[Federal Register Volume 82, Number 246 (Tuesday, December 26, 2017)]
[Proposed Rules]
[Pages 60933-60939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-27296]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2015-0850; FRL-9971-17--Region 6]


Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport for the 2012 Fine 
Particulate Matter National Ambient Air Quality Standard and Revised 
Statutes

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve State Implementation Plan (SIP) revisions submitted by the 
State of New Mexico to address the requirements of section 110(a)(1) 
and (2) of the Clean Air Act (CAA or Act) for 2012 fine particulate 
matter (PM2.5) National Ambient Air Quality Standard 
(NAAQS). The revisions address how the existing SIP provides for 
implementation, maintenance, and enforcement of PM2.5 
(infrastructure SIP or i-SIP). Under CAA sections 110(a)(1) and 
110(a)(2), each state is required to submit a SIP that provides for the 
implementation, maintenance, and enforcement of a revised primary or 
secondary NAAQS. CAA section 110(a)(1) and (2) require each state to 
make a new SIP submission within three years after EPA promulgates a 
new or revised NAAQS for approval into the existing SIP to assure that 
the SIP meets the applicable requirements for such new and revised 
NAAQS. This type of SIP submission is commonly referred to as an 
``infrastructure SIP or ``i-SIP.'' We propose approval of this action 
under Section 110 of the Act. EPA is also proposing to approve a SIP 
revision to update the New Mexico statutes incorporated into the SIP.

DATES: Written comments must be received on or before January 25, 2018.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2015-0850, at http://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Sherry Fuerst, (214) 665-
6454, [email protected]. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available at either location (e.g., CBI)

FOR FURTHER INFORMATION CONTACT:  Sherry Fuerst, (214) 665-6454, 
[email protected]. To inspect the hard copy materials, please 
schedule an appointment with her or Bill Deese at (214) 665-7253.

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

I. Background

    On December 14, 2012 we promulgated a revised primary annual 
PM2.5 NAAQS of 12.0 [micro]g/m\3\ (78 FR 3085, January 
15,2013), and we retained the primary 24-hour PM2.5 standard 
of 35 [micro]g/m\3\ and the secondary standards.

[[Page 60934]]

Primary standards are set to protect human health while secondary 
standards are set to protect public welfare.
    Pursuant to section 110(a)(1) of the CAA, states are required to 
submit an i-SIP within three years after the promulgation of a new or 
revised NAAQS. Section 110(a)(2) of the CAA includes a list of specific 
elements the i-SIP must include to adequately address such new or 
revised NAAQS as applicable. EPA issued guidance addressing the i-SIP 
elements for NAAQS.\1\ The New Mexico Environment (NMED) and 
Albuquerque-Bernalillo County each provided demonstrations of how the 
existing New Mexico SIP meets the applicable 110(a)(2) requirements for 
the 2012 PM2.5 NAAQS on August 6, 2015 and December 8, 2015, 
respectively. Our technical evaluation of these submittals is provided 
in the Technical Support Document (TSD), which is in the rulemaking.\2\
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    \1\ ``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.
    \2\ A detailed discussion of our evaluation can be found in the 
TSD for this action. The TSD can be accessed through 
www.regulations.gov (e-docket EPA-R06-OAR-2015-0850).
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    Additionally, NMED provided updated statutes for the SIP. Sections 
110(a)(2)(E)(ii) and 128 of the CAA require SIPs to contain statutory 
or regulatory provisions that: (1) Any board or body which approves 
permits or enforcement orders under the CAA have at least a majority of 
its members represent the public interest and not derive any 
significant portion of their income from persons subject to permits or 
enforcement orders under the CAA; and (2) any potential conflict of 
interest by members of such board or body or the head of an executive 
agency with similar powers be adequately disclosed.

II. EPA's Evaluation of New Mexico's and Albuquerque-Bernalillo 
County's NAAQS Infrastructure Submissions

    The State's submissions on August 6, 2015 and December 8, 2015, 
demonstrate how the existing New Mexico SIP meets the infrastructure 
requirements for the 2012 PM2.5 NAAQS. A detailed discussion 
of our evaluation can be found in the Technical Support Document TSD 
for this action. The TSD can be accessed through www.regulations.gov 
(e-docket EPA-R06-OAR-2015-0850). Below is a summary of EPA's 
evaluation of the New Mexico i-SIP and Albuquerque-Bernalillo County i-
SIP for each applicable element of 110(a)(2) A-M.
    (A) Emission limits and other control measures: The CAA Sec.  
110(a)(2)(A) requires the SIP to include enforceable emission limits 
and other control measures, means or techniques (including economic 
incentives such as fees, marketable permits, and auctions of emissions 
rights), as well as schedules and timetables for compliance, as may be 
necessary or appropriate to meet the applicable requirements of the Act 
and other related matters as needed to implement, maintain and enforce 
each of the NAAQS.\3\ The New Mexico Environmental Improvement Act 
(EIA), codified in Chapter 74, Article 1 of the New Mexico Statutes 
Annotated 1978 (NMSA), created the New Mexico Environment Department 
(NMED) and the New Mexico Environmental Improvement Board (EIB). 
Statutory authority for Albuquerque-Bernalillo County's air quality 
program, codified in Chapter 74 EIA, Article 2, Air Pollution, of the 
New Mexico statutes, gives the Air Board and Albuquerque Environmental 
Health Department's Air Quality Program (AQP) the authority to 
implement the CAA in Albuquerque-Bernalillo County, New Mexico. NMED 
has jurisdiction over all of New Mexico except for Albuquerque-
Bernalillo County. We will distinguish between these two authorities by 
referring to them as NMED, EIB or the State for everywhere outside of 
Albuquerque-Bernalillo County and as AQP or the Air Board as everything 
pertaining to within Bernalillo County.
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    \3\ The specific nonattainment area plan requirements of CAA 
section 110(a)(2)(I) are subject to the timing requirements of CAA 
section 172, not the timing requirement of CAA section 110(a)(1). 
Thus, CAA section 110(a)(2)(A) does not require that states submit 
regulations or emissions limits specifically for attaining the 2012 
PM2.5 NAAQS. Those SIP provisions are due as part of each 
state's attainment plan, and will be addressed separately from the 
requirements of CAA 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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    The New Mexico Air Quality Control Act (AQCA) codified at NMSA 
1978, Subpart 74-2 et seq., delegates authority to the EIB to adopt, 
promulgate, publish, amend and repeal regulations consistent with the 
AQCA to attain and maintain the NAAQS and prevent or abate air 
pollution. The AQCA also designates the NMED as the State's air 
pollution control agency and the EIA provides NMED with enforcement 
authority everywhere within the State of New Mexico excluding 
Albuquerque-Bernalillo County. Chapter 2 Title 20 of the New Mexico 
Administrative Code (NMAC) establishes NMED as the State's air 
pollution control agency (within the State of New Mexico excluding 
Albuquerque-Bernalillo County) and establishes its enforcement 
authority, referencing the NMSA 1978 (44 FR21019, April 9, 1979; 
revised 49 FR 44101, November 2, 1984; recodification approved in 62 FR 
50518, September 26, 1997, approving various statutory and regulatory 
provisions in New Mexico's SIP). This authority has been employed to 
adopt and submit multiple revisions to the New Mexico SIP.
    With regard to Albuquerque-Bernalillo County, enforceable emission 
limitations and other control measures are authorized by the New Mexico 
AQCA which established the Air Board and those provisions of NMAC Title 
20, Environmental Protection, Chapter 11, Albuquerque-Bernalillo County 
Air Quality Control Board. It can adopt emission standards and 
compliance schedules applicable to regulated entities; emission 
standards and limitations and any other measures necessary for 
attainment and maintenance of national standards; and, enforce 
applicable laws, regulations, standards and compliance schedules, and 
seek injunctive relief within the boundaries of Bernalillo County. This 
authority has been employed to adopt and submit multiple revisions to 
the Albuquerque-Bernalillo County, New Mexico SIP. The approved SIP for 
the State of New Mexico, including Albuquerque-Bernalillo County is 
documented at 40 CFR part 52.1620, Subpart GG.\4\ EPA is therefore 
proposing to find that the New Mexico SIP meets the requirements of 
section 110(a)(2)(A) of the Act with respect to 2012 PM2.5.
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    \4\ http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=d13cf1de493c65047374561758ed5ea3&mc=true&r=PART&n=pt40.4.52#sp40.4.52.gg.
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    (B) Ambient air quality monitoring/data system: Section 
110(a)(2)(B) of the CAA requires SIPs to include provisions for 
establishment and operation of ambient air quality monitors, collecting 
and analyzing ambient air quality data, and making these data available 
to EPA upon request.
    The AQCA provides the authority allowing EIB, NMED and AQP to 
collect air monitoring data, quality-assure the results, and report the 
data (NMSA 1978, 74-2-5.1(B). New Mexico and AQP each maintain and 
operate PM2.5 networks to measure ambient levels. All 
monitoring data is measured using EPA approved methods and subject to 
the EPA quality assurance requirements. NMED and AQP submit all 
required

[[Page 60935]]

data to EPA, following the EPA rules. These networks have been approved 
into the SIP (46 FR 4005, August 6, 1981) and they undergo recurrent 
annual review by EPA.\5\ In addition, NMED and AQP conduct recurrent 
assessments of their monitoring networks every five years, which 
includes an evaluation of ambient monitoring for PM2.5, as 
required by EPA rules. The most recent of these 5-year monitoring 
network assessments were conducted by NMED and AQP in 2015 and EPA 
reviewed and commented on these reviews. The comment letter is in the 
docket.\6\ The NMED and AQP websites provide the monitor locations and 
posts past and current concentrations of criteria pollutants measured 
in these network of monitors.\7\
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    \5\ A copy of the 2016 Annual Air Monitoring Network Plan and 
EPA's approval letter are included in the docket for this proposed 
rulemaking.
    \6\ A copy of the 2015 5-year ambient monitoring network 
assessment and EPA's approval letter are included in the docket for 
this proposed rulemaking.
    \7\ See https://www.env.nm.gov/aqb/monitor/airmonitoringnetwork.html.
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    In summary, New Mexico and Albuquerque-Bernalillo County meet the 
requirement to establish, operate, and maintain an ambient air 
monitoring network; collect and analyze the monitoring data; and make 
the data available to EPA upon request. EPA is proposing to find that 
the current New Mexico SIP meets the requirements of section 
110(a)(2)(B) with respect to 2012 PM2.5.
    (C) Program for enforcement of control measures: The CAA Sec.  
110(a)(2)(C) requires SIPs include the following three elements: (1) A 
program providing for enforcement of the measures in paragraph A above; 
(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).\8\
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    \8\ As discussed in further detail in the TSD.
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    (1) Enforcement of SIP Measures. As noted in (A), the AQCA provides 
authority for the EIB, NMED and AQP to enforce the requirements of the 
AQCA within Albuquerque-Bernalillo County and New Mexico, and any 
regulations, permits or final compliance orders. Its statutes also 
provide the EIB, NMED and AQP with general enforcement powers. Among 
other things, they can file lawsuits to compel compliance with statutes 
and regulations; commence civil actions; issue field citations, conduct 
investigations of regulated entities; collect criminal and civil 
penalties; develop and enforce rules and standards related to 
protection of air quality; issue compliance orders; pursue criminal 
prosecutions; investigate, enter into remediation agreements; and issue 
emergency cease and desist orders. The AQAC also provides additional 
enforcement authorities and funding mechanisms. (NMSA 1978, sections 
74-2-12, 74-2-2, and 74-1-6.F.
    (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. Both the New Mexico (78 FR 
15296, March 11, 2013) and Albuquerque-Bernalillo County (69 FR 78312, 
December 30, 2004) minor NSR permitting requirements are approved as 
part of the SIP.\9\
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    \9\ EPA is not proposing to approve or disapprove the existing 
New Mexico or Albuquerque-Bernalillo County minor NSR programs 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, July 13 2011). EPA believes that a number of states may 
have minor NSR provisions that are contrary to the existing EPA 
regulations for this program. The statutory requirements of CAA 
section 110(a)(2)(C) provide for considerable flexibility in 
designing minor NSR programs.
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    (3) Prevention of Significant Deterioration (PSD) permit program. 
Both Albuquerque-Bernalillo County (80 FR 52401, August 31, 2015) and 
New Mexico (78 FR 15296, March 11, 2013) PSD program portions of the 
SIP cover all NSR regulated pollutants as well as the requirements for 
the 2012 PM2.5 NAAQS and have been approved into the SIP by 
EPA.\10\
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    \10\ As discussed further in the TSD.
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    (D) Interstate and international transport: Under CAA section 
110(a)(2)(D)(i), there are four requirements the SIP must include 
relating to interstate transport. The first two of the four 
requirements are outlined in CAA section 110(a)(2)(D)(i)(I) and require 
that the SIP contain adequate provisions prohibiting emissions to other 
states which will (1) contribute significantly to nonattainment of the 
NAAQS, and (2) interfere with maintenance of the NAAQS. The third and 
fourth requirements are outlined in CAA section 110(a)(2)(D)(i)(II) and 
require that the SIP contain adequate provisions prohibiting emissions 
to other states which will (1) interfere with measures required to 
prevent significant deterioration or (2) interfere with measures to 
protect visibility.
    Both SIP revision submittals included the same attachment with the 
evaluation of CAA section 110(a)(2)(D)(i)(I). This evaluation 
considered the following factors:
     An analysis of the most recent annual PM2.5 
design values to determine which areas near New Mexico violate, or are 
close to violating the 2012 annual PM2.5 NAAQS;
     An analysis of the PM2.5 annual design value 
trends in New Mexico (including Bernalillo County) to determine if the 
PM2.5 concentrations in New Mexico are increasing or 
decreasing; and,
     An investigation of PM2.5 annual design value 
trends in other states to determine whether PM2.5 
concentrations in those areas are increasing or decreasing.
    This evaluation concluded that New Mexico did not significantly 
contribute to nonattainment or interfere with maintenance of the 
PM2.5 NAAQS in other states.
    On March 17, 2016 EPA issued a memo providing information on the 
development and review of SIPs that address CAA section 110(a)(2)(D)(i) 
for the 2012 PM2.5.\11\ We used the information in the memo 
and additional supplemental information for our evaluation and came to 
the same conclusion as the state. In our evaluation, potential downwind 
nonattainment and maintenance receptors were identified. These 
potential receptors were evaluated to determine if New Mexico emissions 
could possibly contribute to the attainment challenges. After reviewing 
air quality reports, modeling reports, designation letters, designation 
technical support documents, attainment plans and other reports for 
these areas, EPA is proposing to approve the SIP revisions as meeting 
the CAA section 110(a)(2)(i)(I) requirement that New Mexico (including 
Albuquerque-Bernalillo County) emissions will not interfere with 
maintenance or contribute significantly to nonattainment of the 2012 
PM2.5 NAAQS for any other state.
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    \11\ March 17, 2016 information memo ``Information on the 
Interstate Transport ``Good Neighbor'' Provision for the 2012 Fine 
Particulate Matter National Ambient Air Quality Standards under 
Clean Air Act Section 110(a)(2)(D)(i)(I).''
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    With regard to CAA section 110(a)(2)(D)(i)(II), both New Mexico and 
Albuquerque-Bernalillo County state that as noted in Element C above, 
they each have a comprehensive EPA-approved PSD and regional haze

[[Page 60936]]

programs. As we have approved both New Mexico and Albuquerque-
Bernalillo County comprehensive PSD programs (80 FR 40915, July 14, 
2015 and 80 FR 52402, August 31, 2015, respectively) and regional haze 
plans (79 FR 60992, October 9, 2014, 77 FR 71119, November 29, 2012, 
respectively), we propose to approve the revisions pertaining to CAA 
section 110(a)(2)(D)(i)(II). A more detailed evaluation of how the SIP 
revisions meet the requirements of CAA section 110(a)(2)(D)(i) may be 
found in the TSD.
    CAA section 110(a)(2)(D)(ii) requires that the SIP contain adequate 
provisions insuring compliance with the applicable requirements of 
sections 126 (relating to interstate pollution abatement) and 115 
(relating to international pollution abatement). As stated in their 
submittals, New Mexico and Albuquerque-Bernalillo County meet the 
section 126 requirements as (1) they have fully approved PSD SIPs 
(Albuquerque-Bernalillo County 80 FR 52401, August 31, 2015 and New 
Mexico 78 FR 15296, March 11, 2013) which include notification to 
neighboring air agencies of potential impacts from each new or modified 
major source and (2) no source or sources have been identified by the 
EPA as having any interstate impacts under section 126 in any pending 
action related to any air pollutant. New Mexico and Albuquerque-
Bernalillo County meet section 115 requirements as there are no 
findings by EPA that New Mexico or Albuquerque-Bernalillo County air 
emissions affect other countries. Therefore, we propose to approve the 
submitted revisions pertaining to CAA section 110(a)(2)(D)(ii).
    (E) Adequate authority, resources, implementation, and oversight: 
CAA 110(a)(2)(E) requires that the SIP 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) Compliance with requirements relating to state 
boards as required under 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. 
Both elements (A) and (E) address the requirement that there is 
adequate authority to implement and enforce the SIP and that there are 
no legal impediments.
    The i-SIP submissions for the 2012 PM2.5 NAAQS describe 
the SIP regulations governing the various functions of personnel within 
the EIB, NMEQ, AQP and the Air Board, including the administrative, 
technical support, planning, enforcement, and permitting functions of 
the program. (NMSA 1978, sections 9-7A-6(B)(4), 9-7A-11A, 74-2-5.1(F) 
and 74-2-5.2).
    With respect to funding, the AQCA 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 
authorizes NMED to collect additional fees necessary to cover 
reasonable costs associated with processing of air permit applications 
(NMSA 1978, sections 9-7A-6(B)(4), 9-7A-11A, 74-2-5.1.(F) and 74-2-
5.2). EPA conducts periodic program reviews to ensure that the state 
has adequate resources and funding to among other things implement and 
enforce the SIP. With respect to funding for AQP and the Air Board, the 
resources to carry out the plan are provided through General Funds, 
Permit Fees and the CAA grant process. Permit Fees are collected under 
the authority of NMSA 1978 section 74-2-7.
    As required by Sec.  110(a)(2)(E)(ii) of the CAA, and the EIA, the 
SIP must stipulate that any board or body, or head of agency with 
similar powers adequately disclose any potential conflicts of interest. 
NMSA 1978 section 74-1-4 provides the Air 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 
permits and enforcement orders or who appear before the board on issues 
related to the CAA or AQCA. The members of the board or body, or the 
head of an agency with similar powers, are required to adequately 
disclose any potential conflicts of interest.
    With respect to assurances that the State and the Air Board have 
responsibility to implement the SIP adequately when it authorizes local 
or other agencies to carry out portions of the plan, the EIA and the 
AQCA designate the NMED and the Air Board (within Albuquerque-
Bernalillo County) as the primary air pollution control agencies. The 
statutes allow for local agencies to carry out some or all the Act's 
responsibilities (NMSA 1978 section 74-2-4.D).
    There is one local air quality control agency, the Air Board, which 
assumes jurisdiction for local administration and enforcement of the 
AQCA in Bernalillo County. There are Albuquerque-Bernalillo County SIP 
provisions which are part of the New Mexico SIP.\12\
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    \12\ Albuquerque/Bernalillo County SIP 40 CFR part 52.1620(e) 
https://www.ecfr.gov/cgi-bin/text-idx?SID=5388fcaf4e0e68b29abfaececc68fca9&mc=true&node=sp40.4.52.gg&rgn=div6.
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    (F) Stationary source monitoring system: CAA Sec.  110(a)(2)(F) 
requires the SIP provide for the establishment of a system to monitor 
emissions from stationary sources and to submit periodic emission 
reports. It must 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 require 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.
    The AQCA authorizes the NMED and Air Board 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 NMSA 1978 section 74-2-5(C)(6). There 
also are SIP-approved state regulations pertaining to sampling and 
testing and requirements for reporting of emissions inventories (20.2 
NMAC Parts 5,7-8, 10-20, 30-34, 40-41, and 72-74. In addition, SIP 
rules establish general requirements for maintaining records and 
reporting emissions (20 NMAC Part 11.47).
    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 SIP 
regulations and additional EPA requirements. The SIP requires this 
information be made available to the public. Provisions concerning the 
handling of confidential data and proprietary business information are 
included in the SIP's regulations (20 NMAC Part 11.90). These rules 
specifically exclude from confidential treatment any records concerning 
the nature and amount of emissions reported by sources. We are 
proposing that the New Mexico SIP meets the requirements of CAASec.  
110(a)(2)(F).
    (G) Emergency authority: CAA Sec.  110(a)(2)(G) requires a 
demonstration that the NMED has the authority to

[[Page 60937]]

restrain any source from causing imminent and substantial endangerment 
to public health or welfare or the environment. The SIP must include an 
adequate contingency plan to implement such authorities as necessary.
    The AQCA provides the NMED and the Air Board with authority to 
address environmental emergencies, inclusive of contingency plans to 
implement emergency episode provisions.
    Upon a finding that any owner/operator is unreasonably affecting 
the public health, safety or welfare, or the health of animal or plant 
life, or property, AQCA authorizes NMED to, after a reasonable attempt 
to give notice, declare a state of emergency and issue without hearing 
an emergency special order directing the owner/operator to cease such 
pollution immediately (NMSA 1978 74-2-10).
    New Mexico promulgated the ``Air Pollution Episode Contingency Plan 
for New Mexico,'' which includes contingency measures, and these 
provisions were approved into the SIP on August 21, 1990 (55 FR 34013).
    Pursuant to 40 CFR 51, Subpart H, Prevention of Air Pollution 
Emergency Episodes, on January 26, 1989, the Air Board adopted the Air 
Pollution Contingency Plan for Bernalillo County [8/21/91, 56 FR 38074; 
40 CFR 52.1639, Prevention of Air Emergency Episodes], which is part of 
the SIP, which covers air pollution episodes and the occurrence of an 
emergency due to the effects of the pollutants on the health of 
persons.
    (H) Future SIP revisions: CAA Sec.  110(a)(2)(H) requires that 
States must 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.
    The AQCA requires the NMED to revise its SIP, as necessary, to 
account for revisions of the NAAQS, new NAAQS, to attain and maintain 
the NAAQS, to abate air pollution, to adopt more effective methods of 
attaining the NAAQS, and to respond to EPA SIP calls concerning NAAQS 
adoption or implementation (NMSA 1978 sections 74-2-5(B)(1) and 74-2-
5.2(B)).
    Albuquerque-Bernalillo County's SIP is a compilation of 
regulations, plans and submittals that act to improve and maintain air 
quality in accordance with national standards. The authority to develop 
or revise the SIP is based on the authority to adopt new regulations 
and revise existing regulations to meet the NAAQS. NMSA 1978 section 
74-7-5 gives the Air Board the authority to perform these functions. 
Section 74-7-5 also gives the Air Board the authority to adopt 
regulations to abate, control and prohibit air pollution throughout 
Albuquerque-Bernalillo County in accordance with the State Rules Act. 
Nothing in New Mexico's statutory or regulatory authority prohibits 
Albuquerque-Bernalillo County from revising the SIP in the event of a 
revision to the NAAQS. The AQCA specifically requires revisions to the 
SIP if the scenarios set forth in CAA section 110(a)(2)(H) occur.
    (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 in element C, above, EPA does not expect infrastructure 
SIP submissions to address subsection (I). The specific SIP submissions 
for designated nonattainment areas, as required under CAA title I, part 
D, are subject to different submission schedules than those for section 
110 infrastructure elements. Instead, EPA will take action on part D 
attainment plan SIP submissions through a separate rulemaking process 
governed by the requirements for nonattainment areas, as described in 
part D.
    (J) Consultation with government officials, public notification, 
PSD and visibility protection: The SIP must meet the following three 
CAA requirements: (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) 
prevention of significant deterioration of air quality and (4) 
visibility protection.
    (1) Interagency consultation: As required by the AQCA, there must 
be a public hearing before the adoption of any regulations or emission 
control requirements and all interested persons must be given a 
reasonable opportunity to submit data, view documents, or argue orally 
or in writing and to examine testimony of witnesses from the hearing 
(NMSA 1978 section 74-2-6B, C, and D). In addition, the AQAC provides 
for 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.'' (NMSA 1978 section 74-
2-5.2(B)). Furthermore, New Mexico's PSD SIP rules mandate 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. The State's 
Transportation Conformity SIP rules also provide procedures for 
interagency consultation, resolution of conflicts, and public 
notification. These rules apply to both New Mexico and Albuquerque-
Bernalillo County.
    (2) Public Notification: The submitted revisions provide the SIP 
regulatory citations requiring both the Air Board and NMED 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 ways in which the public can participate in 
efforts to improve air quality. 20.11.82 NMAC, Rulemaking Procedures--
Air Quality Board, stipulates notice requirements for rulemaking and is 
used as a guide for notice requirements when adopting SIPs.
    (3) PSD and Visibility Protection: The PSD requirements here are 
the same as those addressed under (C). The New Mexico SIP requirements 
for both the state and Albuquerque-Bernalillo County relating to 
visibility and regional haze are not affected when EPA establishes or 
revises a NAAQS. Therefore, EPA has determined that there are no new 
visibility protection requirements due to the revision of the 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.
    (K) Air quality and modeling/data: The SIP must 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 (NMSA 1978 section 
74-2-5.2(B)).
    AQP has the duty, authority and technical capability to conduct air 
quality modeling, pursuant to the AQCA, in order to assess the effect 
on ambient air quality of relevant pollutant emissions; and can provide 
relevant data as part of the permitting and NAAQS implementation 
process (NMSA 1978 section 74-2-5.2(B) and 20.2.72 NMAC and 20.2.74 
NMAC). AQP follows EPA guidelines for air dispersion modeling. Upon 
request, AQP will submit current and future data relating to air 
quality modeling to EPA.

[[Page 60938]]

    Likewise, The NMED has the power and duty, under the AQCA to 
investigate and develop facts providing for the functions of 
environmental air quality assessment (20.2.72 NMAC and 20.2.74 NMAC). 
Past modeling and emissions reductions measures have been submitted by 
the State and approved into the SIP.
    The New Mexico AQCA authorizes and requires NMED to cooperate with 
the federal government and local authorities concerning matters of 
common interest in the field of air quality control, thereby allowing 
the agency to make such submissions to the EPA.
    (L) Permitting Fees: The SIP must require each major stationary 
source to pay permitting fees to the permitting authority, as a 
condition of any permit required under CAA section 504, 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 fee requirements of 20.11.2 NMAC have been approved by EPA as 
meeting the CAA requirements and were incorporated into the 
Albuquerque-Bernalillo County, New Mexico SIP [4/10/80, 45 FR 24468]. 
Albuquerque-Bernalillo County's title V operating permit program 
codified at 20.11.42 NMAC, Operating Permits, was approved by EPA on 9/
8/04 [FR vol. 69, No. 173, pp. 54244-47]. In addition, see element (E) 
above for the description of the mandatory collection of permitting 
fees outlined in the SIP for the entire state.
    (M) Consultation/participation by affected local entities: CAA 
Sec.  110(a)(2)(M) requires that the SIP must provide for consultation 
and participation by local political subdivisions affected by the SIP.
    See element J (1) and (2) for a discussion of the SIP's public 
participation process, the authority to advise and consult, and the PSD 
SIP's public participation requirements. Additionally, the AQCA 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 
(NMSA 1978 section 74-2-5.2(B)). The transportation conformity 
component of New Mexico's SIP requires that interagency consultation 
and opportunity for public involvement be provided before making 
transportation conformity determinations and before adopting applicable 
SIP revisions on transportation-related issues.
    Additionally, with regard to the Air Board, the New Mexico State 
Statute section 74-2-5.2 State Air Pollution Control Agency; Specific 
Duties and Powers of the Department, states that, ``The department is 
the state air pollution control agency for all purposes under federal 
legislation relating to pollution. The department is required to 
``advise, consult, contract 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.''

III. EPA's Evaluation of CAA Section 128: State Boards and Heads of 
Executive Agency, Conflicts of Interest

    On August 6, 2015, New Mexico submitted a SIP revision that 
contains revisions to the New Mexico Statutes Annotated 1978 for 
inclusion into the SIP. The revisions that are necessary for inclusion 
into the State's SIP address the requirements of CAA section 128 in 
relation to State Boards/Heads of Executive Agency and Conflicts of 
Interest/Disclosure.
    In this submittal, New Mexico demonstrated how State Boards or the 
head of an executive agency who approves CAA permits or enforcement 
orders disclose any potential conflicts of interest as required by CAA 
section 128. The State's Conflict of Interest Act and NM EIB Code of 
Conduct was initially approved into the SIP on June 1, 1999. This 
submission updates the prior submission by providing an official change 
of name for the ``Conflict of Interest Act'' to ``Governmental Conduct 
Act'', adding definitions, prohibits public officials from disclosing 
confidential information acquired from local government agency 
positions, more clearly defining contracts involving public officers or 
employees, expanding EIB from 5 to 7 members and correcting grammatical 
errors. The submission included a table specifically outlining all 
these changes. This table is included in the docket.

IV. Proposed Action

    EPA is proposing to approve the August 6, 2015, and 
December 8, 2015 submitted revisions for the SIP for New Mexico and 
Albuquerque-Bernalillo County pursuant to the requirements of CAA 
sections 110(a)(1) and (2) as applicable to the 2012 PM2.5 
NAAQS. The Table below outlines the specific actions EPA is proposing 
to approve. By this action, EPA is also approving revisions to the New 
Mexico SIP regarding State Boards or the head of an executive agency 
who approves CAA permits or enforcement orders for the State of New 
Mexico. The SIP revisions were submitted by the State to update the SIP 
with updated language from NMSA.

 Table 1--Proposed Action on New Mexico Infrastructure SIP Submittal for
                              Various NAAQS
------------------------------------------------------------------------
                                                                  2012
                           Element                               PM2.5
------------------------------------------------------------------------
(A): Emission limits and other control measures..............         A
(B): Ambient air quality monitoring and data system..........         A
(C)(i): Enforcement of SIP measures..........................         A
(C)(ii): PSD program for major sources and major                      A
 modifications...............................................
(C)(iii): Permitting program for minor sources and minor              A
 modifications...............................................
(D)(i): Prohibit emissions to other states which will (1)             A
 significantly contribute to nonattainment of the NAAQS, (2)
 interfere with maintenance of the NAAQS, (3) interfere with
 PSD requirements or (4) interfere with visibility protection
(D)(ii): Interstate and International Pollution Abatement....         A
(E)(i): Adequate resources...................................         A
(E)(ii): State boards........................................         A
(E)(iii): Necessary assurances with respect to local agencies         A
(F): Stationary source monitoring system.....................         A
(G): Emergency power.........................................         A

[[Page 60939]]

 
(H): Future SIP revisions....................................         A
(I): Nonattainment area plan or plan revisions under part D..         +
(J)(i): Consultation with government officials...............         A
(J)(ii): Public notification.................................         A
(J)(iii): PSD................................................         A
(J)(iv): Visibility protection...............................         +
(K): Air quality modeling and data...........................         A
(L): Permitting fees.........................................         A
(M): Consultation and participation by affected local                 A
 entities....................................................
------------------------------------------------------------------------
Key to Table:
A--Proposed Approval.
+--Not germane to infrastructure SIPs.

    Based upon our review of these infrastructure SIP submissions and 
relevant statutory and regulatory authorities and provisions referenced 
in these submissions or referenced in the Albuquerque-Bernalillo 
County, New Mexico or New Mexico SIP, EPA finds that New Mexico and 
Albuquerque-Bernalillo County have the infrastructure in place to 
address all applicable required elements of CAA sections 110(a)(1) and 
(2) to ensure that the 2012 PM2.5, NAAQS are implemented in 
the state and in Albuquerque-Bernalillo County.
    We are proposing to approve the submitted revisions to the New 
Mexico SIP that provides emendation to the New Mexico Statutes 
Annotated 1978 and update the federally approved New Mexico SIP 
accordingly. Those include emendation to the following: New Mexico 
Statutes at Chapter 9 Department of Environment Act Article 7A-6 
Secretary; duties and general powers; and 7A-11 Cooperation with the 
federal government; authority of secretary; single state agency status; 
Chapter 10 Public Officers and Employees Article 16-1 through 10-16-16 
Governmental Conduct; and Chapter 74 Environmental Improvement Article 
1 General Provisions and Article 2 Air Pollution.

V. Incorporation by Reference

    In this action, we are proposing to include in a final rule 
regulatory text that includes incorporation by reference. In accordance 
with the requirements of 1 CFR 51.5, we are proposing to incorporate by 
reference revisions to the New Mexico Statutes as described in the 
Proposed Action section above. We have made, and will continue to make, 
these documents generally available electronically through 
www.regulations.gov and in hard copy at the EPA Region 6 office (please 
contact Ms. Sherry Fuerst for more information).

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved 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, the proposed rule does not have tribal implications and will 
not impose substantial direct costs on tribal governments or preempt 
tribal law as specified by Executive Order 13175 (65 FR 67249, November 
9, 2000).

List of Subjects in 40 CFR Part 52

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

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

    Dated: December 13, 2017.
Samuel Coleman,
Acting Regional Administrator, Region 6.
[FR Doc. 2017-27296 Filed 12-22-17; 8:45 am]
 BILLING CODE 6560-50-P


