[Federal Register Volume 79, Number 238 (Thursday, December 11, 2014)]
[Proposed Rules]
[Pages 73512-73525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29091]


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 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

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

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R06-OAR-2011-0821, by one of the following methods:
     www.regulations.gov. Follow the online instructions.
     Email: Mr. Terry Johnson at [email protected].
     Mail or delivery: Mr. Guy Donaldson, Chief, Air Planning 
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 1200, Dallas, Texas 75202-2733. Deliveries are accepted only 
between the hours of 8 a.m. and 4 p.m. weekdays, and not on legal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2011-0821. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Planning Section 
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733. The files will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an 
appointment. If possible, please make the appointment at least two 
working days in advance of your visit. There will be a fee of 15 cents 
per page for making photocopies of documents. On the day of the visit, 
please check in at the EPA Region 6 reception area at 1445 Ross Avenue, 
Suite 700, Dallas, Texas.

FOR FURTHER INFORMATION CONTACT: Mr. Terry Johnson, Air Planning 
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone 214-665-2154; 
fax number 214-665-6762; email address [email protected] 
for information concerning the infrastructure SIP submittal for the 
2008 Pb NAAQS, or Mr. Alan Shar, telephone (214) 665-6691, email 
address [email protected] for information concerning the revision to 
the SIP to repeal the cement kilns rule.

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

Table of Contents

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

I. Background

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

[[Page 73513]]

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

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

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

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

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

[[Page 73514]]

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

[[Page 73515]]

individual state's permitting or enforcement program (e.g., whether 
permits and enforcement orders are approved by a multi-member board or 
by a head of an executive agency). However they are addressed by the 
state, the substantive requirements of section 128 are necessarily 
included in EPA's evaluation of infrastructure SIP submissions because 
section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the 
provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and NSR pollutants, including 
GHGs. By contrast, structural PSD program requirements do not include 
provisions that are not required under EPA's regulations at 40 CFR 
51.166 but are merely available as an option for the state, such as the 
option to provide grandfathering of complete permit applications with 
respect to the 2012 PM2.5 NAAQS. Accordingly, the latter 
optional provisions are types of provisions EPA considers irrelevant in 
the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, inter alia, the requirement that states have a 
program to regulate minor new sources. Thus, EPA evaluates whether the 
state has an EPA-approved minor new source review program and whether 
the program addresses the pollutants relevant to that NAAQS. In the 
context of acting on an infrastructure SIP submission, however, EPA 
does not think it is necessary to conduct a review of each and every 
provision of a state's existing minor source program (i.e., already in 
the existing SIP) for compliance with the requirements of the CAA and 
EPA's regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\12\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \12\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or to otherwise comply with the CAA.\13\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\14\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to

[[Page 73516]]

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

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

A. Emission Limits and Other Control Measures

    The CAA section 110(a)(2)(A) requires SIPs to include enforceable 
emission limits and other control measures, means or techniques, 
schedules for compliance and other related matters as needed to 
implement, maintain and enforce each of the NAAQS.\16\
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    \16\ The specific nonattainment area plan requirements of 
section 110(a)(2)(I) are subject to the timing requirements of 
section 172, not the timing requirement of section 110(a)(1). Thus, 
section 110(a)(2)(A) does not require that states submit regulations 
or emissions limits specifically for attaining the 2008 Pb NAAQS. 
Those SIP provisions are due as part of each state's attainment 
plan, and will be addressed separately from the requirements of 
section 110(a)(2)(A). In the context of an infrastructure SIP, EPA 
is not evaluating the existing SIP provisions for this purpose. 
Instead, EPA is only evaluating whether the state's SIP has basic 
structural provisions for the implementation of the NAAQS.
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    New Mexico's Environmental Improvement Act and Air Quality Control 
Act authorize the New Mexico Environment Department (NMED) to regulate 
air quality and implement air quality control regulations. 
Specifically, the New Mexico Air Quality Control Act delegates 
authority to the Environmental Improvement Board (EIB) to adopt, 
promulgate, publish, amend and repeal regulations consistent with the 
State's Air Quality Control Act to attain and maintain NAAQS and 
prevent or abate air pollution (see New Mexico Statutes Annotated 
(NMSA) 1978 74-2-5(B)(1)). The Air Quality Control Act also designates 
the NMED as the State's air pollution control agency, and the 
Environmental Improvement Act provides the NMED with enforcement 
authority. These statutes have been approved into the SIP (see 44 FR 
21019, April 9, 1979; revised 49 FR 44101, November 2, 1984; re-
codified and approved in 62 FR 50518, September 26, 1997).
    NMED's air quality rules and standards are codified at Title 20 
Environmental Protection, Chapter 2 Air Quality (Statewide) of the 
NMAC. Numerous parts of the regulations codified into Chapter 2 
necessary for implementing and enforcing the NAAQS have been adopted 
into the SIP. These include Part 1 General Provisions (75 FR 48860), 
Part 2 Definitions (62 FR 50514), Part 3 Ambient Air Quality Standards 
(76 FR 41698), Part 5 Source Surveillance (62 FR 50514), Part 7 Excess 
Emissions (74 FR 46910), and Part 8 Emissions Leaving New Mexico (62 FR 
50514). Collectively these regulations identify the Air Quality 
Bureau's powers and responsibilities, define air quality standards, 
authorize monitoring, sampling and testing for emissions, and regulate 
interstate transport of emissions originating in New Mexico. The 
regulations and standards in Parts 10-61 pertain to emissions of 
certain pollutants from specific emission sources, activities and 
locales, and last full approval of these regulations into the SIP was 
made on September 26, 1997 (62 FR 50514). Permitting requirements, 
emissions reporting, and fees are regulated by Parts 72 Construction 
Permits (62 FR 50514), Part 73 Notice of Intent and Emissions Inventory 
Requirements (75 FR 48860), Part 74 Permits--Prevention of Significant 
Deterioration (76 FR 43149), Part 75 Construction Permit Fees (77 FR 
18923), Part 79 Permits--Nonattainment Areas (72 FR 50879), and Part 80 
Stack Heights (62 FR 50514). EPA's NAAQS, including the 2008 Pb NAAQS, 
are adopted by reference into these permitting regulations. Conformity 
requirements and transportation-related emissions are regulated under 
Part 99 Conformity to the State Implementation Plan of Transportation 
Plans, Programs, and Projects (65 FR 14873 and 75 FR 21169).
    Based upon review of the State's infrastructure SIP submission for 
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities 
and provisions referenced in the submission or referenced in New 
Mexico's SIP, EPA believes that the New Mexico SIP adequately addresses 
the requirements of section 110(a)(2)(A) for the 2008 Pb NAAQS and is 
proposing to approve this element of the September 9, 2011, SIP 
submission.

B. Ambient Air Quality Monitoring/Data System

    The CAA section 110(a)(2)(B) requires SIPs to include provisions to 
provide for establishment and operation of ambient air quality 
monitors, collection and analysis of ambient air quality data, and 
making these data available to EPA upon request.
    To address this element, the Air Quality Control Act at Section 
NMSA 1978, section 74-2-5 provides the enabling authority necessary for 
the New Mexico EIB and NMED to fulfill the requirements of section 
110(a)(2)(B). The Air Quality Bureau (AQB) within NMED implements these 
requirements. Along with their other duties, the AQB collects air 
monitoring data, quality-assures the results, and reports the data.
    Historically, EPA has promulgated regulations in 40 CFR 58 (Ambient 
Air Quality Surveillance), indicating the necessary data states need to 
collect and submit as part of their SIPs. For the 2008 Pb NAAQS, EPA 
regulations require that ambient monitoring be conducted in every urban 
area with National Core (``NCore'') monitoring sites and with 
populations equal to or exceeding 500,000 people, and that ``source-
oriented'' monitoring be conducted in the vicinity of any stationary 
point sources that emit Pb in amounts exceeding 1,000 pounds per year.
    The New Mexico statewide air quality surveillance network was 
approved into the New Mexico SIP by EPA on August 6, 1981 (46 FR 
40005). Furthermore, New Mexico's air quality surveillance network 
undergoes recurrent annual review by EPA, as required by 40 CFR 58.10. 
On July 15, 2013, NMED

[[Page 73517]]

submitted its 2013 Annual Air Monitoring Network Plan (AAMNP) that 
included ambient monitoring for the 2008 Pb NAAQS, and EPA approved the 
2013 AAMNP on February 19, 2014.\17\ In addition, NMED conducts a 
recurrent assessment of its monitoring network every five years, which 
includes an evaluation of the need to conduct ambient monitoring for 
Pb, as required by 40 CFR 58.10(d). The most recent of these 5-year 
monitoring network assessments was conducted by NMED and submitted in 
June 2010, and was subsequently approved by EPA.\18\ In evaluating the 
need to perform ambient monitoring for Pb in its most recent 5-year 
monitoring network assessment, NMED concluded that no ambient 
monitoring network for Pb was necessary because there are no urban 
areas with populations equal to or exceeding 500,000 people within its 
area of jurisdiction \19\ and because there are no stationary point 
sources anywhere within New Mexico or in close proximity to its borders 
that emit Pb in quantities exceeding 1,000 pounds per year. We have 
verified through the National Emission Inventory System that no 
stationary sources exist within New Mexico that emit Pb in quantities 
equal to or exceeding 1,000 pounds per year,\20\ and through review of 
the most recently available census data we have confirmed that there 
are no metropolitan areas with populations of 500,000 or more people 
within NMED's area of jurisdiction. NMED will continue to evaluate the 
need to conduct ambient monitoring for Pb every five years when it 
performs its recurrent ambient monitoring network assessment.
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    \17\ A copy of the 2013 AAMNP and EPA's approval letter are 
included in the docket for this proposed rulemaking.
    \18\ A copy of the 2010 5-year ambient monitoring network 
assessment and EPA's approval letter are included in the docket for 
this proposed rulemaking.
    \19\ The Albuquerque metropolitan area, centered on the city of 
Albuquerque in Bernalillo County, contains more than 500,000 people, 
but Bernalillo County is not within the jurisdiction of NMED. The 
local air quality district for Albuquerque and Bernalillo County is 
responsible for conducting ambient Pb monitoring for the Albuquerque 
area.
    \20\ An inventory of stationary sources located in New Mexico 
that emit Pb, based on the 2011 triennial NEI, is included in the 
Technical Support Document, available in the docket for this 
proposed rulemaking.
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    The AQB makes NMED's ambient monitoring data available for public 
review on its Web site.\21\ The NMED Web site provides the monitor 
locations and posts past and current concentrations of criteria 
pollutants measured in the State's network of monitors.\22\ The NMED 
monitors that are not certified as meeting the federal requirements are 
identified as ``non-regulatory'' monitors.\23\ The State submits air 
monitoring data to EPA on a quarterly basis and certifies the data 
annually.
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    \21\ See http://www.nmenv.state.nm.us/aqb/monitor/airmonitoringnetwork.html.
    \22\ See http://air.nmenv.state.nm.us.
    \23\ These include for example, special purpose monitors (SPMs). 
Special purpose monitoring is conducted on a frequent basis for a 
variety of reasons: As a tool to supplement state ambient air 
monitoring networks to obtain information on where to locate 
permanent monitoring stations, to provide additional data in support 
of pollutant formation and transport analyses, or to assess air 
quality in a particular location. These studies vary in duration 
from being temporary sites needed only during a portion of the year 
to long-term air pollution studies over a large area.
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    Based upon review of the State's infrastructure SIP submission for 
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities 
and provisions referenced in the submission or referenced in New 
Mexico's SIP, EPA believes that the New Mexico SIP meets the 
requirements of section 110(a)(2)(B) for the 2008 Pb NAAQS and is 
proposing to approve this element of the September 9, 2011 submission.

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

    The CAA section 110(a)(2)(C) requires states to include the 
following three elements in the SIP: (1) A program providing for 
enforcement of all SIP measures described in section 110(a)(2)(A); (2) 
a program for the regulation of the modification and construction of 
stationary sources as necessary to protect the applicable NAAQS (i.e., 
state-wide permitting of minor sources); and (3) a permit program to 
meet the major source permitting requirements of the CAA (for areas 
designated as attainment or unclassifiable for the NAAQS in 
question).\24\
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    \24\ As discussed in further detail below, this infrastructure 
SIP rulemaking will not address the New Mexico program for 
provisions related to nonattainment areas, since EPA considers 
evaluation of these provisions to be outside the scope of 
infrastructure SIP actions.
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1. Enforcement of SIP Measures
    With respect to enforcement of requirements of the SIP, the New 
Mexico statutes provide authority for the Environmental Improvement 
Board and the NMED to enforce the requirements of the Air Quality 
Control Act, and any regulations, permits, or final compliance orders 
issued under the provisions of the Act. General enforcement authority 
is provided by NMSA 1978 74-1 and NMSA 1978 74-2, which address general 
enforcement power; investigation and remediation agreements; civil and 
criminal penalties; compliance orders and emergency cease and desist 
orders; civil actions; a field citation program.
    The Environmental Improvement Act, which has been approved into the 
SIP (49 FR 44101; 64 FR 29255), authorizes the creation of the 
Environmental Improvement Board (NMSA 1978, section 74-1-4); authorizes 
the EIB, the NMED, and its Secretary to file lawsuits, conduct 
investigations and enter into remediation agreements, enforce rules, 
regulations and orders promulgated by the EIB, and collect civil 
penalties (NMSA 1978, section 74-1-6); develop and enforce rules and 
standards related to protection of air quality (NMSA 1978, sections 74-
1-7 and 74-1-8); and issue compliance orders and commence civil actions 
in response to violations (NMSA 1978, section 74-1-10).
    Likewise, the Air Quality Control Act empowers the EIB and NMED to 
institute legal proceedings to compel compliance with the Air Quality 
Control Act and any regulations of the EIB or local air quality control 
agencies (NMSA 1978, section 74-2-5.1); issue compliance orders, 
commence civil actions, and issue field citations (NMSA1978, section 
74-2-12); assess civil penalties for violations of the Act or 
regulations promulgated under it or permits issued (NMSA 1978, section 
74-2-12.1); conduct inspections of regulated entities (NMSA 1978, 
section 74-2-13); and pursue criminal prosecutions (NMSA 1978, section 
74-2-14). Additional enforcement authorities and funding mechanisms are 
provided by the Act at NMSA 1978, section 74-2-15. These sections of 
the Air Quality Control Act were adopted into the SIP on November 2, 
1984 (49 FR 44101).
    NMED air quality standards and regulations containing specific 
enforcement provisions and adopted into the SIP include: 20.2.7 NMAC 
Excess Emissions (74 FR 46910) and 20.2.72 NMAC Construction Permits 
(38 FR 12702 and 62 FR 50514).
2. Minor New Source Review
    Section 110(a)(2)(C) also requires that the SIP include measures to 
regulate construction and modification of stationary sources to protect 
the NAAQS. With respect to smaller statewide minor sources Section 
110(a)(2)(C) creates ``a general duty on states to include a program in 
their SIP that regulates the modification and construction of any 
stationary source as

[[Page 73518]]

necessary to assure that the NAAQS are achieved'' (70 FR 71612 and 
71677). EPA provides states with discretion in implementing their Minor 
NSR programs (71 FR 48696 and 48700). The ``considerably less 
detailed'' regulations for Minor NSR are provided in 40 CFR 51.160 
through 51.164. EPA has determined that New Mexico's Minor NSR program 
adopted pursuant to section 110(a)(2)(C) of the Act regulates emissions 
of all regulated air contaminants for which there is a NAAQS (see 
20.2.72.200 NMAC). New Mexico's Minor NSR permitting requirements are 
found at 20.2.72 NMAC--Construction Permits and were approved into the 
SIP on May 14, 1973 (38 FR 12702), with revisions approved on September 
26, 1997 (62 FR 50514), June 13, 2012 (77 FR 35273), and March 11, 2013 
(78 FR 15296).
    In this action, EPA is proposing to approve New Mexico's 
infrastructure SIP for the 2008 Pb standard with respect to the general 
requirement in section 110(a)(2)(C) to include a program in the SIP 
that regulates the modification and construction of any stationary 
source as necessary to assure that the NAAQS are achieved. However, EPA 
is not proposing to approve or disapprove New Mexico's existing Minor 
NSR program to the extent that it may be inconsistent with EPA's 
regulations governing this program. EPA has maintained that the CAA 
does not require that new infrastructure SIP submissions correct any 
defects in existing EPA-approved provisions of minor NSR programs in 
order for EPA to approve the infrastructure SIP for element C (e.g., 76 
FR 41076-41079). EPA believes that a number of states may have Minor 
NSR provisions that are contrary to the existing EPA regulations for 
this program. EPA intends to work with states to reconcile state Minor 
NSR programs with EPA's regulatory provisions for the program. The 
statutory requirements of section 110(a)(2)(C) provide for considerable 
flexibility in designing Minor NSR programs, and EPA believes it may be 
time to revisit the regulatory requirements for this program to give 
the states an appropriate level of flexibility to design a program that 
meets their particular air quality concerns, while assuring reasonable 
consistency across the country in protecting the NAAQS with respect to 
new and modified minor sources.
3. Prevention of Significant Deterioration (PSD) Permit Program
    New Mexico also has a program approved by EPA as meeting the 
requirements of part C, relating to prevention of significant 
deterioration of air quality. In order to demonstrate that New Mexico 
has met this sub-element, this PSD program must cover requirements not 
just for the 2008 Pb NAAQS, but for all other regulated NSR pollutants 
as well.
    PSD programs apply in areas that are meeting the NAAQS, referred to 
as areas in attainment, and in areas for which there is insufficient 
information to designate as either attainment or nonattainment, 
referred to as unclassifiable areas. New Mexico's PSD program was 
conditionally approved into the SIP on February 27, 1987 (52 FR 5964) 
and fully approved on August 15, 2011 (76 FR 41698). Revisions to New 
Mexico's PSD program were approved into the SIP on August 21, 1990 (55 
FR 34013), May 2, 1991 (56 FR 20137), October 15, 1996 (61 FR 53639), 
March 10, 2003 (68 FR 11316), December 24, 2003 (68 FR 74483), 
September 5, 2007 (72 FR 50879), November 26, 2010 (75 FR 72688) and 
July 20, 2011 (76 FR 43149). Additionally, on June 11, 2009 and May 23, 
2011, New Mexico submitted to EPA SIP revisions that revise the State's 
PSD and NNSR permitting regulations to address the permitting 
requirements associated with the NAAQS for 8-hour ozone and 
PM2.5, respectively. EPA approved the portions of the June 
11, 2009 submittal associated with implementing NOX as a 
precursor (75 FR 72688) as necessary to implement the 1997 ozone 
standard. EPA approved the May 23, 2011, revision in a Federal Register 
notice signed January 22, 2013, as these elements are necessary for 
implementation of the PM2.5 standard (78 FR 4339).
    The 2008 Pb NAAQs are substantially lower than the previous Pb 
NAAQs, and this may require EPA to revise the PSD applicability 
thresholds in the future, with regard to Pb emissions. However, at this 
time EPA has not proposed to amend the PSD regulations with regard to 
the 2008 Pb NAAQS. We do, however, recognize that certain provisions of 
these regulations still may need to be evaluated and potentially 
revised in light of the revised Pb standard, particularly with regards 
to applicability thresholds for increases in emissions resulting from 
the construction of new sources or modifications to existing sources.
    With respect to the infrastructure elements contained in section 
110(a)(2)(C) and (J), EPA interprets the Clean Air Act to require each 
state to make an infrastructure SIP submission for a new or revised 
NAAQS that demonstrates that the air agency has a complete PSD 
permitting program meeting the current requirements for all regulated 
NSR pollutants. The requirements of section 110(a)(2)(D)(i)(II) may 
also be satisfied by demonstrating the air agency has a complete PSD 
permitting program correctly addressing all regulated NSR pollutants. 
New Mexico has shown that it currently has a PSD program in place that 
covers all regulated NSR pollutants, including greenhouse gases (GHGs).
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions. (see Utility Air Regulatory Group v. Environmental 
Protection Agency, 134 S.Ct. 2427) The Supreme Court said that the EPA 
may not treat GHGs as an air pollutant for purposes of determining 
whether a source is a major source required to obtain a PSD permit. The 
Court also said that the EPA could continue to require that PSD 
permits, otherwise required based on emissions of pollutants other than 
GHGs, contain limitations on GHG emissions based on the application of 
Best Available Control Technology (BACT). In order to act consistently 
with its understanding of the Court's decision pending further judicial 
action to effectuate the decision, the EPA is not continuing to apply 
EPA regulations that would require that SIPs include permitting 
requirements that the Supreme Court found impermissible. Specifically, 
EPA is not applying the requirement that a state's SIP-approved PSD 
program require that sources obtain PSD permits when GHGs are the only 
pollutant (i) that the source emits or has the potential to emit above 
the major source thresholds, or (ii) for which there is a significant 
emissions increase and a significant net emissions increase from a 
modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to 
revise federal PSD rules in light of the Supreme Court opinion. In 
addition, EPA anticipates that many states will revise their existing 
SIP-approved PSD programs in light of the Supreme Court's decision. The 
timing and content of subsequent EPA actions with respect to the EPA 
regulations and state PSD program approvals are expected to be informed 
by additional legal process before the United States Court of Appeals 
for the District of Columbia Circuit. At this juncture, EPA is not 
expecting states to have revised their PSD programs for purposes of 
infrastructure SIP submissions and is only evaluating such submissions 
to assure that the state's program correctly addresses GHGs consistent 
with the Supreme Court's decision.
    EPA has previously approved New Mexico SIP revisions submitted to 
align

[[Page 73519]]

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

D. Interstate and International Transport

    The CAA section 110(a)(2)(D)(i) includes four requirements referred 
to as prongs 1 through 4. Prongs 1 and 2 are provided at section 
110(a)(2)(D)(i)(I), and prongs 3 and 4 are provided at section 
110(a)(2)(D)(i)(II). Section 110(a)(2)(D)(i)(I) requires SIPs to 
include adequate provisions prohibiting any source or other type of 
emissions activity in one state from contributing significantly to 
nonattainment, or interfering with maintenance, of any NAAQS in another 
state. Section 110(a)(2)(D)(i)(II) requires SIPs to include adequate 
provisions prohibiting any source or other type of emissions activity 
in one state from interfering with measures required of any other state 
to prevent significant deterioration of air quality or to protect 
visibility.
    With respect to prongs 1 and 2, the physical properties of Pb, 
which is very dense, prevent Pb emissions from experiencing a 
significant degree of travel in the ambient air. No complex chemistry 
is needed to form Pb or Pb compounds in the ambient air; therefore, 
ambient concentrations of Pb are typically highest near Pb sources. 
More specifically, there is a sharp decrease in ambient Pb 
concentrations as the distance from the source increases. According to 
EPA's report entitled Our Nation's Air: Status and Trends Through 2010, 
Pb concentrations that are not near a source of Pb are approximately 8 
times less than the typical concentrations near the source.\25\ For 
these reasons, EPA believes that the requirements of prongs 1 and 2 can 
be satisfied through a state's assessment as to whether a lead source 
located within its state in close proximity to a state border has 
emissions that contribute significantly to the nonattainment in or 
interfere with maintenance of the NAAQS in the neighboring state.
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    \25\ http://www.epa.gov/airtrends/2011/report/fullreport.pdf
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    There are no areas within the State of New Mexico that are 
designated as nonattainment with respect to the 2008 Pb NAAQS, and 
there are no significant sources of Pb emissions within the State that 
emit Pb in amounts equal to or exceeding 0.5 tons per year, and no 
sources of Pb emissions within two miles of a neighboring state line. 
Total Pb emissions within New Mexico (including Albuquerque/Bernalillo 
County, which is outside NMED's jurisdiction) in 2011 were less than 
two tons, and most of the Pb-emitting sources within the State are 
general aviation airports where aviation gasoline containing tetra-
ethyl lead is still in use. Therefore, we deem that New Mexico has 
presumptively satisfied the requirements of prongs 1 and 2.
    With respect to the PSD requirements of section 
110(a)(2)(D)(i)(II)--prong 3, we note that New Mexico's satisfaction of 
the applicable infrastructure SIP PSD requirements for attainment/
unclassifiable areas with regards to the 2008 Pb NAAQS have been 
detailed in the section addressing section 110(a)(2)(C). For sources 
not subject to PSD for any one of the pollutants subject to regulation 
under the CAA because they are in a nonattainment area for a NAAQS, New 
Mexico has adopted the nonattainment new source review (NNSR) 
provisions required for the 2008 Pb NAAQS and other NAAQS at 20.2.79 
NMAC--Permits--Nonattainment Areas.
    With regard to the applicable requirements for visibility 
protection of section 110(a)(2)(D)(i)(II)--prong 4, significant impacts 
from Pb emissions from stationary sources are expected to be limited to 
short distances from the source and most, if not all, stationary 
sources of Pb emissions are located at sufficient distances from Class 
I areas such that visibility impacts would be negligible. Although Pb 
can be a component of coarse and fine particles, Pb generally comprises 
only a small fraction of coarse and fine particles. A recent agency 
study conducted to evaluate the extent that Pb could impact visibility 
concluded that Pb-related visibility impacts at Class I areas were 
found to be insignificant (e.g., less than 0.10%).\26\
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    \26\ Analysis by Mark Schmidt, OAQPS, ``Ambient Pb's 
Contribution to Class I Area Visibility Impairment,'' June 17, 2011.
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    Section 110(a)(2)(D)(ii) also requires that the SIP ensure 
compliance with the applicable requirements of sections 126 and 115 of 
the CAA, relating to interstate and international pollution abatement, 
respectively. Section 126(a) of the CAA requires new or modified 
sources to notify neighboring states of potential impacts from sources 
within the State. New Mexico regulations require that affected states 
receive notice prior to the commencement of any construction or 
significant modification of a major source. New Mexico's rule 
concerning PSD construction permits at 20.2.74 NMAC--Permits--
Prevention of Significant Deterioration requires that the review of all 
PSD permit applications follows the procedures of 20.2.74.400 NMAC--
Public Participation and Notification and 20.2.74.403 NMAC--Additional 
Requirements for Sources Impacting Class I Federal Areas, which require 
the permitting authority to provide neighboring states, tribal 
authorities, and Federal Land Managers of affected Class I Areas with 
copies of PSD permit applications received by the department and to 
issue a preliminary determination for public comment, with notification 
to affected states, tribal authorities, and Federal Land Managers of 
affected Class I Areas on or before the time notice is provided to the 
public. In addition, no source or sources located in New Mexico have 
been identified by EPA as having any interstate impacts under section 
126 in any pending actions relating to any air pollutant.
    Section 115 of the CAA authorizes EPA to require a state to revise 
its SIP

[[Page 73520]]

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

E. Adequate Authority, Resources, Implementation, and Oversight

    The CAA section 110(a)(2)(E) requires that SIPs provide for the 
following: (1) Necessary assurances that the state (and other entities 
within the state responsible for implementing the SIP) will have 
adequate personnel, funding, and authority under state or local law to 
implement the SIP, and that there are no legal impediments to such 
implementation; (2) requirements that the state comply with the 
requirements relating to state boards, pursuant to section 128 of the 
CAA; and (3) necessary assurances that the state has responsibility for 
ensuring adequate implementation of any plan provision for which it 
relies on local governments or other entities to carry out that portion 
of the plan.
    Section 110(a)(2)(E)(i) requires states to establish that they have 
adequate personnel, funding and authority to implement the NAAQS. With 
respect to adequacy of authority, we have previously discussed New 
Mexico's statutory and regulatory authority to implement the 2008 Pb 
NAAQS, primarily in the discussion of section 110(a)(2)(A) above.
    With respect to adequacy of resources, NMED asserts that it has 
adequate personnel to implement the SIP. The infrastructure SIP 
submission for the 2008 Pb NAAQS describes the regulations governing 
the various functions of personnel within the Air Quality Bureau, 
including the administrative, technical support, planning, enforcement, 
and permitting functions of the program.
    With respect to funding, the Air Quality Control Act at NMSA 1978, 
section 74-2-7 requires NMED to establish an emissions fee schedule for 
sources in order to fund the reasonable costs of administering various 
air pollution control programs and also authorizes NMED to collect 
additional fees necessary to cover reasonable costs associated with 
processing of air permit applications. The Air Quality Control Act 
provides for the deposit of the fees into various subaccounts (e.g., 
the State's air quality permit fund for the Title V operating permit 
program used for Title V implementation activities; and various 
subaccounts for local air quality agencies). NMED also receives funding 
from general revenue funds and EPA grants under, for example, sections 
103 and 105 of the CAA, to finance air quality programs. EPA conducts 
periodic program reviews to ensure that the State has adequate 
resources and funding to, among other things, implement the SIP.
    With respect to authority, the Air Quality Control Act at NMSA 
1978, section 74-2-5 provides the authority necessary to carry out the 
SIP requirements as referenced above in element A. The Air Quality 
Control Act provides the NMED with broad legal authority to adopt 
emission standards and compliance schedules applicable to regulated 
entities, and to adopt emission standards and limitations and any other 
measures necessary for attainment and maintenance of national 
standards. The Act also provides the board adequate legal authority to 
enforce applicable laws, regulations, standards, and compliance 
schedules, and seek injunctive relief. In addition, section 74-2-5.1 of 
the Act provides the department legal authority to enforce applicable 
laws, regulations, standards, and compliance schedules.
    With regard to the conflict of interest provisions of section 128 
of the CAA, section 110(a)(2)(E)(ii) requires that each state SIP meet 
the requirements of section 128, relating to representation on state 
boards and conflicts of interest by members of such boards. Section 
128(a)(1) requires that any board or body which approves permits or 
enforcement orders under the CAA must have at least a majority of 
members who represent the public interest and do not derive any 
``significant portion'' of their income from persons subject to permits 
and enforcement orders under the CAA. Section 128(a)(2) requires that 
members of such a board or body, or the head of an agency with similar 
powers, adequately disclose any potential conflicts of interest.
    The Environmental Improvement Act at NMSA 1978, section 74-1-4 
provides that the Environmental Improvement Board contain at least a 
majority of members who represent the public interest and do not derive 
any significant portion of their income from persons subject to or who 
appear before the board on issues related to the Clean Air Act or Air 
Quality Control Act. Furthermore, pursuant to State regulations adopted 
by the Board, Board members are required to recuse themselves from 
rule-makings in which their impartiality may reasonably be questioned. 
(see 20.1.1.111 NMAC).
    With respect to assurances that the State has responsibility to 
implement the SIP adequately when it authorizes local or other agencies 
to carry out portions of the plan, the Environmental Improvement Act 
and the Air Quality Control Act designate the NMED as the primary air 
pollution control agency ``for all purposes'' of implementing the 
requirements of the federal Clean Air Act and the New Mexico Air 
Quality Control Act.
    There is one local air quality control agency that assumes 
jurisdiction for local administration and enforcement of the Air 
Quality Control Act in New Mexico, the Albuquerque/Bernalillo County 
Air Quality Control Board, as authorized by NMSA 1978, section 74-2-4. 
Pursuant to the New Mexico Air Quality Control Act, the local air 
quality control agency, within the boundaries of the Albuquerque/
Bernalillo County area, is delegated all those functions delegated to 
the Environmental Improvement Board, with the exception of any 
functions reserved exclusively for the Environmental Improvement Board, 
NMSA 1978, section 74-2-4(A)(1). Further, The Air Quality Control Act, 
grants the local air quality control agency, within the boundaries of 
the Albuquerque/Bernalillo County area, the authority to perform all 
the duties required of NMED and exert all of the powers granted to 
NMED, except for those powers and duties reserved exclusively for the 
department, NMSA 1978, section 74-2-4(A)(2). However, the NMED and the 
State Environmental Improvement Board retain oversight authority in the 
event the local authority fails to act. EPA conducts reviews of the 
local program activities in conjunction with its oversight of the State 
program.
    Based upon review of the State's infrastructure SIP submission for 
the 2008 Pb NAAQS and relevant statutory and regulatory authorities and 
provisions referenced in the submission or referenced in New Mexico's 
SIP, EPA believes that New Mexico has the adequate infrastructure 
needed to address section 110(a)(2)(E) for the 2008 Pb NAAQS and is 
proposing to approve this element of the September 9, 2011 submission.

[[Page 73521]]

F. Stationary Source Monitoring System

    The CAA section 110(a)(2)(F) requires states to establish a system 
to monitor emissions from stationary sources and to submit periodic 
emission reports. Each SIP shall require the installation, maintenance, 
and replacement of equipment, and the implementation of other necessary 
steps, by owners or operators of stationary sources, to monitor 
emissions from such sources. The SIP shall also require periodic 
reports on the nature and amounts of emissions and emissions-related 
data from such sources, and requires that the state correlate the 
source reports with emission limitations or standards established under 
the CAA. These reports must be made available for public inspection at 
reasonable times.
    To address this element, the Air Quality Control Act at NMSA 1978, 
section 4-2-5 authorizes the NMED to require persons engaged in 
operations which result in air pollution to monitor or test emissions 
and to file reports containing information relating to the nature and 
amount of emissions. State regulations pertaining to sampling and 
testing are codified at 20.2.72 NMAC Construction Permits, 20.2.70 NMAC 
Operating Permits, and 20.2.79 NMAC Permits--Nonattainment Areas, and 
requirements for reporting of emissions inventories are codified at 
20.2.73 NMAC Notice of Intent and Emission Inventory Requirements. In 
addition, rules at 20.2.5 NMAC Source Surveillance, establish general 
requirements for maintaining records and reporting emissions.
    The NMED uses this information, in addition to information obtained 
from other sources, to track progress towards maintaining the NAAQS, 
developing control and maintenance strategies, identifying sources and 
general emission levels, and determining compliance with emission 
regulations and additional EPA requirements. NMED makes this 
information available to the public (20.2.5 NMAC Source Surveillance). 
Provisions concerning the handling of confidential data and proprietary 
business information are included in the general provisions regulations 
at 20.2.1.115 NMAC, Confidential Business Information. These rules 
specifically exclude from confidential treatment any records concerning 
the nature and amount of emissions reported by sources.
    Based upon review of the State's infrastructure SIP submission for 
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities 
and provisions referenced in the submission or referenced in New 
Mexico's SIP, EPA believes that New Mexico has the adequate 
infrastructure needed to address CAA section 110(a)(2)(F) for the 2008 
Pb NAAQS and is proposing to approve this element of the September 9, 
2011, submission.

G. Emergency Authority

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

H. Future SIP Revisions

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

I. Nonattainment Areas

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

[[Page 73522]]

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

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

    The CAA section 110(a)(2)(J) requires SIPs to meet the applicable 
requirements of the following CAA provisions: (1) Section 121, relating 
to interagency consultation regarding certain CAA requirements; (2) 
section 127, relating to public notification of NAAQS exceedances and 
related issues; and (3) part C of the CAA, relating to prevention of 
significant deterioration of air quality and visibility protection.
    (1) With respect to interagency consultation, the SIP should 
provide a process for consultation with general-purpose local 
governments, designated organizations of elected officials of local 
governments, and any Federal Land Manager having authority over Federal 
land to which the SIP applies. New Mexico's Air Quality Control Act 
provides that ``no regulations or emission control requirement shall be 
adopted until after a public hearing by the environmental improvement 
board or the local board'' and that, ``at the hearing, the 
environmental improvement board or the local board shall allow all 
interested persons reasonable opportunity to submit data, views, or 
arguments orally or in writing and to examine witnesses testifying at 
the hearing'' (see NMSA 1978, sections 74-2-6(B) and (D)). In addition, 
the Air Quality Control Act provides that the NMED shall have the power 
and duty to ``advise, consult, contract with and cooperate with local 
authorities, other states, the federal government and other interested 
persons or groups in regard to matters of common interest in the field 
of air quality control . . .'' (see NMSA 1978, section 74-2-5.2(B)). 
Furthermore, New Mexico's PSD rules at 20.2.74.400 NMAC mandate that 
the NMED shall provide for public participation and notification 
regarding permitting applications to any other state or local air 
pollution control agencies, local government officials of the city or 
county where the source will be located, tribal authorities, and 
Federal Land Managers (FLMs) whose lands may be affected by emissions 
from the source or modification. Additionally, the State's PSD rules at 
20.2.74.403 NMAC require the NMED to consult with FLMs regarding permit 
applications for sources with the potential to impact Class I Federal 
Areas (75 FR 72688 and 72 FR 50879). Finally, the State of New Mexico 
has committed in the SIP to consult continually with the FLMs on the 
review and implementation of the visibility program, and the State 
recognizes the expertise of the FLMs in monitoring and new source 
review applicability analyses for visibility and has agreed to notify 
the FMLs of any advance notification or early consultation with a major 
new or modifying source prior to the submission of the permit 
application (71 FR 4490). The State's Transportation Conformity rules 
at 20.2.99.116 through 20.2.99.124 NMAC provide procedures for 
interagency consultation, resolution of conflicts, and public 
notification (65 FR 14873 and 75 FR 21169).
    (2) With respect to the requirements for public notification in 
section 127, the infrastructure SIP should provide citations to 
regulations in the SIP requiring the air agency to regularly notify the 
public of instances or areas in which any NAAQS are exceeded; advise 
the public of the health hazard associated with such exceedances; and 
enhance public awareness of measures that can prevent such exceedances 
and of ways in which the public can participate in the regulatory and 
other efforts to improve air quality. Provisions regarding public 
notification of instances or areas in which any primary NAAQS was 
exceeded were approved into the New Mexico SIP on August 24, 1983 (48 
FR 38466). In addition, as discussed for infrastructure element B 
above, the NMED air monitoring Web site provides live air quality data 
for each of the monitoring stations in New Mexico.\27\ The Web site 
also provides information on the health effects of ozone, particulate 
matter, and other criteria pollutants. Because no significant sources 
of Pb emissions are located within the State or in proximity to its 
borders, we do not anticipate that any circumstances of short-term 
exceedances or violations of the 2008 Pb NAAQS will occur in New 
Mexico.
---------------------------------------------------------------------------

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

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

K. Air Quality and Modeling/Data

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

[[Page 73523]]

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

L. Permitting Fees

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

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

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

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

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

M. Consultation/Participation by Affected Local Entities

    The CAA section 110(a)(2)(M) requires SIPs to provide for 
consultation and participation by local political subdivisions affected 
by the SIP.
    As described under the section addressing the requirements of 
element 110(a)(2)(J) above, regarding consultation with government 
officials and public notification, New Mexico's Air Quality Control Act 
provides that, ``no regulations or emission control requirement shall 
be adopted until after a public hearing by the environmental 
improvement board or the local board'' and provides that, ``at the 
hearing, the environmental improvement board or the local board shall 
allow all interested persons reasonable opportunity to submit data, 
views, or arguments orally or in writing and to examine witnesses 
testifying at the hearing'' (see NMSA 1978, section 74-2-6(B) and (D)). 
In addition, the Air Quality Control Act provides that the NMED shall 
have the power and duty to ``advise, consult, contract with and 
cooperate with local authorities, other states, the federal government 
and other interested persons or groups in regard to matters of common 
interest in the field of air quality control . . .'' (see NMSA 1978, 
section 74-2-5.2(B)). The Act also requires initiation of cooperative 
action between local authorities and the NMED, between one local 
authority and another, or among any combination of local authorities 
and the NMED for control of air pollution in areas having related air 
pollution problems that overlap the boundaries of political 
subdivisions; and entering into agreements and compacts with adjoining 
states and Indian tribes, where appropriate. NMED has a long history of 
successful cooperation with the local air quality authority in 
Albuquerque/Bernalillo County and tribal governments.
    With regard to permitting actions, New Mexico's PSD regulations at 
20.2.74.400 NMAC, approved into the SIP on March 30, 1987 (52 FR 5964) 
and December 16, 1996 (61 FR 53642), mandate that the NMED shall 
provide for public participation and notification regarding permitting 
applications to any other state or local air pollution control 
agencies, local government officials of the city or county where the 
source will be located, and Federal Land Managers whose lands may be 
affected by emissions from the source or modification. New Mexico's 
Transportation Conformity regulations at 20.2.99.116 and 20.2.99.124 
NMAC, both approved into the SIP on April 23, 2010 (75 FR 21169), 
require that interagency consultation and opportunity for public 
involvement be provided before making transportation conformity 
determinations and before adopting applicable SIP revisions on 
transportation-related SIPs.
    Based upon review of the State's infrastructure SIP submission for 
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities 
and provisions referenced in the submission or referenced in New 
Mexico's SIP, EPA believes that New Mexico has the adequate 
infrastructure needed to address section 110(a)(2)(M) for the 2008 Pb 
NAAQS and is proposing to approve this element of the September 9, 2011 
submission.

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

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

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

[[Page 73524]]

of exhaust gas (230 mg/m3). See section 108 of the repealed rule in the 
Technical Support Document (20.2.12.108 NMAC). Demonstrating compliance 
with this emission limit is less practical than demonstrating 
compliance with the comparable New Source Performance Standard (NSPS) 
because it is not clinker-production based, and it also lacks utility 
because no such source exists in NMED's area of jurisdiction. In other 
words, the current EPA-approved NMAC 20.2.12--Cement Kilns rule is 
outdated in format and superfluous.
    Should a cement kiln locate within NMED's jurisdiction in the 
future, that source will be subject to new source review and New Source 
Performance Standard (NSPS) requirements. See 40 CFR 60, Subpart F. In 
addition, hazardous air pollutants from a cement kiln would be subject 
to National Emission Standards for Hazardous Air Pollutants (NESHAP), 
contained in 40 CFR 61; and Maximum Achievable Control Technology 
(MACT) standards contained in 40 CFR 63. See appendix A of the 
Technical Support Document prepared in conjunction with this rulemaking 
action. These emission standards and control requirements are more 
current, practical, and stringent than the existing NMAC 20.2.12--
Cement Kilns rule emission limitation.

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

    Section 110(l) of the Act requires that a SIP revision submitted to 
EPA be adopted after reasonable notice and public hearing. Section 
110(l) also requires that we not approve a SIP revision if the revision 
would interfere with any applicable requirement concerning attainment 
and reasonable further progress, or any other applicable requirement of 
the CAA. Records contained in the submittal show that State has 
complied with public hearing and reasonable notice requirements of the 
SIP. See Exhibit 9 of the submittal.
    Furthermore; in support of its submittal to repeal NMAC 20.2.12--
Cement Kilns rule the State provides the following factors: (a) Repeal 
of NMAC 20.2.12--Cement Kilns rule will benefit the State by removing 
potentially confusing and ambiguous provisions from the SIP and air 
permitting process; (b) the emission limits in NMAC 20.2.12--Cement 
Kilns rule are based on mass of particulate matter in the volume of 
stack gas, whereas, the NSPS emission limits are based on mass of PM 
per ton of clinker produced; (c) in addition to limiting emissions from 
the cement kilns, the NSPS limits emissions from the grinding, cooling 
and materials handling operations in the cement manufacturing process; 
(d) the method for demonstrating compliance with the PM emission 
limitation in section NMAC 20.2.12.108 is more complex and difficult 
than the corresponding NSPS requires; (e) currently, there are no 
cement manufacturing facilities under the jurisdiction of the NMED, and 
they do not anticipate any new kilns to be built in the near future 
(negative declaration). New Mexico substantiated this factor through 
consultation with the Air Quality Bureau's permitting staff, searching 
its database of facilities, the United States Geological Survey, and 
trade publications. See Exhibit 8 of the submittal.
    In the unlikely event of a new cement plant locating in the area, 
then that source will be subject to existing, more stringent, 
appropriate federal requirements.
    We have reviewed the above factors, and agree with the State's 
determination. The repeal of NMAC 20.2.12--Cement Kilns rule does not 
result in an increase in the amount of PM emissions. We are proposing a 
finding that section 110(l) has been complied with because there will 
be no SIP relaxation. Therefore, we are proposing to approve repeal of 
NMAC 20.2.12--Cement Kilns rule from the New Mexico SIP.

VI. Proposed Action

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

VII. Statutory and Executive Order Reviews

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

[[Page 73525]]

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

List of Subjects in 40 CFR Part 52

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

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

    Dated: November 24, 2014.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2014-29091 Filed 12-10-14; 8:45 am]
BILLING CODE 6560-50-P