[Federal Register Volume 76, Number 136 (Friday, July 15, 2011)]
[Rules and Regulations]
[Pages 41698-41705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17786]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2009-0647; FRL-9438-7]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving 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 determining that the 
current New Mexico State Implementation Plan (SIP) meets the following 
infrastructure elements which were subject to EPA's completeness 
findings pursuant to CAA section 110(k)(1) for the 1997 8-hour ozone 
NAAQS dated March 27, 2008, and the 1997 PM2.5 NAAQS dated 
October 22, 2008: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), 
(J), (K), (L), and (M). EPA is also approving 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 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). Lastly, EPA is making 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: This rule is effective on August 15, 2011.

ADDRESSES: EPA established a docket for this action under Docket ID No. 
EPA-R06-OAR-2009-0647. All documents in the docket are listed at http://www.regulations.gov. Although listed in the index, some information is 
not publicly available, e.g., Confidential Business Information or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically 
through 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 Freedom of 
Information Act (FOIA) Review Room between the hours of 8:30 a.m. and 
4:30 p.m. weekdays except for legal holidays. Contact the person listed 
in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill 
Deese at 214-665-7253 to make an appointment. Please make the 
appointment at least two working days in advance of your visit. There 
is a fee of 15 cents per page for making photocopies of documents. On 
the day of the visit, please check in at the EPA Region 6 reception 
area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

FOR FURTHER INFORMATION CONTACT: Ms. Dayana Medina, Air Planning 
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7241; 
fax number 214-665-6762; e-mail address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means EPA.

Table of Contents

I. Background
II. Additional Background Information
III. What action is EPA taking?
IV. Final Action

[[Page 41699]]

V. Statutory and Executive Order Reviews

I. Background

    The background for today's actions is discussed in detail in our 
May 2, 2011, proposal to approve submittals from the State of New 
Mexico pursuant to the CAA 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) NAAQS (76 FR 24421). In it, we proposed to 
find that the current New Mexico SIP meets the provisions of the CAA 
sections 110(a)(1) and 110(a)(2) (i.e., 110(a)(2)(A)-(C), (D)(ii), (E)-
(H), and (J)-(M)) for the 1997 ozone and 1997 PM2.5 NAAQS. 
We also proposed to approve a revision to regulation 20.2.3 NMAC 
(Ambient Air Quality Standards) into the New Mexico SIP, to remove the 
state ambient air quality standards from being an applicable 
requirement under the State's Title V permitting program. EPA also 
proposed 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. Lastly, EPA 
proposed to make several CFR codification technical corrections to 
amend the description of the approved New Mexico SIP.
    Our May 2, 2011, proposal provides a detailed description of the 
revisions and the rationale for EPA's proposed actions, together with a 
discussion of the opportunity to comment. The public comment period for 
these actions closed on June 1, 2011, and we did not receive any 
comments. For more information, please see our proposed rulemaking, at 
76 FR 24421, the Technical Support Document, and other supporting 
documentation available in the electronic docket for this action at 
http://www.regulations.gov (Docket Identification No. EPA-R06-OAR-2009-
0647).

II. Additional Background Information

    EPA is currently acting upon SIPs that address the infrastructure 
requirements of CAA section 110(a)(1) and (2) for ozone and 
PM2.5 NAAQS for various states across the country. 
Commenters on EPA's recent proposals for some states raised concerns 
about EPA statements that it was not addressing certain substantive 
issues in the context of acting on the infrastructure SIP 
submissions.\1\ The commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements that it would 
address two issues separately and not as part of actions on the 
infrastructure SIP submissions: (i) Existing provisions related to 
excess emissions during periods of start-up, shutdown, or malfunction 
at sources, that may be contrary to the CAA and EPA's policies 
addressing such excess emissions (``SSM''); and (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that purport to permit revisions to SIP approved emissions 
limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA (``director's 
discretion''). EPA notes that there are two other substantive issues 
for which EPA likewise stated that it would address the issues 
separately: (i) existing provisions for minor source new source review 
programs that may be inconsistent with the requirements of the CAA and 
EPA's regulations that pertain to such programs (``minor source NSR''); 
and (ii) existing provisions for Prevention of Significant 
Deterioration programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). In light of the comments, EPA now believes that its 
statements in various proposed actions on infrastructure SIPs with 
respect to these four individual issues should be explained in greater 
depth with respect to these issues. EPA notes that we did not receive 
comments on these issues in response to our New Mexico proposal (76 FR 
24421), but because of the concern raised in the context of action on 
other state infrastructure SIP submissions, EPA feels it important to 
further clarify our proposal.
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    \1\ See, Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5). EPA notes that 
these public comments on another proposal are not relevant to this 
rulemaking and do not have to be directly addressed in this 
rulemaking. EPA will respond to these comments in the appropriate 
rulemaking action to which they apply.
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    EPA intended the statements in the proposals concerning these four 
issues merely to be informational, and to provide general notice of the 
potential existence of provisions within the existing SIPs of some 
states that might require future corrective action. EPA did not want 
states, regulated entities, or members of the public to be under the 
misconception that the Agency's approval of the infrastructure SIP 
submission of a given state should be interpreted as a reapproval of 
certain types of provisions that might exist buried in the larger 
existing SIP for such state. Thus, for example, EPA explicitly noted 
that the Agency believes that some states may have existing SIP 
approved SSM provisions that are contrary to the CAA and EPA policy, 
but that ``in this rulemaking, EPA is not proposing to approve or 
disapprove any existing State provisions with regard to excess 
emissions during SSM of operations at facilities.'' EPA further 
explained, for informational purposes, that ``EPA plans to address such 
State regulations in the future.'' EPA made similar statements, for 
similar reasons, with respect to the director's discretion, minor 
source NSR, and NSR Reform issues. EPA's objective was to make clear 
that approval of an infrastructure SIP for these ozone and 
PM2.5 NAAQS should not be construed as explicit or implicit 
reapproval of any existing provisions that relate to these four 
substantive issues.
    Unfortunately, the commenters and others evidently interpreted 
these statements to mean that EPA considered action upon the SSM 
provisions and the other three substantive issues to be integral parts 
of acting on an infrastructure SIP submission, and therefore that EPA 
was merely postponing taking final action on the issue in the context 
of the infrastructure SIPs. This was not EPA's intention. To the 
contrary, EPA only meant to convey its awareness of the potential for 
certain types of deficiencies in existing SIPs, and to prevent any 
misunderstanding that it was reapproving any such existing provisions. 
EPA's intention was to convey its position that the statute does not 
require that infrastructure SIPs address these specific substantive 
issues in existing SIPs and that these issues may be dealt with 
separately, outside the context of acting on the infrastructure SIP 
submission of a state. To be clear, EPA did not mean to imply that it 
was not taking a full final agency action on the infrastructure SIP 
submission with respect to any substantive issue that EPA considers to 
be a required part of acting on such submissions under section 110(k) 
or under section 110(c). Given the confusion evidently resulting from 
EPA's statements, however, we want to explain more fully the Agency's 
reasons for concluding that these four potential substantive issues in 
existing SIPs may be addressed separately.
    The requirement for the SIP submissions at issue arises out of CAA 
section 110(a)(1). That provision

[[Page 41700]]

requires that states must make a SIP submission ``within 3 years (or 
such shorter period as the Administrator may prescribe) after the 
promulgation of a national primary ambient air quality standard (or any 
revision thereof)'' and that these SIPS are to provide for the 
``implementation, maintenance, and enforcement'' of such NAAQS. Section 
110(a)(2) includes a list of specific elements that ``[e]ach such 
plan'' submission must meet. EPA has historically referred to these 
particular submissions that states must make after the promulgation of 
a new or revised NAAQS as ``infrastructure SIPs.'' This specific term 
does not appear in the statute, but EPA uses the term to distinguish 
this particular type of SIP submission designed to address basic 
structural requirements of a SIP from other types of SIP submissions 
designed to address other different requirements, such as 
``nonattainment SIP'' submissions required to address the nonattainment 
planning requirements of part D, ``regional haze SIP'' submissions 
required to address the visibility protection requirements of CAA 
section 169A, new source review permitting program submissions required 
to address the requirements of part D, and a host of other specific 
types of SIP submissions that address other specific matters.
    Although section 110(a)(1) addresses the timing and general 
requirements for these infrastructure SIPs, and section 110(a)(2) 
provides more details concerning the required contents of these 
infrastructure SIPs, EPA believes that many of the specific statutory 
provisions are facially ambiguous. In particular, the list of required 
elements provided in section 110(a)(2) contains a wide variety of 
disparate provisions, some of which pertain to required legal 
authority, some of which pertain to required substantive provisions, 
and some of which pertain to requirements for both authority and 
substantive provisions.\2\ Some of the elements of section 110(a)(2) 
are relatively straightforward, but others clearly require 
interpretation by EPA through rulemaking, or recommendations through 
guidance, in order to give specific meaning for a particular NAAQS.\3\
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    \2\ For example, section 110(a)(2)(E) provides that states must 
provide assurances that they have adequate legal authority under 
state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a substantive program to address 
certain sources as required by part C of the CAA; section 
110(a)(2)(G) provides that states must have both legal authority to 
address emergencies and substantive contingency plans in the event 
of such an emergency.
    \3\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 
that each state's SIP contains adequate provisions to prevent 
significant contribution to nonattainment of the NAAQS in other 
states. This provision contains numerous terms that require 
substantial rulemaking by EPA in order to determine such basic 
points as what constitutes significant contribution. See, e.g., 
``Rule To Reduce Interstate Transport of Fine Particulate Matter and 
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; 
Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162 
(May 12, 2005) (defining, among other things, the phrase 
``contribute significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) states that ``each'' SIP 
submission must meet the list of requirements therein, EPA has long 
noted that this literal reading of the statute is internally 
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 
SIP requirements that could not be met on the schedule provided for 
these SIP submissions in section 110(a)(1).\4\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Similarly, EPA 
has previously decided that it could take action on different parts of 
the larger, general ``infrastructure SIP'' for a given NAAQS without 
concurrent action on all subsections, such as section 110(a)(2)(D)(i), 
because the Agency bifurcated the action on these latter ``interstate 
transport'' provisions within section 110(a)(2) and worked with states 
to address each of the four prongs of section 110(a)(2)(D)(i) with 
substantive administrative actions proceeding on different tracks with 
different schedules.\5\ This illustrates that EPA may conclude that 
subdividing the applicable requirements of section 110(a)(2) into 
separate SIP actions may sometimes be appropriate for a given NAAQS 
where a specific substantive action is necessitated, beyond a mere 
submission addressing basic structural aspects of the state's SIP. 
Finally, EPA notes that not every element of section 110(a)(2) would be 
relevant, or as relevant, or relevant in the same way, for each new or 
revised NAAQS and the attendant infrastructure SIP submission for that 
NAAQS. For example, the monitoring requirements that might be necessary 
for purposes of section 110(a)(2)(B) for one NAAQS could be very 
different than what might be necessary for a different pollutant. Thus, 
the content of an infrastructure SIP submission to meet this element 
from a state might be very different for an entirely new NAAQS, versus 
a minor revision to an existing NAAQS.\6\
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    \4\ See, e.g., Id., 70 FR 25162, at 63-65 (May 12, 2005) 
(explaining relationship between timing requirement of section 
110(a)(2)(D) versus section 110(a)(2)(I)).
    \5\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM2.5 NAAQS. See, ``Guidance for State 
Implementation Plan (SIP) Submissions to Meet Current Outstanding 
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards,'' from 
William T. Harnett, Director Air Quality Policy Division OAQPS, to 
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \6\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirement 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need to address the requirements of section 110(a)(2)(G) 
with respect to emergency episodes, as such requirements would not be 
limited to nonattainment areas. As this example illustrates, each type 
of SIP submission may implicate some subsections of section 110(a)(2) 
and not others.
    Given the potential for ambiguity of the statutory language of 
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 
to interpret that language in the context of acting on the 
infrastructure SIPs for a given NAAQS. Because of the inherent 
ambiguity of the list of requirements in section 110(a)(2), EPA has 
adopted an approach in which it reviews infrastructure SIPs against 
this list of elements ``as applicable.'' In other words, EPA assumes 
that Congress could not have intended that each and every SIP 
submission, regardless of the purpose of the submission or the NAAQS in 
question, would meet each of the requirements, or meet each of them in 
the same way. EPA elected to use guidance to make recommendations for 
infrastructure SIPs for these NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS.\7\ Within this

[[Page 41701]]

guidance document, EPA described the duty of states to make these 
submissions to meet what the Agency characterized as the 
``infrastructure'' elements for SIPs, which it further described as the 
``basic SIP requirements, including emissions inventories, monitoring, 
and modeling to assure attainment and maintenance of the standards.'' 
\8\ As further identification of these basic structural SIP 
requirements, ``attachment A'' to the guidance document included a 
short description of the various elements of section 110(a)(2) and 
additional information about the types of issues that EPA considered 
germane in the context of such infrastructure SIPs. EPA emphasized that 
the description of the basic requirements listed on attachment A was 
not intended ``to constitute an interpretation of '' the requirements, 
and was merely a ``brief description of the required elements.'' \9\ 
EPA also stated its belief that with one exception, these requirements 
were ``relatively self explanatory, and past experience with SIPs for 
other NAAQS should enable States to meet these requirements with 
assistance from EPA Regions.'' \10\ For the one exception to that 
general assumption, however, i.e., how states should proceed with 
respect to the requirements of section 110(a)(2)(G) for the 1997 
PM2.5 NAAQS, EPA gave much more specific recommendations. 
But for other infrastructure SIP submittals, and for certain elements 
of the submittals for the 1997 PM2.5 NAAQS, EPA assumed that 
each State would work with its corresponding EPA regional office to 
refine the scope of a State's submittal based on an assessment of how 
the requirements of section 110(a)(2) should reasonably apply to the 
basic structure of the State's SIP for the NAAQS in question.
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    \7\ See, ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director Air Quality Policy Division, to Air Division Directors, 
Regions I-X, dated October 2, 2007 (the ``2007 Guidance''). EPA 
issued comparable guidance for the 2006 PM2.5 NAAQS 
entitled ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
from William T. Harnett, Director Air Quality Policy Division, to 
Regional Air Division Directors, Regions I-X, dated September 25, 
2009 (the ``2009 Guidance'').
    \8\ Id., at page 2.
    \9\ Id., at attachment A, page 1.
    \10\ Id., at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicates that the statute is not so ``self explanatory,'' and 
indeed is sufficiently ambiguous that EPA needs to interpret it in 
order to explain why these substantive issues do not need to be 
addressed in the context of infrastructure SIPs and may be addressed 
at other times and by other means.
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    Significantly, the 2007 Guidance did not explicitly refer to the 
SSM, director's discretion, minor source NSR, or NSR Reform issues as 
among specific substantive issues EPA expected states to address in the 
context of the infrastructure SIPs, nor did EPA give any more specific 
recommendations with respect to how states might address such issues 
even if they elected to do so. The SSM and director's discretion issues 
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform 
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however, 
EPA did not indicate to states that it intended to interpret these 
provisions as requiring a substantive submission to address these 
specific issues in the context of the infrastructure SIPs for these 
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that 
the states should make submissions in which they established that they 
have the basic SIP structure necessary to implement, maintain, and 
enforce the NAAQS. EPA believes that states can establish that they 
have the basic SIP structure, notwithstanding that there may be 
potential deficiencies within the existing SIP. Thus, EPA's proposals 
mentioned these issues not because the Agency considers them issues 
that must be addressed in the context of an infrastructure SIP as 
required by section 110(a)(1) and (2), but rather because EPA wanted to 
be clear that it considers these potential existing SIP problems as 
separate from the pending infrastructure SIP actions.
    EPA believes that this approach to the infrastructure SIP 
requirement is reasonable, because it would not be feasible to read 
section 110(a)(1) and (2) to require a top to bottom, stem to stern, 
review of each and every provision of an existing SIP merely for 
purposes of assuring that the state in question has the basic 
structural elements for a functioning SIP for a new or revised NAAQS. 
Because SIPs have grown by accretion over the decades as statutory and 
regulatory requirements under the CAA have evolved, they may include 
some outmoded provisions and historical artifacts that, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA considers the overall effectiveness of the 
SIP. To the contrary, EPA believes that a better approach is for EPA to 
determine which specific SIP elements from section 110(a)(2) are 
applicable to an infrastructure SIP for a given NAAQS, and to focus 
attention on those elements that are most likely to need a specific SIP 
revision in light of the new or revised NAAQS. Thus, for example, EPA's 
2007 Guidance specifically directed states to focus on the requirements 
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of 
the absence of underlying EPA regulations for emergency episodes for 
this NAAQS and an anticipated absence of relevant provisions in 
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of 
section 110(a)(1) and (2) because the statute provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow the Agency to take appropriate 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or otherwise to comply with the CAA.\11\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\12\ Significantly, EPA's 
determination that an action on the infrastructure SIP is not the 
appropriate time and place to address all potential existing SIP 
problems does not preclude the Agency's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action at a 
later time. For example, although it may not be appropriate to require 
a state to eliminate all existing inappropriate director's discretion 
provisions in the course of acting on the infrastructure SIP, EPA 
believes that section 110(a)(2)(A) may be among the statutory bases 
that the Agency cites in the course of addressing the issue in a 
subsequent action.\13\
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    \11\ EPA has recently issued a SIP call to rectify a specific 
SIP deficiency related to the SSM issue. See, ``Finding of 
Substantial Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
    \12\ EPA has recently utilized this authority to correct errors 
in past actions on SIP submissions related to PSD programs. See, 
``Limitation of Approval of Prevention of Significant Deterioration 
Provisions Concerning Greenhouse Gas Emitting-Sources in State 
Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). 
EPA has previously used its authority under CAA 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \13\ EPA has recently disapproved a SIP submission from Colorado 
on the grounds that it would have included a director's discretion 
provision inconsistent with CAA requirements, including section 
110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) 
(proposed disapproval of director's discretion provisions); 76 FR 
4540 (January 26, 2011) (final disapproval of such provisions).

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[[Page 41702]]

III. What action is EPA taking?

    EPA is approving the New Mexico SIP submittals dated December 10, 
2007, and March 3, 2008, 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. We are determining that the following 
section 110(a)(2) elements are contained in the current New Mexico SIP: 
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)).
    In conjunction with our determination that the New Mexico SIP meets 
the section 110(a)(1) and (2) infrastructure SIP elements listed above, 
we are also approving 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), 
adding 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 also includes language in 
20.2.3.9 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 permitting program is outside the scope of the New 
Mexico SIP, and has not been approved by EPA into the New Mexico SIP, 
approval of the revision to 20.2.3 NMAC is appropriate and will not 
constitute a relaxation of the current New Mexico SIP. EPA is approving 
the portion of the November 2, 2006 submittal that revises 20.2.3 NMAC, 
as indicated above, because it clarifies the permitting requirements 
under the New Mexico SIP. The revision to 20.2.3 NMAC we are approving 
into the SIP is severable from the other portions of the November 2, 
2006 SIP submittal. At this time, EPA is not taking action on other 
portions of the November 2, 2006 SIP revision submitted by NMED; EPA 
intends to act on the other revisions at a later time.
    EPA is also correcting an administrative oversight by now 
converting our February 27, 1987, conditional approval of New Mexico's 
PSD program (52 FR 5964), to a full approval based on our November 2, 
1988, approval of New Mexico's stack height regulations (53 FR 44191). 
Upon our approval of New Mexico's stack height regulations on November 
2, 1988, 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. 
The fact that EPA had not formally converted the conditional approval 
to a full approval until now had no impact on the State's authority to 
implement the PSD program in the interim.
    Lastly, EPA is making four CFR codification technical corrections 
to amend the following: (1) 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) changing the EPA approval date for the 
recodification of New Mexico's air quality regulations in the SIP from 
the currently listed November 25, 1997 date to the correct date of 
September 26, 1997; (2) 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 Air 
Pollution Episode Contingency Plan approved by EPA into the SIP on 
August 21, 1990; (3) 40 CFR 52.1634(a), by amending the 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; and (4) 
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. We are making the above CFR 
corrections to make clear 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.

IV. Final Action

    We are approving the submittals provided by the State of New Mexico 
to demonstrate that the New Mexico SIP meets the following requirements 
of Section 110(a)(1) and (2) of the Act:
    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 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 approving 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 also formally 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.

[[Page 41703]]

    Lastly, EPA is making CFR codification technical corrections to 
amend the following:
    1. 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) changing the EPA approval date for the recodification of New 
Mexico's air quality regulations in the SIP from the currently listed 
November 25, 1997 date to the correct date of September 26, 1997.
    2. 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 Air Pollution 
Episode Contingency Plan approved by EPA into the SIP on August 21, 
1990.
    3. 40 CFR 52.1634(a), by amending the 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.
    4. 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.
    EPA is approving these actions in accordance with section 110 of 
the Act and EPA's regulations and consistent with EPA guidance.

V. Statutory and Executive Order Reviews

    Under the CAA, 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 CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by September 13, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

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.

    Dated: June 30, 2011.
Al Armendariz,
Regional Administrator, Region 6.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart GG--New Mexico

0
2. Section 52.1620 is amended:
0
a. In paragraph (c), under the first table entitled ``New Mexico 
Administrative Code (NMAC) Title 20--Environmental Protection Chapter 
2--Air Quality,'' by removing the entries for Part 70 and Part 71 and 
by revising the entries for Part 2, Part 3, Part 5, Part 8, Part 10, 
Part 11 through Part 22, Part 30 through Part 34, Part 40, Part 41, 
Part 60, Part 61, Part 72, Part 75, and Part 80;
0
b. In paragraph (e), under the second table entitled ``EPA Approved 
Nonregulatory Provisions and Quasi-Regulatory Measures In The New 
Mexico SIP,'' by adding to the end of the table a new entry for ``Air 
Pollution Episode Contingency Plan for New Mexico'' followed by a new 
entry for ``Infrastructure for the 1997 Ozone and 1997 PM2.5 NAAQS''.
    The amendments and additions read as follows:


Sec.  52.1620  Identification of plan.

* * * * *
     (c) * * *

[[Page 41704]]



                                                           EPA-Approved New Mexico Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                State
          State citation                Title/subject         approval/               EPA approval date                           Comments
                                                           effective date
--------------------------------------------------------------------------------------------------------------------------------------------------------
                             New Mexico Administrative Code (NMAC) Title 20--Environmental Protection Chapter 2--Air Quality
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
Part 2............................  Definitions..........      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
Part 3............................  Ambient Air Quality          9/6/2006  7/15/11,..............................  .....................................
                                     Standards.                            [Insert FR page number where document
                                                                            begins].
Part 5............................  Source Surveillance..      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
 
                                                                      * * * * * * *
Part 8............................  Emissions Leaving New      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Mexico.
Part 10...........................  Woodwaste Burners....      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
Part 11...........................  Asphalt Process            11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Equipment.
Part 12...........................  Cement Kilns.........      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
Part 13...........................  Gypsum Processing          11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Plants.
Part 14...........................  Particulate Emissions      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     From Coal Burning
                                     Equipment.
Part 15...........................  Pumice, Mica and           11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Perlite Process
                                     Equipment.
Part 16...........................  Nonferrous Smelters        11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     (New and Existing)-
                                     Particulate Matter.
Part 17...........................  Nonferrous Smelters        11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     (Existing)-
                                     Particulate Matter.
Part 18...........................  Oil Burning Equipment-     11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Particulate Matter.
Part 19...........................  Potash, Salt, or           11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Sodium Sulfate
                                     Processing Equipment-
                                     Particulate Matter.
Part 20...........................  Lime Manufacturing         11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Plants-Particulate
                                     Matter.
Part 21...........................  Fugitive Particulate       11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Matter Emissions
                                     from Nonferrous
                                     Smelters.
Part 22...........................  Fugitive Particulate       11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Matter Emissions
                                     from Roads within
                                     the Town of Hurley.
Part 30...........................  Kraft Mills..........      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
Part 31...........................  Coal Burning               11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Equipment-Sulfur
                                     Dioxide.
Part 32...........................  Coal Burning               11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Equipment-Nitrogen
                                     Dioxide.
Part 33...........................  Gas Burning Equipment-     11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Nitrogen Dioxide.
Part 34...........................  Oil Burning Equipment-     11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Nitrogen Dioxide.
Part 40...........................  Sulfuric Acid              11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Production Units-
                                     Sulfur Dioxide, Acid
                                     Mist and Visible
                                     Emissions.
Part 41...........................  Nonferrous Smelters-       11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Sulfur.
Part 60...........................  Open Burning.........      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
Part 61...........................  Smoke and Visible          11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Emissions.
Part 72...........................  Construction Permits.      11/30/1995  9/26/1997, 62 FR 50514................  Subparts I, II, III, and V in SIP.
 
                                                                      * * * * * * *
Part 75...........................  Construction Permit        11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Fees.
 
                                                                      * * * * * * *
Part 80...........................  Stack Heights........      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *
* * * * *

[[Page 41705]]



                                EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures In The New Mexico SIP
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                  Applicable
                                 geographic or     State submittal date/effective
    Name of SIP provision        nonattainment                  date                        EPA approval date                     Explanation
                                     area
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                       * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Air Pollution Episode          Statewide.......  7/7/1988.........................  8/21/1990, 55 FR 34013...........  .................................
 Contingency Plan for New
 Mexico.
Infrastructure for the 1997    Statewide.......  12/10/2007.......................  7/15/11, [Insert FR page number    Approval for 110(a)(2)(A), (B),
 Ozone and 1997 PM2.5 NAAQS.                     3/3/2008.........................   where document begins].            (C), (D)(ii), (E), (F), (G),
                                                                                                                        (H), (J), (K), (L), and (M).
--------------------------------------------------------------------------------------------------------------------------------------------------------



0
3. Section 52.1634 is amended by revising paragraph (a) to read as 
follows:


Sec.  52.1634  Significant deterioration of air quality.

    (a) 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 NMEID 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 
was converted to a full approval on July 15, 2011.
* * * * *

0
4. Section 52.1640 is amended by revising paragraph (c)(66)(i)(B) to 
read as follows:


Sec.  52.1640  Original identification of plan section.

* * * * *
    (c) * * *
    (66) * * *
    (i) * * *
    (B) 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.
* * * * *
[FR Doc. 2011-17786 Filed 7-14-11; 8:45 am]
BILLING CODE 6560-50-P