
Associate Director for Air Programs, EPA Region 6. This letter is in
the docket for this rulemaking.
---------------------------------------------------------------------------

    New Mexico has the authority to issue permits under the SIP-
approved PSD program to sources of GHG emissions (75 FR 82536, page
82536, December 30, 2010).\35\ The Tailoring Rule established
thresholds that phase in the applicability of PSD requirements to GHG
sources, starting with the largest GHG emitters, and were designed to
relieve the overwhelming administrative burdens and costs associated
with the dramatic increase in permitting burden that would have
resulted from applying PSD requirements to GHG emission increases at or
above only the mass-based statutory thresholds of 100/250 tpy generally
applicable to all PSD-regulated pollutants starting on January 2, 2011.
However, EPA recognized that even after it finalized the Tailoring
Rule, many SIPs with approved PSD programs would, until they were
revised, continue to apply PSD at the statutory thresholds, even though
the states would not have sufficient resources to implement the PSD
program at those levels. EPA consequently implemented its ``PSD SIP
Narrowing Rule'' and narrowed its approval of those provisions of
previously approved SIPs of 24 states, including New Mexico, that apply
PSD to GHG emission increases from sources emitting GHGs below the
Tailoring Rule thresholds (75 FR 82536, December 30, 2010). Through the
PSD SIP Narrowing Rule, EPA withdrew its previous approvals of those
programs to the extent the SIPs apply PSD to increases in GHG emissions
from GHG-emitting sources below the Tailoring Rule thresholds. The
portions of the PSD programs regulating GHGs from GHG-emitting sources
with emission increases at or above the Tailoring Rule thresholds
remained approved. The effect of EPA narrowing its approval in this
manner is that the provisions of previously approved SIPs that apply
PSD to GHG emissions increases from sources emitting GHGs below the
Tailoring Rule thresholds have the status of having been submitted by
the state but not yet acted upon by EPA (75 FR 82536, December 30,
2010).
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    \35\ On June 24, 2010, the State submitted a letter to EPA
stating that current New Mexico rules require regulating GHGs at the
existing 100/250 tpy threshold, rather than at the higher thresholds
set in the Tailoring Rule because the State does not have the
authority to apply the meaning of the term ``subject to regulation''
established in the Tailoring Rule. New Mexico also submitted a
letter on September 14, 2010, in response to the proposed GHG SIP
Call again confirming that EPA correctly classified New Mexico as a
State with authority to apply PSD requirements to GHGs. The
September 14, 2010, letter also identifies that NMED is pursuing
rulemaking activity to define the terms ``greenhouse gas'' and
``subject to regulation.'' These two letters are in the docket for
this rulemaking. As explained elsewhere in this rulemaking, on
November 10, 2010, New Mexico adopted revisions to the State's PSD
rules to implement the GHG thresholds established in EPA's GHG
Tailoring Rule and submitted the corresponding SIP revision to EPA
on December 1, 2010. On April 14, 2011, EPA proposed approval of New
Mexico's GHG rules submitted on December 1, 2010 (76 FR 20907). EPA
intends to take final action on the December 1, 2010 submittal in a
separate rulemaking no later than EPA's final action on New Mexico's
1997 ozone and PM2.5 infrastructure SIP submittals.
---------------------------------------------------------------------------

    On November 10, 2010, New Mexico adopted revisions to the State's
PSD rules to implement the GHG thresholds established in EPA's GHG
Tailoring Rule and submitted the corresponding SIP revision to EPA on
December 1, 2010. On April 14, 2011, EPA proposed approval of New
Mexico's GHG rules submitted on December 1, 2010 (76 FR 20907). EPA
intends to take final action on the above proposal in a separate
rulemaking no later than EPA's final action on New Mexico's 1997 ozone
and PM2.5 infrastructure SIP submittals. We are proposing to
find that the current New Mexico PSD SIP meets the requirements of
section 110(a)(2)(C) with respect to the 1997 8-hour ozone and
PM2.5 NAAQS, as long as we are able to fully approve New
Mexico's GHG submittal on or before our final action on New Mexico's
1997 ozone and PM2.5 infrastructure SIP submittals.
    Additionally, New Mexico submitted a clarification letter to EPA on
April 19, 2011, clarifying that the portion of the GHG PSD program in
the State's submittal under infrastructure SIP review is only the
portion that remained approved after EPA's promulgation of the PSD SIP
Narrowing Rule, which is the portion that regulates GHG-emitting
sources with GHG emissions at or above the Tailoring Rule thresholds.
Therefore, if we are unable to fully approve New Mexico's GHG
submittal, in the alternative, we are proposing to find that the
current New Mexico PSD SIP meets section 110(a)(2)(C) with respect to
the 1997 8-hour ozone and PM2.5 NAAQS on the basis of the
State's April 19, 2011 clarification letter.
    Section 110(a)(2)(C) creates ``a general duty on States to include
a program in their SIP that regulates the modification and construction
of any stationary source as necessary to assure that the NAAQS are
achieved'' (70 FR 71612, 71677). EPA provides states with a ``broad
degree of discretion'' in implementing their Minor NSR programs (71 FR
48696, 48700). The ``considerably less detailed'' regulations for minor
NSR are provided in 40 CFR 51.160 through 51.164. EPA has determined
that New Mexico's Minor NSR program adopted pursuant to section
110(a)(2)(C) of the Act regulates emissions of all regulated air
contaminants for which there is a NAAQS (<IP_ADDRESS> NMAC). New
Mexico's Minor NSR permitting requirements are found at 20.2.72 NMAC
and were approved into the SIP on May 14, 1973 (38 FR 12702).\36\ In
this action, EPA is proposing to approve New Mexico's infrastructure
SIP for the 1997 8-hour ozone and PM2.5 NAAQS with respect
to the general requirement of section 110(a)(2)(C) to include a program
in the SIP that regulates the modification and construction of any

stationary source as necessary to assure that the NAAQS are achieved.
EPA is not proposing to approve or disapprove the State's existing
Minor NSR program itself to the extent that it is inconsistent with
EPA's regulations governing this program. EPA believes that a number of
states may have Minor NSR provisions that are contrary to the existing
EPA regulations for this program. EPA intends to work with states to
reconcile state Minor NSR programs with EPA's regulatory provisions for
the program. The statutory requirements of section 110(a)(2)(C) provide
for considerable flexibility in designing Minor NSR programs, and EPA
believes it may be time to revisit the regulatory requirements for this
program to give the states an appropriate level of flexibility to
design a program that meets their particular air quality concerns,
while assuring reasonable consistency across the country in protecting
the NAAQS with respect to new and modified minor sources.
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    \36\ Revisions to New Mexico's minor source permitting program
were most recently approved by EPA into the SIP on September 26,
1997 (62 FR 50514).
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    EPA is proposing to find that the current New Mexico SIP meets the
requirements of section 110(a)(2)(C) with respect to the 1997 8-hour
ozone and PM2.5 NAAQS.
    Interstate and international transport, pursuant to section
110(a)(2)(D)(ii): Section 110(a)(2)(D)(ii) of the Act requires
compliance with sections 115 and 126 of the Act, relating to interstate
and international pollution abatement. Section 115(a) addresses
endangerment of public health or welfare in foreign countries from
pollution emitted in the United States. Pursuant to section 115, the
Administrator has neither received nor issued a formal notification
that emissions from New Mexico are endangering public health or welfare
in a foreign country. Section 126(a) of the Act requires new or
modified sources to notify neighboring states of potential impacts from
such sources. Under section 126(a)(1)(A), SIPs must require
notification to nearby, affected states of ``major proposed new (or
modified) sources'' when the source is subject to PSD. New Mexico's SIP
approved PSD program rules at <IP_ADDRESS>0 NMAC satisfy the requirements
of section 126(a)(1)(A) by providing that the NMED must send notice of
the proposed action on PSD permits to, among others, ``any state * * *
whose lands may be affected by emissions from the source or
modification.'' The State also has no pending obligations under section
126 of the Act.
    EPA is proposing to find that the New Mexico SIP meets the
requirements of section 110(a)(2)(D)(ii) with respect to the 1997 8-
hour ozone and PM2.5 NAAQS.
    Adequate personnel, funding, and authority, pursuant to section
110(a)(2)(E): The Department of the Environment Act provides that the
secretary of the NMED ``shall * * * employ and fix the compensation of
those persons necessary to discharge his duties * * *'' See NMSA 1978
9-7A-6(B). The NMED is also authorized to receive State appropriations
to implement environmental programs. See generally, NMSA 1978 9-7A.
There are Federal sources of funding for the implementation of the 1997
8-hour ozone and PM2.5 NAAQS, through, for example, the CAA
sections 103 and 105 grant funds. The NMED receives Federal funds on an
annual basis, under sections 103 and 105 of the Act, to support its air
quality programs. Additionally, the State provides funds equal to 40
percent of the 105 grant fees it receives.
    Fees collected for the Title V and non-Title V permit programs, and
other inspections, maintenance and renewals required of other air
pollution sources also provide necessary funds to help implement the
State's air programs. Information on permitting fees is provided in the
discussion for section 110(a)(2)(L) below. The Air Quality Control Act
designates the NMED as the State air pollution control agency for all
purposes under Federal legislation relating to air pollution and
provides the NMED with the power ``to accept, receive and administer
grants or other funds or gifts from public and private agencies,
including the Federal government, or from any person * * *'' See NMSA
1978 74-2-5.1(F). For more detail on funding sources, please see the
TSD.
    The Air Quality Control Act delegates authority to the EIB to
adopt, promulgate, publish, amend and repeal regulations consistent
with the Air Quality Control Act to attain and maintain national
ambient air quality standards and prevent or abate air pollution. See
NMSA 1978 74-2-5(B)(1). The Environmental Improvement Act provides the
NMED with the power ``to enforce the rules, regulations and orders
promulgated by the board * * *'' See NMSA 1978 74-1-6(F). The Air
Quality Control Act also gives the NMED the duty to ``develop and
present to the environmental improvement board or the local board a
plan for the regulation, control, prevention or abatement of air
pollution * * *'' and gives the EIB the authority to adopt such a plan.
See NMSA 1978 74-2-5.1(H) and NMSA 1978 74-2-5(B)(2). Therefore, the
State has demonstrated it has adequate authority under its rules and
regulations to carry out its SIP obligations with respect to the 1997
8-hour ozone and PM2.5 NAAQS.
    As discussed previously in this rulemaking with regards to section
110(a)(2)(C), on November 10, 2010, New Mexico adopted revisions to the
State's PSD rules to implement the GHG thresholds established in EPA's
GHG Tailoring Rule and submitted the corresponding SIP revision to EPA
on December 1, 2010. EPA proposed approval of these revisions on April
14, 2011 (76 FR 20907). The GHG Tailoring Rule implemented thresholds
establishing applicability of the PSD permitting program to GHG-
emitting sources only if they emit GHGs in amounts above the 75,000/
100,000 tpy of carbon dioxide equivalent (denoted CO2e).
Thus sources in affected states, including New Mexico, will not be
subject to Federal or state requirements to obtain permits at the lower
100/250 tpy level. The Tailoring Rule thresholds were designed to
relieve the overwhelming administrative burdens and costs associated
with the dramatic increase in permitting burden that would have
resulted from applying PSD at the statutory levels (100/250 tpy). EPA
intends to take final action on the above proposal in a separate
rulemaking no later than EPA's final action on New Mexico's 1997 ozone
and PM2.5 infrastructure SIP submittals. We are proposing to
find that the current New Mexico PSD SIP meets section 110(a)(2)(C)
with respect to the 1997 8-hour ozone and PM2.5 NAAQS, as
long as we are able to fully approve New Mexico's GHG submittal on or
before our final action on New Mexico's 1997 ozone and PM2.5
infrastructure SIP submittals; or, in the alternative, we are proposing
to find that the current New Mexico PSD SIP meets section 110(a)(2)(C)
with respect to the 1997 8-hour ozone and PM2.5 NAAQS on the
basis of the State's April 19, 2011 clarification letter.
    EPA is proposing to find that the New Mexico SIP meets the
requirements of section 110(a)(2)(E) with respect to the 1997 8-hour
ozone and PM2.5 NAAQS.
    Stationary source monitoring system, pursuant to section
110(a)(2)(F): New Mexico's regulations at 20.2 NMAC parts 5, 7-8, 10-
20, 30-34, 40-41, and 72-74 require source monitoring for compliance,
recordkeeping and reporting, and provide for enforcement with respect
to all the NAAQS and their precursors. These source monitoring program
requirements generate data for, among other pollutants, ozone,
PM2.5, and the precursors to these pollutants (VOCs,
NOX, and SO2).

    Under the New Mexico SIP rules, the NMED is required to analyze the
emissions data from point, area, mobile, and biogenic (natural)
sources. The NMED uses this data to track progress towards maintaining
the NAAQS, develop control and maintenance strategies, identify sources
and general emission levels, and determine compliance with New Mexico
and EPA requirements. The State's emissions data are available on the
NMED Web site (http://www.nmenv.state.nm.us). These rules have been
approved by EPA into the SIP. A list of the rules and Federal Register
citations are provided in the TSD.
    There are two requirements that New Mexico must meet regarding
emissions inventories (EIs): the EI requirement for nonattainment
areas, and the requirement to submit annual EI data to EPA's National
Emissions Inventory (NEI) database. Because Nonattainment NSR is
outside the scope of this rulemaking, we are not addressing New
Mexico's EI for nonattainment areas in this proposed action. The NEI is
EPA's central repository for air emissions data. EPA published the Air
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the
requirements for collecting and reporting air emissions data (73 FR
76539). The AERR shortened the time states are given to report
emissions data from 17 to 12 months, giving states one calendar year to
submit emissions data. All states are required to submit a
comprehensive emissions inventory every three years and report
emissions for certain larger sources annually through EPA's online
Emissions Inventory System (EIS). States report emissions data for the
six criteria pollutants and the precursors that form them--nitrogen
oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate
matter, and volatile organic compounds. EPA compiles the emissions
data, supplementing it where necessary, and releases it to the general
public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. The NMED is current with their submittals to the
NEI database; the 2008 data was submitted to EPA in 2010. The State's
emissions data are also available on EPA's AirData Web site (http://www.epa.gov/air/data/index.html).\37\
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    \37\ The AirData Web site provides access to air pollution data
for the entire United States and produces reports and maps of air
pollution data based on criteria specified by the user.
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    EPA is proposing to find that the New Mexico SIP meets the
requirements of section 110(a)(2)(F) with respect to the 1997 8-hour
ozone and PM2.5 NAAQS.
    Emergency power, pursuant to section 110(a)(2)(G): Section
110(a)(2)(G) requires States to provide for authority to address
activities causing imminent and substantial endangerment to public
health, including contingency plans to implement the emergency episode
provisions in their SIPs. The Air Quality Control Act provides the NMED
with authority to address environmental emergencies, and the NMED has
contingency plans to implement emergency episode provisions in the SIP.
New Mexico promulgated the ``Air Pollution Episode Contingency Plan for
New Mexico,'' which includes contingency measures, and these provisions
were approved into the SIP on August 21, 1990 (55 FR 34013). The
criteria for ozone are based on a 1-hour average ozone level. These
episode criteria and contingency measures are adequate to address ozone
emergency episodes and are in the Federally approved SIP.
    As explained in the section of this rulemaking titled ``What Action
Is EPA Proposing?,'' in this rulemaking we are also proposing to make a
CFR codification technical correction to amend the table titled ``EPA
Approved Nonregulatory Provisions And Quasi-Regulatory Measures In The
New Mexico SIP'' under 40 CFR 52.1620(e), to include an entry for the
New Mexico Air Pollution Episode Contingency Plan approved by EPA into
the SIP on August 21, 1990 (see 55 FR 34013, 40 CFR 52.1639(a)). EPA is
proposing to make this CFR codification technical correction because it
clarifies that EPA previously approved the State's air pollution
episode provisions into the New Mexico SIP.
    The 2009 Infrastructure SIP Guidance for PM2.5
recommends that a state with at least one monitored 24-hour
PM2.5 value exceeding 140.4 [micro]g/m\3\ since 2006
establish an emergency episode plan and contingency measures to be
implemented should such level be exceeded again. The 2006-2010 ambient
air quality monitoring data \38\ for New Mexico do not exceed 140.4
[micro]g/m\3\. The PM2.5 levels have consistently remained
below this level (140.4 [micro]g/m\3\), and furthermore, the State has
appropriate general emergency powers to address PM2.5
related episodes to protect the environment and public health. Given
the State's low monitored PM2.5 levels, EPA is proposing the
State is not required to submit an emergency episode plan and
contingency measures at this time, for the 1997 PM2.5
standard. Additional detail is provided in the TSD.
---------------------------------------------------------------------------

    \38\ The ozone and PM data are available through AQS. The AQS
data for PM are provided in the docket for this rulemaking.
---------------------------------------------------------------------------

    EPA is proposing to find that the New Mexico SIP meets the
requirements of section 110(a)(2)(G) with respect to the 1997 8-hour
ozone and PM2.5 NAAQS.
    Future SIP revisions, pursuant to section 110(a)(2)(H): The Air
Quality Control Act provides that the EIB shall ``* * * adopt,
promulgate, publish, amend, and repeal regulations consistent with the
Air Quality Control Act to attain and maintain national ambient air
quality standards and prevent or abate air pollution * * *.'' See NMSA
1978 74-2-5(B)(1). The Environmental Improvement Act provides that the
NMED shall, ``* * * enforce the rules, regulations and orders
promulgated by the board * * *.'' See NMSA 1978 74-1-6(F). In addition,
the Air Quality Control Act requires the NMED to, ``* * * advise,
consult, contract with and cooperate with local authorities, other
states, the Federal government and other interested persons or groups
in regard to matters of common interest in the field of air quality
control * * *'' See NMSA 1978 74-2-5.2(B). Thus, New Mexico has the
authority to revise its SIP from time to time as may be necessary to
take into account revisions of primary or secondary NAAQS, or the
availability of improved or more expeditious methods of attaining such
standards. Furthermore, New Mexico also has the authority under the
above provisions to revise its SIP in the event the EPA, pursuant to
the Act, finds the SIP to be substantially inadequate to attain the
NAAQS.
    EPA is proposing to find that the New Mexico SIP meets the
requirements of section 110(a)(2)(H) with respect to the 1997 8-hour
ozone and PM2.5 NAAQS.
    Consultation with government officials, pursuant to section
110(a)(2)(J): \39\ The Air Quality Control Act, as codified at NMSA
1978 74-2-6, provides that, ``no regulations or emission control
requirement shall be adopted until after a public hearing by the
environmental improvement board or the local board'' and provides that,
``at the hearing, the environmental improvement board or the local
board shall allow all interested persons reasonable opportunity to
submit data, views, or arguments orally or in writing and to examine
witnesses testifying at the hearing.'' See NMSA 1978 74-2-6(B) and (D).
In addition, the Air Quality Control Act provides that the NMED

shall have the power and duty to ``advise, consult, contract with and
cooperate with local authorities, other states, the Federal government
and other interested persons or groups in regard to matters of common
interest in the field of air quality control * * *'' See NMSA 1978 74-
2-5.2(B). The State's SIP approved 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, and Federal Land
Managers (FLM) whose lands may be affected by emissions from the source
or modification. The State's SIP approved PSD rules at <IP_ADDRESS>3 NMAC
require the NMED to consult with FLMs regarding permit applications for
sources impacting Class I Federal areas.\40\ Furthermore, the State of
New Mexico has committed in the SIP to consult continually with the
FLMs on the review and implementation of the visibility program and to
notify the FLM of any advance notification or early consultation with a
major new or modifying source prior to the submission of the permit
application.\41\ The State's SIP approved Transportation Conformity
rules at <IP_ADDRESS> and <IP_ADDRESS> NMAC require that interagency
consultation and opportunity for public involvement be provided before
making transportation conformity determinations and before adopting
applicable SIP revisions on transportation-related SIPs.\42\ These
rules are in the Federally-approved SIP.
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    \39\ Section 110(a)(2)(J) is divided into three segments:
Consultation with government officials; public notification; and PSD
and visibility protection.
    \40\ Areas designated as mandatory Class I Federal areas consist
of national parks exceeding 6,000 acres, wilderness areas and
national memorial parks exceeding 5,000 acres, and all international
parks that were in existence on August 7, 1977. CAA section 162(a).
    \41\ See 71 FR 4490, published January 27, 2006.
    \42\ See 65 FR 14877.
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    EPA is proposing to find that the New Mexico SIP meets the
requirements of this portion of section 110(a)(2)(J) with respect to
the 1997 8-hour ozone and PM2.5 NAAQS.
    Public notification if NAAQS are exceeded, pursuant to section
110(a)(2)(J): Public notification begins with the air quality forecast,
which advises the public of conditions capable of exceeding the NAAQS
(see 54 FR 9783). New Mexico's provisions regarding public notification
of instances or areas in which any primary NAAQS was exceeded were
approved into the SIP on August 24, 1983 (48 FR 38466). In addition,
the NMED air monitoring Web site provides live air quality data for
each of the monitoring stations in New Mexico.\43\ The Web site also
provides information on the health effects of ozone, particulate
matter, and other criteria pollutants.
---------------------------------------------------------------------------

    \43\ Please see http://air.nmenv.state.nm.us/.
---------------------------------------------------------------------------

    EPA is proposing to find that the New Mexico SIP meets the
requirements of this portion of section 110(a)(2)(J) with respect to
the 1997 8-hour ozone and PM2.5 NAAQS.
    PSD and visibility protection, pursuant to section 110(a)(2)(J):
This portion of section 110(a)(2)(J) in part requires that a state's
SIP meet the applicable requirements of section 110(a)(2)(C) as
relating to PSD programs. As detailed in the subsection titled
``Program for enforcement of control measures and regulation of the
modification and construction of any stationary source * * * pursuant
to section 110(a)(2)(C)'' of this rulemaking and in the TSD, New
Mexico's PSD program was conditionally approved into the SIP on
February 27, 1987 (52 FR 5964). New Mexico has since then met the
conditions of our conditional approval, so we are proposing to convert
our conditional approval into a full approval. The State's PSD program
is in the SIP (52 FR 5964, 53 FR 44191, 55 FR 43013, 56 FR 20137, 61 FR
53639, 68 FR 11316, 68 FR 74483, 72 FR 50879, and 75 FR 72688). In
addition, to meet the requirements of 110(a)(2)(C) for the 1997 ozone
standard, EPA believes the State must have updated its PSD rules to
treat NOX as a precursor for ozone. On November 26, 2010,
EPA approved a SIP revision that modified New Mexico's PSD SIP for the
1997 8-hour ozone standard to include NOX as an ozone
precursor (75 FR 72688). To implement section 110(a)(2)(C) for the 1997
PM2.5 standard, EPA believes that States should
appropriately implement the interim policy for preconstruction review,
as described above. During the transition to SIP-approved PSD
requirements for PM2.5, NMED submitted a letter to EPA
clarifying that: (1) It does not use PM10 as a surrogate for
PM2.5 in its permitting programs; (2) it requires that
applicants include PM2.5 modeling and emissions in their PSD
and minor source permit applications; and (3) the record for the NMED's
permitting decision includes an explanation of how PM2.5
emissions have been appropriately analyzed and estimated. Furthermore,
the State has recently proposed to revise their rules to address
PM2.5 in their PSD program, and expects to adopt these
revisions in May 2011. The State is planning to submit to EPA these
revised PSD rules as a SIP revision by May 16, 2011. The State's minor
source permitting requirements were approved at 38 FR 12702. The
portions of the State's PSD program related to permitting GHGs at or
above the Tailoring Rule thresholds are approvable in light of the PSD
SIP Narrowing Rule. As discussed above, regarding GHG permitting, EPA
intends to take final action on the December 1, 2010 submittal in a
separate rulemaking no later than EPA's final action on New Mexico's
1997 ozone and PM2.5 infrastructure SIP submittals. We are
proposing to find that the current New Mexico PSD SIP meets section
110(a)(2)(C) with respect to the 1997 8-hour ozone and PM2.5
NAAQS, as long as we are able to fully approve New Mexico's GHG
submittal on or before our final action on New Mexico's 1997 ozone and
PM2.5 infrastructure SIP submittals; or, in the alternative,
we are proposing to find that the current New Mexico PSD SIP meets
section 110(a)(2)(C) with respect to the 1997 8-hour ozone and
PM2.5 NAAQS on the basis of the State's April 19, 2011
clarification letter. EPA is proposing to find that the New Mexico SIP
meets the PSD requirement of section 110(a)(2)(C). A more detailed
discussion is provided in subsection 110(a)(2)(C) above and in the TSD.
EPA is proposing to find that the New Mexico SIP meets the requirements
of this portion of section 110(a)(2)(J) with respect to the 1997 8-hour
ozone and PM2.5 NAAQS.
    EPA approved New Mexico's Visibility Protection Plan and approved a
Long-Term Strategy for Visibility Protection into the New Mexico SIP on
January 27, 2006 (71 FR 4490). The State submitted a Regional Haze SIP
to EPA on December 1, 2003. On January 15, 2009, we published a
``Finding of Failure to Submit State Implementation Plans Required by
the 1999 regional haze rule'' (74 FR 2392). We found that New Mexico
had failed to submit for our review and approval a complete SIP for
improving visibility in the nation's national parks and wilderness
areas by the required date of December 17, 2007. Specifically, we found
that New Mexico had failed to submit the plan elements required by 40
CFR 51.309(g),\44\ and the plan element required by 40 CFR
51.309(d)(4), which requires BART for stationary source emissions of
NOX and PM under either 40 CFR 51.308(e)(1) or
51.308(e)(2).\45\ On January 13, 2009, New Mexico submitted a letter to
EPA,

clarifying that they intended to submit a Regional Haze SIP revision in
2009 to address the requirements of 40 CFR 51.309(d)(4) and 40 CFR
51.309(g).\46\ New Mexico has since stated that they intend to make
this necessary submission in 2011. To date, the State has not made a
Regional Haze SIP submission. The State proposed to adopt a Regional
Haze SIP on February 28, 2011, and the public comment period will run
through June 1, 2011. EPA will take action separately on New Mexico's
Regional Haze SIP once the State makes this submittal. With regard to
the applicable requirements for visibility protection, EPA recognizes
that States are subject to visibility and regional haze program
requirements under Part C of the Act (which includes sections 169A and
169B). In the event of the establishment of a new NAAQS, however, the
visibility and regional haze program requirements under part C do not
change. Thus, we find that there is no new visibility obligation
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes
effective; and as such, visibility protection requirements are not
relevant for purposes of this action. This would be the case even in
the event a secondary PM2.5 NAAQS for visibility is
established, because this NAAQS would not affect visibility
requirements under part C. EPA is therefore proposing to find that the
New Mexico SIP meets the requirements of this portion of section
110(a)(2)(J) with respect to the 1997 8-hour ozone and PM2.5
NAAQS.
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    \44\ 40 CFR 51.309(g) concerns the reasonable progress
requirements for areas other than the 16 Class I areas covered by
the Grand Canyon Visibility Transport Commission Report.
    \45\ New Mexico has the option to submit a Regional Haze SIP
under either section 51.308 or section 51.309.
    \46\ January 13, 2009, letter from Bill Richardson, Governor of
New Mexico, to Mayor Richard Greene, Regional Administrator, EPA
Region 6. This letter is in the docket for this rulemaking.
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    Air quality modeling and submission of data, pursuant to section
110(a)(2)(K): The Air Quality Control Act authorizes NMED to ``develop
facts and make investigations and studies,'' thereby providing for the
functions of environmental air quality assessment. As an example, New
Mexico submitted modeling and control measures in a SIP revision to
demonstrate attainment of the 1997 8-hour ozone standard.\47\ The
modeling and control measures in the SIP revision were approved by EPA
and adopted into the SIP.
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    \47\ See 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).
---------------------------------------------------------------------------

    This section of the Act also requires that a SIP provide for the
submission of data related to such air quality modeling to the EPA upon
request. The Air Quality Control Act authorizes NMED to cooperate with
the Federal government in regard to matters of common interest in the
field of air quality control, thereby allowing it to make this
submission to EPA. See NMSA 1978 74-2-5.2(B).
    EPA is proposing to find that the New Mexico SIP meets the
requirements of section 110(a)(2)(K) with respect to the 1997 8-hour
ozone and PM2.5 NAAQS.
    Permitting fees, pursuant to section 110(a)(2)(L): 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. See NMSA 1978 74-2-7. New Mexico's
Permit Fee System was approved by EPA on July 17, 1991 (56 FR 32511).
New Mexico's Permit Fee System implements a fee system for all
preconstruction air permits issued by NMED. New Mexico's regulations
for construction permit fees are found at 20.2.75 NMAC. The State's
Title V program 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. EPA is reviewing the New Mexico Title V
program, including the Title V fee structure, separate from this
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 program.
    EPA is proposing to find that the New Mexico SIP meets the
requirements of section 110(a)(2)(L) with respect to the 1997 8-hour
ozone and PM2.5 NAAQS.
    Consultation/participation by affected local entities, pursuant to
section 110(a)(2)(M): As indicated above, the Air Quality Control Act
provides that, ``no regulations or emission control requirement shall
be adopted until after a public hearing by the environmental
improvement board or the local board'' and provides that, ``at the
hearing, the environmental improvement board or the local board shall
allow all interested persons reasonable opportunity to submit data,
views, or arguments orally or in writing and to examine witnesses
testifying at the hearing.'' See NMSA 1978 74-2-6(B) and (D). In
addition, the Air Quality Control Act provides that the NMED shall have
the power and duty to ``advise, consult, contract with and cooperate
with local authorities, other states, the Federal government and other
interested persons or groups in regard to matters of common interest in
the field of air quality control * * *'' See NMSA 1978 74-2-5.2(B). New
Mexico's SIP approved PSD regulations 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, and FLMs whose lands may be
affected by emissions from the source or modification. New Mexico's SIP
approved Transportation Conformity regulations at <IP_ADDRESS> and
<IP_ADDRESS> NMAC require that interagency consultation and opportunity
for public involvement be provided before making transportation
conformity determinations and before adopting applicable SIP revisions
on transportation-related SIPs.\48\
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    \48\ See 65 FR 14877.
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    EPA is proposing to find that the New Mexico SIP meets the
requirements of section 110(a)(2)(M) with respect to the 1997 8-hour
ozone and PM2.5 NAAQS.

IV. Proposed Action

    We are proposing to approve the submittals provided by the State of
New Mexico to demonstrate that the New Mexico SIP meets the
requirements of Section 110(a)(1) and (2) of the Act for the 1997 8-
hour ozone and PM2.5 NAAQS. We are proposing to find that
the current New Mexico SIP meets the infrastructure elements listed
below:

    Emission limits and other control measures (110(a)(2)(A) of the
Act);
    Ambient air quality monitoring/data system (110(a)(2)(B) of the
Act);
    Program for enforcement of control measures (110(a)(2)(C) of the
Act);
    Interstate and international transport (110(a)(2)(D)(ii) of the
Act);
    Adequate resources (110(a)(2)(E) of the Act);
    Stationary source monitoring system (110(a)(2)(F) of the Act);
    Emergency power (110(a)(2)(G) of the Act);
    Future SIP revisions (110(a)(2)(H) of the Act);
    Consultation with government officials (110(a)(2)(J) of the Act);
    Public notification (110(a)(2)(J) of the Act);
    Prevention of significant deterioration and visibility protection
(110(a)(2)(J) of the Act);
    Air quality modeling data (110(a)(2)(K) of the Act);
    Permitting fees (110(a)(2)(L) of the Act); and
    Consultation/participation by affected local entities (110(a)(2)(M)
of the Act).
    EPA is also proposing to make CFR codification technical
corrections to amend the following:
    1. The table titled ``EPA Approved Nonregulatory Provisions And
Quasi-

Regulatory Measures In The New Mexico SIP,'' found under 40 CFR
52.1620(e), by including an entry for New Mexico's already SIP approved
Air Pollution Episode Contingency Plan.
    2. The table titled ``EPA Approved New Mexico Regulations,'' found
under 40 CFR 52.1620(c), by (i) deleting entries for part 70 (Operating
Permits) and part 71 (Operating Permit Emission Fees) of 20.2 NMAC and
(ii) correcting the currently listed EPA approval date for the
recodification of New Mexico's air quality regulations in the SIP.
    3. 40 CFR 52.1640(c)(66)(i)(B), by amending the paragraph such that
it correctly identifies the State regulations submitted by the State
and approved by EPA into the New Mexico SIP.
    4. 40 CFR 52.1634(a) and 40 CFR 52.1640(c)(39), by amending each
paragraph such that it identifies that New Mexico has fully met all
conditions of our February 27, 1987 conditional approval of New
Mexico's PSD program such that our conditional approval is converted to
a full approval.
    We are also proposing to convert our February 27, 1987, conditional
approval of New Mexico's PSD program (52 FR 5964), to a full approval
based on the November 2, 1988, approval of New Mexico's stack height
regulations (53 FR 44191), at which point New Mexico fully met the
condition in the conditional approval.
    Lastly, EPA is proposing to approve a severable revision to
regulation 20.2.3 NMAC (Ambient Air Quality Standards), which was
submitted by New Mexico on November 2, 2006. The revision to 20.2.3
NMAC removes the state ambient air quality standards from being an
applicable requirement under the State's Title V permitting program,
found at 20.2.70 NMAC (Operating Permits). The revision also adds
language to ensure that sources being issued a permit under the State's
minor source permitting program, found at 20.2.72 NMAC (Operating
Permits), are required to continue to address the State's ambient air
quality standards in their application.
    EPA is proposing these actions in accordance with section 110 and
part C of the Act and EPA's regulations and is consistent with EPA
guidance.

V. 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 Clean Air Act; 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). In addition,
this rule does not have Tribal implications as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not
approved to apply in Indian country located in the state, and EPA notes
that it will not 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, Nitrogen dioxides, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.

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

    Dated: April 22, 2011.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2011-10569 Filed 4-29-11; 8:45 am]
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