[Federal Register Volume 84, Number 75 (Thursday, April 18, 2019)]
[Proposed Rules]
[Pages 16226-16233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07582]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2018-0706; FRL-9991-79-Region 6]


Air Plan Approval; New Mexico; Infrastructure for the 2015 Ozone 
National Ambient Air Quality Standards and Repeal of State Regulations 
for Total Suspended Particulate

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) infrastructure certifications 
from the State of New Mexico and Albuquerque-Bernalillo County to 
address Clean Air Act (CAA or Act) section 110(a)(1) and (2) 
requirements for the 2015 ozone (O3) National Ambient Air 
Quality Standards (NAAQS). The submittals address how the existing SIP 
provides for the implementation, maintenance, and enforcement of the 
2015 O3 NAAQS (infrastructure SIP or i-SIP). The i-SIP 
ensures that the New Mexico SIP is adequate to meet the state's 
responsibilities under the CAA for this NAAQS. The EPA is also 
proposing to approve a SIP revision for the repeal of the New Mexico 
Ambient Air Quality Standards (NMAAQS) for total suspended particulate 
(TSP) in the New Mexico regulations incorporated into the SIP.

DATES: Written comments must be received on or before May 20, 2019.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2018-0706, at https://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

[[Page 16227]]

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 Ms. Karolina Ruan Lei, 
(214) 665-7346, [email protected]. For the full EPA public 
comment policy, information about CBI or multimedia submissions, and 
general guidance on making effective comments, please visit https://www.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 the 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: Ms. Karolina Ruan Lei, (214) 665-7346, 
[email protected]. To inspect the hard copy materials, please 
schedule an appointment with Ms. Karolina Ruan Lei or Mr. Bill Deese at 
214-665-7253.

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

I. Background

    Section 110 of the CAA requires states to develop and submit to the 
EPA a SIP to ensure that state air quality meets the NAAQS. These 
ambient standards currently address six criteria pollutants: Carbon 
monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur 
dioxide. Each federally-approved SIP protects air quality primarily by 
addressing air pollution at its point of origin through air pollution 
regulations and control strategies. The EPA-approved SIP regulations 
and control strategies are federally enforceable.
    On October 26, 2015, the EPA revised the primary and secondary 8-
hour O3 NAAQS from 0.075 ppm to 0.070 ppm to provide 
increased protection of public health and the environment (82 FR 
65291). The 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 contains a list of specific 
elements the i-SIP must include to adequately address such new or 
revised NAAQS as applicable. On September 13, 2013, the EPA issued 
guidance addressing the i-SIP elements for NAAQS.\1\ The State of New 
Mexico and Albuquerque-Bernalillo County i-SIP certifications, 
submitted on November 1, 2018, and September 24, 2018, respectively, 
provide demonstrations of how the existing New Mexico SIP meets the 
applicable section 110(a)(2) requirements for the 2015 O3 
NAAQS. Our technical evaluation of these submittals is provided in the 
Technical Support Document (TSD) for this action.\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, U.S. EPA, Office of Air Quality 
Planning and Standards. September 13, 2013.
    \2\ The TSD for this action can be accessed through 
www.regulations.gov (Docket No. EPA-R06-OAR-2018-0706).
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    Additionally, on November 16, 2018, the State of New Mexico 
provided updated regulations to the New Mexico SIP that pertain to the 
repeal of the air quality standards for TSP in New Mexico. The TSP 
NMAAQS were first adopted into the New Mexico regulations in 1969 and 
have not been revised since their original promulgation. On April 30, 
1971, the EPA established primary and secondary NAAQS for particulate 
matter, with the indicator set as TSP (36 FR 8186). TSP was defined as 
particulate matter up to a nominal size of 25 to 45 micrometers 
([micro]m). The EPA, to better protect human health and the public 
welfare, replaced the indicator for particulate matter from TSP to 
PM10 on July 1, 1987, and established standards for fine 
particulate matter (PM2.5) on July 18, 1997 (52 FR 24634 and 
62 FR 38652). PM10 and PM2.5 refer to particles 
with an aerodynamic diameter less than or equal to a nominal 10 and 2.5 
[micro]m, respectively. The 24-hour PM2.5 standard was 
revised in 2006, and the annual PM2.5 standard was revised 
in 2012 (71 FR 61144, October 17, 2006 and 78 FR 3086, January 15, 
2013).
    Section 110(l) of the CAA requires that a revision to the SIP not 
interfere with any applicable requirement concerning attainment and 
reasonable further progress (as defined in section 171 of the CAA), or 
any other applicable requirement of the Act. The New Mexico SIP 
revision submitted on November 16, 2018, includes a demonstration that 
the repeal of the NMAAQS for TSP will not interfere with the attainment 
and maintenance of the NAAQS or any other CAA requirement.

II. The EPA's Evaluation of New Mexico's and Albuquerque-Bernalillo 
County's i-SIP

    The State's and County's submissions on November 1, 2018, and 
September 24, 2018, demonstrate how the existing New Mexico SIP meets 
the infrastructure requirements for the 2015 O3 NAAQS. As 
mentioned in the previous section, a detailed discussion of our 
evaluation can be found in the TSD for this action, accessible through 
www.regulations.gov (Docket No. EPA-R06-OAR-2018-0706). Below is a 
summary of the EPA's evaluation of the New Mexico i-SIP and 
Albuquerque-Bernalillo County i-SIP for each applicable element of 
110(a)(2)(A) through (M).
    (A) Emission limits and other control measures: The CAA 
section[thinsp]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\
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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 2015 
O3 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, the EPA is not evaluating the existing SIP 
provisions for this purpose. Instead, the 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 Environmental Improvement Act (EIA), codified in 
Chapter 74, Article 1 of the New Mexico Statutes Annotated (NMSA) 1978, 
created the New Mexico Environment Department (NMED) and the New Mexico 
Environmental Improvement Board (EIB). The New Mexico Air Quality 
Control Act (AQCA), codified in NMSA 1978, Chapter 74, Article 2,

[[Page 16228]]

together with the Albuquerque and parallel Bernalillo County Joint Air 
Quality Control Board Ordinances (collectively referred to as the 
``AQCA and Ordinances'') authorized creation of the Joint Air Quality 
Control Board (Air Board) and the Albuquerque Environmental Health 
Department (EHD). The NMED has jurisdiction over all of New Mexico 
except for Albuquerque-Bernalillo County. The NMED, the EIB, and the 
State refer to the authorities in New Mexico outside of Bernalillo 
County, and the EHD, the Air Board, and the County refer to the 
authorities within Bernalillo County.
    The AQCA delegates legislative 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 AQCA and the EIA provides the NMED 
with enforcement authority. Similarly, Albuquerque-Bernalillo County's 
enforceable emissions limitations and other control measures are 
authorized by the AQCA and Ordinances, which give legislative authority 
to the Air Board to attain and maintain the NAAQS. The AQCA and 
Ordinances also state that the EHD is the administrative agency for the 
EIB and give the EHD authority to enforce air quality regulations. The 
authority delegated by the New Mexico statutes and ordinances has been 
employed to adopt and submit multiple revisions to the New Mexico SIP.
    New Mexico's enforceable emission limitations and other control 
measures for O3 and its precursors were promulgated by the 
EIB and can be found in Title 20, Chapter 2 of the New Mexico 
Administrative Code (NMAC) Parts 3, 5, 7, 8, 10, 32-34, 72-75, 79, and 
99. Albuquerque-Bernalillo County's enforceable emissions limitations 
and other control measures for any NAAQS, including O3 and 
its precursors, can be found in Title 20, Chapter 11 NMAC Parts 1-8, 
20-22, 39-41, 43, 46-47, 49, 60-61, 63-68, 90, 100, and 102-103. New 
Mexico and Albuquerque-Bernalillo County regulations that have been 
approved in the New Mexico SIP can be found listed in 40 CFR 
52.1620(c).
    Section 110(a)(2)(A) requires that all measures and other elements 
in the SIP be enforceable. To satisfy element A, an air agency's 
submission should identify existing EPA-approved SIP provisions or new 
SIP provisions that the air agency has adopted and submitted for EPA 
approval that limit emissions of pollutants relevant to the subject 
NAAQS. New Mexico and Albuquerque-Bernalillo County have each provided 
the relevant provisions that have been approved into the New Mexico 
SIP. The EPA is therefore proposing to find that the New Mexico SIP 
meets the requirements of section 110(a)(2)(A) of the CAA with respect 
to the 2015 O3 NAAQS.
    (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 the EPA upon request.
    The AQCA provides the authority necessary for the NMED and the EHD 
to collect air monitoring data, quality-assure the results, and report 
the data in order to fulfill the requirements of CAA section 
110(a)(2)(B) (NMSA 1978, section 74-2-5.1).
    New Mexico and Albuquerque-Bernalillo County each maintain and 
operate air monitoring networks to measure ambient levels of 
pollutants, including O3. All monitoring data is measured 
using EPA-approved methods and subject to EPA quality assurance 
requirements. The NMED and the EHD submit all required data to the EPA, 
following EPA rules. These networks have been approved into the SIP (46 
FR 4005, August 6, 1981) and they undergo recurrent annual review by 
the EPA.\4\ In addition, the NMED and the EHD conduct recurrent 
assessments of their monitoring networks every five years, which 
include an evaluation of ambient monitoring for O3, as 
required by EPA rules. The most recent of these 5-Year Monitoring 
Network Assessments were conducted by the NMED and the EHD in 2015, and 
the EPA reviewed and commented on these reviews. The comment letters 
are in the docket for this rulemaking.\5\ The NMED and the EHD websites 
provide the monitor locations and post past and current concentrations 
of criteria pollutants measured in these networks of monitors.\6\
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    \4\ Copies of the 2018 Annual Air Monitoring Network Plans and 
the EPA's approval letters for New Mexico and Albuquerque-Bernalillo 
County are included in the docket for this proposed rulemaking.
    \5\ Copies of the 2015 5-Year Ambient Monitoring Network 
Assessments. Most recent Annual Network Plans, and EPA's approval 
letters for New Mexico and Albuquerque-Bernalillo County are 
included in the docket for this proposed rulemaking.
    \6\ For New Mexico air monitors and current air quality, see 
http://nmaqinow.net/. For Albuquerque-Bernalillo County air monitors 
and current air quality, see http://www.cabq.gov/airquality/air-quality-monitoring.
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    In summary, New Mexico and Albuquerque-Bernalillo County meet the 
requirements to: Establish, operate, and maintain an ambient air 
monitoring network; collect and analyze the monitoring data; and make 
the data available to the EPA upon request. The EPA is proposing to 
find that the current New Mexico SIP meets the requirements of CAA 
section 110(a)(2)(B) with respect to the 2015 O3 NAAQS.
    (C) Program for enforcement of control measures: The CAA 
section[thinsp]110(a)(2)(C) requires SIPs include the following three 
elements: (1) A program providing for enforcement of the measures in 
subsection A of this action, 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).\7\
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    \7\ 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 NMED and the EHD to enforce the requirements of the 
AQCA and any regulations of the EIB, permits or final compliance 
orders. Its statutes also provide the NMED and the EHD with general 
enforcement powers. Among other things, the NMED and the EHD 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; conduct 
investigations; enter into remediation agreements; and issue emergency 
cease and desist orders. The AQCA 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.\8\
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    \8\ The 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 the EPA's 
regulations governing this program. The 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 the EPA to approve the infrastructure SIP for 
element C (76 FR 41075 [41076-41079], July 13, 2011). The 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 section 110(a)(2)(C) provide for 
considerable flexibility in designing minor NSR programs.

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[[Page 16229]]

    (3) Prevention of Significant Deterioration (PSD) permit program. 
The Albuquerque-Bernalillo County and New Mexico PSD program portions 
of the SIP cover all NSR regulated pollutants as well as the 
requirements for the 2015 O3 NAAQS and have been approved by 
the EPA (80 FR 52401, August 31, 2015, and 78 FR 15296, March 11, 
2013).\9\
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    \9\ As discussed in further detail in the TSD.
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    (D) Interstate transport, and interstate and international 
pollution abatement: 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.
    The State of New Mexico and Albuquerque-Bernalillo County 
submittals did not include how the current New Mexico SIP meets CAA 
section 110(a)(2)(D)(i)(I) requirements. The NMED and the EHD stated 
that they are currently working with the EPA to address this 
requirement as it relates to the 2015 O3 NAAQS as a 
sufficient basis for a submittal addressing these requirements does not 
yet exist. The NMED and the EHD indicate that they will continue to 
work with the EPA to develop an appropriate submittal for this element.
    As the submittals from the State of New Mexico and Albuquerque-
Bernalillo County did not include how the New Mexico SIP meets CAA 
section 110(a)(2)(D)(i)(I) requirements, we will only discuss how the 
submittals address CAA sections 110(a)(2)(D)(i)(II) and 
110(a)(2)(D)(ii).
    The SIP submission stated that as noted in subsection C of this 
action, shown above, Albuquerque-Bernalillo County and New Mexico each 
have comprehensive EPA-approved PSD programs meeting the prevention of 
significant deterioration of air quality requirement of CAA section 
110(a)(2)(D)(i)(II) (80 FR 52402, August 31, 2015, and 80 FR 40915, 
July 14, 2015, respectively). With respect to the visibility element of 
CAA section 110(a)(2)(D)(i)(II), both Albuquerque-Bernalillo County and 
New Mexico have a regional haze program in place that fully meets the 
requirements of 40 CFR 51.309 that have been approved by the EPA into 
the New Mexico SIP. The Albuquerque-Bernalillo County regional haze SIP 
was approved by EPA on November 29, 2012 (77 FR 71119). The New Mexico 
regional haze SIP was approved in two actions; the first action, 
promulgated on November 27, 2012, approved the majority of the regional 
haze SIP (77 FR 70693), and the second action, promulgated on October 
9, 2014, addressed best available retrofit technologies (79 FR 60985). 
As we have approved both New Mexico and Albuquerque-Bernalillo County 
comprehensive PSD programs and regional haze plans, we propose to 
approve the current SIP meets CAA section 110(a)(2)(D)(i)(II) 
requirements.
    CAA section 110(a)(2)(D)(ii) requires that the SIP contain adequate 
provisions ensuring 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 CAA section 126 in any 
pending action related to any air pollutant. New Mexico and 
Albuquerque-Bernalillo County meet CAA section 115 requirements as 
there are no findings by the EPA that New Mexico or Albuquerque-
Bernalillo County air emissions affect other countries. Therefore, we 
propose to approve that the current SIP meets requirements for CAA 
section 110(a)(2)(D)(ii).
    (E) Adequate authority, resources, implementation, and oversight: 
CAA section 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 subsections A and E of this action address the requirement that 
there is adequate authority and no legal impediments to implement and 
enforce the SIP.
    The i-SIP submissions for the 2015 O3 NAAQS describe the 
SIP regulations governing the various functions of personnel within the 
NMED, the EIB, the EHD, 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-11(A), 74-2-5.1(F) and 74-2-5.2).
    With respect to funding, the AQCA requires the 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 the 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-11(A), 74-2-5.1(F) and 74-2-
5.2). The 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 the EHD 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.
    The State and County addressed element E requirements pertaining to 
CAA section 128 requirements for state boards. The EIA, NMSA 1978, 
section 74-1-4, provides that the EIB 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 CAA or the AQCA. 
Likewise, Albuquerque-Bernalillo County require that the Air Board 
follows the same requirements under the AQCA, NMSA 1978, section 74-2-
4(B). The members of the board or body, or the head of an agency with 
similar

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powers, are required to adequately disclose any potential conflicts of 
interest.
    Regarding assurances concerning reliance on local government 
agencies, the State indicates that the City of Albuquerque-Bernalillo 
County is authorized to carry out all portions of New Mexico's SIP 
within the jurisdictional boundaries of Bernalillo County. The 
Albuquerque-Bernalillo County SIP provisions are part of the New Mexico 
SIP.\10\ However, the NMED and the EIB retain oversight authority in 
the event the local authority fails to act (AQCA, NMSA 1978, section 
74-2-4).
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    \10\ See approved Albuquerque-Bernalillo County statutes in the 
New Mexico SIP at 40 CFR 52.1620(e).
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    Based upon review of the SIP submissions for the 2015 O3 
NAAQS and relevant statutory and regulatory authorities and provisions 
referenced in the submission or referenced in the New Mexico SIP, the 
EPA believes that the requirements of CAA section 110(a)(2)(E) are met.
    (F) Stationary source monitoring system: CAA 
section[thinsp]110(a)(2)(F) requires that the SIP provide for the 
establishment of a system to monitor emissions from stationary sources 
and to submit periodic emission reports. Element F requires 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 EIB and the 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 
are also 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). For the County, SIP 
rules establish general requirements for maintaining records and 
reporting emissions (20.11.47 NMAC).
    The NMED uses the data received to track progress towards 
maintaining the NAAQS, develop control and maintenance strategies, 
identify sources and general emission levels, and determine compliance 
with SIP regulations and additional EPA requirements. The SIP requires 
this information be made available to the public. The County also has 
provisions concerning the handling of confidential data and proprietary 
business information; these provisions exclude from confidential 
treatment any records concerning the nature and amount of emissions 
reported by sources (20.11.90 NMAC).
    From reviewing the State and County submittals and the relevant 
regulations and statutes, we are proposing that the New Mexico SIP 
meets the requirements of CAA section[thinsp]110(a)(2)(F).
    (G) Emergency authority: CAA section[thinsp]110(a)(2)(G) requires a 
demonstration that the state has the authority to 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 EHD with authority to address 
environmental emergencies, inclusive of contingency plans to implement 
emergency episode provisions.
    Upon a finding that an owner or operator is unreasonably affecting 
the public health, safety or welfare, or the environment, the AQCA 
authorizes the NMED and the EHD to, after a reasonable attempt to give 
notice, declare a state of emergency and issue without hearing an 
emergency special order directing the owner or operator to cease such 
pollution immediately (NMSA 1978, section 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). 
Similarly, the Air Board adopted into the SIP the Air Pollution Episode 
Contingency Plan for Albuquerque-Bernalillo County, which covers air 
pollution episodes and the occurrence of an emergency due to the 
effects of the pollutants on the health of persons (56 FR 38073, August 
12, 1991).
    Based upon review of the infrastructure SIP submissions, the EPA 
believes that the requirements of CAA section 110(a)(2)(G) are met.
    (H) Future SIP revisions: CAA section[thinsp]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 State of New Mexico and Albuquerque-Bernalillo County each 
responded that the New Mexico 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, revise 
existing regulations, and conduct business in a manner to meet the 
NAAQS. NMSA 1978, section 74-7-5 gives the board authority to perform 
these functions. The AQCA authorizes and requires the State and County 
to revise its SIP, as necessary, to account for: Revisions of the 
NAAQS, newly promulgated NAAQS, attaining and maintaining the NAAQS, 
abating air pollution, adopting more effective methods of attaining the 
NAAQS, and responding to EPA SIP calls concerning NAAQS adoption or 
implementation (NMSA 1978, sections 74-2-5(B)(1) and 74-2-5.2(B)). 
Nothing in New Mexico's statutory or regulatory authority prohibits the 
State or Albuquerque-Bernalillo County from revising the SIP in the 
event of a new or revised NAAQS. Based upon review of the 
infrastructure SIP submissions, the EPA believes that the requirements 
of CAA section 110(a)(2)(H) are met.
    (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.
    The EPA does not expect infrastructure SIP submissions to address 
element 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 CAA section 110 infrastructure 
elements. Instead, the 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.

[[Page 16231]]

    (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, sections 74-2-6(B), (C), and (D)). In addition, the AQCA 
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 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 NMED and the EHD to regularly 
notify the public of instances or areas in which any NAAQS are 
exceeded, advise the public of the health hazards 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. Additional public notification 
concerning compliance with the NAAQS is accomplished by real-time 
publishing of air quality data from NMED's monitoring network to the 
NMED website, and from Albuquerque-Bernalillo County's monitoring 
network available via the EPA's Air Quality System Data Mart website.
    (3) PSD. The PSD requirements here are the same as those addressed 
under subsection C of this action.
    (4) Visibility protection. The New Mexico SIP requirements for both 
the state and Albuquerque-Bernalillo County relating to visibility and 
regional haze are not affected when the EPA establishes or revises a 
NAAQS. Therefore, the 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.
    Based upon the review of the infrastructure SIP submissions for the 
2015 O3 NAAQS, and relevant statutory and regulatory 
authorities and provisions referenced in the submission or referenced 
in New Mexico's SIP, the EPA believes that the requirements of CAA 
section 110(a)(2)(J) are met.
    (K) Air quality and modeling/data: Element K requires that the SIP 
provide for performing air quality modeling to predict the effects on 
ambient air quality from emissions of any NAAQS pollutant, and for 
submission of such data to the EPA upon request.
    The NMED and the EHD have 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)). The NMED 
and the EHD follow EPA guidelines for air dispersion modeling. Upon 
request, the NMED and the EHD will submit current and future data 
relating to air quality modeling to the EPA.
    The NMED and the EHD have the power and duty under the AQCA to 
investigate and develop facts, which provide for the functions of 
environmental air quality assessment (NMSA 1978, section 74-2-5.1(A)). 
Past modeling and emissions reductions measures have been submitted by 
the State and County and approved into the SIP. The AQCA also 
authorizes and requires the 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.
    Based upon review of the infrastructure SIP submissions for the 
2015 O3 NAAQS, the EPA finds that New Mexico and 
Albuquerque-Bernalillo County, have adequate infrastructure needed to 
address CAA section 110(a)(2)(K).
    (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 the EPA.
    For New Mexico, the AQCA authorizes the EIB to establish an 
emission fee schedule and a construction permit fee schedule to recover 
the reasonable costs of evaluating permit applications, and issuing and 
enforcing permits (NMSA 1978, section 74-2-7). Relevant New Mexico 
regulations that have been approved into the SIP include 20.2 NMAC 
Parts 75 and 71 (as it relates to Part 75), which cover construction 
and operating permit fees (77 FR 18923, March 29, 2012). For 
Albuquerque-Bernalillo County, the relevant regulations covering permit 
fees that have been approved by the EPA include 20.11 NMAC Parts 2 and 
41 (77 FR 30900, May 24, 2012, and 82 FR 29421, June 29, 2017). In 
addition, see subsection E of this action, above, for the description 
of the mandatory collection of permitting fees outlined in the SIP for 
the entire state of New Mexico.
    Based upon review of the infrastructure SIP submissions for the 
2015 O3 NAAQS, the EPA proposes that the requirements of CAA 
section 110(a)(2)(L) are met.
    (M) Consultation/participation by affected local entities: CAA 
section[thinsp]110(a)(2)(M) requires that the SIP must provide for 
consultation and participation by local political subdivisions affected 
by the SIP.
    See subsection J (1) and (2) of this action for a discussion of the 
SIP's public participation process, the authority to advise and 
consult, and the PSD SIP's public participation requirements. For New 
Mexico, the AQCA 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 (NMSA 1978, 
section 74-2-5.2(B)). For, Albuquerque-Bernalillo County, the AQCA and 
implementing regulations provide for consultation with local political 
subdivisions affected by the Albuquerque-Bernalillo County elements of 
the New Mexico SIP.
    The EPA is proposing to find that the Albuquerque-Bernalillo County 
and New Mexico submittals meet the requirements of CAA section 
110(a)(2)(M) for the 2015 O3 NAAQS.

[[Page 16232]]

III. The EPA's Evaluation of New Mexico's Total Suspended Particulate 
Standard Repeal

    On November 16, 2018, New Mexico submitted a SIP revision that 
contains modifications to the NMAC for inclusion into the SIP. The 
modifications consist of a repeal of the NMAAQS for TSP contained in 
section 109 of 20.2.3 NMAC, Ambient Air Quality Standards. New Mexico 
demonstrates how the SIP revision will not negatively impact the 
attainment status of the state's particulate matter attainment areas or 
any other CAA requirement.\11\
---------------------------------------------------------------------------

    \11\ See the State of New Mexico's November 16, 2018, submittal, 
Exhibit 6: Demonstration of Noninterference Under Federal Clean Air 
Act, Section 110(l), available in the docket for this action.
---------------------------------------------------------------------------

    The submittal indicates that the ambient air quality standards for 
TSP are no longer consistent with modern air quality regulations. The 
NMED's Air Quality Bureau has conducted a thorough analysis of the 
particulate standards in 20.2.3.109 NMAC and has concluded that the 
standards: (1) Can be repealed without a relaxation of emissions 
controls or an adverse effect on air quality, (2) are not necessary to 
maintain the NAAQS for particulate matter in New Mexico, and (3) will 
not impact the attainment status of the New Mexico's particulate matter 
attainment areas or any other CAA requirement. In the submittal, the 
NMED concluded that sufficient rules and procedures other than section 
109 from 20.2.3 NMAC are in place to ensure compliance with the 
particulate matter NAAQS.
    The TSP NAAQS were replaced in 1987 by PM10 standards, 
and PM10 and PM2.5 are the current indicators for 
particulate matter. New Mexico has a fully approved SIP that meets CAA 
infrastructure requirements for the 2006 and 2012 PM2.5 
NAAQS that address health and welfare concerns for particulate matter 
(78 FR 4337, January 22, 2013 and 83 FR 12493, March 22, 2018). In the 
submittal, New Mexico also lists regulations that are still in place to 
address nuisance particulate matter. The NMED rules that limit and 
control emissions of particulate matter include enforceable emission 
limits, control measures, permits, fees, and compliance schedules and 
are found at 20.2 NMAC Parts 5, 7, 8, 10, 13-19, 22, 60-61, 65-66, 72-
75, 79, and 99.
    The repeal of the TSP NMAAQS will not affect ongoing efforts to 
reduce PM10 levels in the Anthony, New Mexico 
PM10 nonattainment area (Do[ntilde]a Ana County). As stated 
in the State's submittal, the NMED determined that all point and area 
sources of PM10, in or affecting the area, to be de minimis, 
except for unpaved roads, unvegetated and sparsely vegetated areas, and 
range lands. The paving of roads was determined to be economically 
infeasible, the enhancement of ground cover in the region to be 
technologically infeasible, and emissions from range lands to be 
nonanthropogenic. The NMED is developing a dust mitigation plan for 
both Do[ntilde]a Ana County and Luna County, and is also developing a 
fugitive dust rule that will be applicable in areas of the State 
requiring a mitigation plan in accordance with 40 CFR 51.930.
    After evaluating the State's submittal, the EPA agrees with the 
State's conclusion that the removal of the TSP NMAAQS from the New 
Mexico SIP will not interfere with any applicable requirement 
concerning attainment and reasonable further progress, or any other 
applicable requirement of the CAA.

IV. Proposed Action

    The EPA is proposing to approve the November 1, 2018, and September 
24, 2018, submittals for New Mexico and Albuquerque-Bernalillo County 
pursuant to the requirements of CAA sections 110(a)(1) and (2) as 
applicable to the 2015 O3 NAAQS. Table 1 below outlines the 
specific actions the EPA is proposing to approve. The EPA is also 
proposing to approve revisions to the New Mexico SIP pertaining to the 
repeal of the TSP ambient air quality standard for the State of New 
Mexico.

 Table 1--Proposed Action on New Mexico Infrastructure SIP Submittal for
                              Various NAAQS
------------------------------------------------------------------------
                                                                 2015 O3
                            Element
------------------------------------------------------------------------
(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 modifications        A
(C)(iii): Permitting program for minor sources and minor              A
 modifications................................................
(D)(i)(I): Prohibit emissions to other states which will (1)         NS
 significantly contribute to nonattainment of the NAAQS, (2)
 interfere with maintenance of the NAAQS......................
(D)(i)(II): Prohibit emissions to other states which will (3)         A
 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
(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 entities        A
------------------------------------------------------------------------
Key to Table:
A--Approve;
+--Not germane to infrastructure SIPs
NS--No submittal. EPA may take future action in a separate rulemaking
  action.


[[Page 16233]]

    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, the EPA finds that New Mexico and 
Albuquerque-Bernalillo County have the infrastructure in place to 
address required elements of CAA sections 110(a)(1) and (2) to ensure 
that the 2015 O3 NAAQS are implemented throughout the State 
of New Mexico, including Albuquerque-Bernalillo County.
    We are also proposing to approve the submitted revisions to the New 
Mexico SIP that provide modifications to the NMAC and update the 
federally approved New Mexico SIP accordingly. The approved SIP 
revision will repeal the TSP NMAAQS from section 109 of 20.2.3 NMAC, as 
the EPA found that such a revision will not adversely affect the 
attainment of applicable CAA requirements.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the 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 FR 3821, 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, Ozone, Particulate matter, 
Reporting and recordkeeping requirements.

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

    Dated: April 10, 2019.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2019-07582 Filed 4-17-19; 8:45 am]
 BILLING CODE 6560-50-P


