## F:ECEIVED zn05 MAY -4 PM 2: 32 

# State ofNew

# Me*iooL ."F;:AiRS DiVISION 

## Office of the Governor Bill Richardson Governor


### April 25, 2005

DearMayor Greene: Mayor Richard Greene Regional Administrator U.S. EnvironmentalProtection Agency, Region 6 1445 Ross Avenue Dallas, TX 75202-2733 l\ASPEC ASST _. 

### On behalfofthe New Mexico Environment Department (NMED), I am plleallea'to 

### submit to the Environmental ProtectionAgency (EPA) the enclosed revisions to the State ImplementationPlan. This revision includes an amendment to the New Mexico Air QualityControl Act,\'idoption ofNew Mexico Administrative Code (NMAC) regulation 20.2.66 NMAC

- 

### Cotton Gins'Jand amendments to 

### regulations 20.2.72- 

### Construction Permits, 20.2.73

- 

### Notice of t:rentandEmissions InventoryRequirements, and 20.2.75

- 

### Construction PermitFees. The hearing records for these SIP revisions are attached, which includethe filed regulations, transcripts, exhibits, public notices, affidavits of publication, notices ofintentto testify, and public comments. Ifthere are any questions concerning this SIP submittal, please contactMaryUhl, Acting Air Quality Bureau Chief, at (505) 955-8086. Sincerely,

# Ik'<?'~·.( Bill Richardson GovernorofNew Mexico
cc: Tom Diggs, EPA Region 6 DavidNeleigh, EPARegion 6 Ron Curry, NMED, Cabinet Secretary Mary Uhl, NMED, 

### Air QualityBureau

State Capitol • Room 400 • 

### SantaFe, NewMexico 87501 • 5°5-476-2200 • 

### www.governor.state.nm.us

### FILED V/iTH STATE**RECO~DS (~Fi!**  

### T 

### ER 

## 2005 Kp.R - 2 

## PH I: If

## 8 NMAC TRANSMITTAL FORM

New 

# GJ Amendment 

# D Renumber 

# D Repeal 

# D Emergency 

# D

No x Yes

Name:

TItle: Gay Dillingham Chair Please listattachments andInternetsite(s) if applicable 

### 10/05/04 

### 04/07/05

Check if delegated authority 

# 0

SRC-200D-02 5/26/2000

# ~/, 

# /05 Date Si nedTITLE 20 CHAPTER2 PART 66 ENVIRONMENTAL PROTECTION AIR QUALITY (STATEWIDE) COTTON GINS
20.2.66.1 ISSUING AGENCY: Environmental Improvement Board. [20.2.66.1 NMAC

- N, 04/07/05] 20.2.66.2 SCOPE: All persons who intend to construct ormodifY a cotton ginning facility as defmed in this part, except as otherwise providedby this part. [20.2.66.2 NMAC

- N, 04/07/05] 20.2.66.3 STATUTORY AUTHORITY: Environmental ImprovementAct, NMSA 1978, Section 74-1- 8(A)(4) andAir Quality Control Act, NMSA 1978, Sections 74-2-1 et seq., including specifically, Section 74-2-5(A) and (B), and Section 74-2-7(A)(l), (B), (C), (D) and (0). [20.2.66.3 NMAC

-N, 04/07/05] 20.2.66.4 DURATION: Permanent. [20.2.66.4 NMAC

- N, 04/07/05] 20.2.66.5 EFFECTIVE DATE: April 7, 2005 except where a later date is cited atthe end ofa section. [20.2.66.5 NMAC

- N, 04/07/05] 20.2.66.6 OBJECTIVE: The objective ofthis part is to specifY the best system ofemissions reduction for cotton ginning facilities underthe provisions ofAir Quality Control Act, NMSA 1978 ("the act"), Section 74-2- 7(0), andto assure thatpermits issued underthis part assure the maintenance ofnational ambient air quality standards, in accordance with Section 74-2-5 (A) and (B)(1) ofthe act andthe federal Clean AirAct, Section 11O(a). [20.2.66.6 NMAC

- N, 04/07/05] 20.2.66.7 part: DEFINITIONS: In addition to the terms defmed in 20.2.2 NMAC (Definitions), as used in this A. "Bale" means a unit ofmeasurementto denote an amount oflint cotton with anominal weight of 500 pounds. B. "Class I area" means any federal land areathat is classified orreclassified as class I as described in 20.2.74.108 NMAC. C. "Cotton ginning facility" or "facility" means any facility that separates seed, lint, andtrash from raw cotton, and bales lintcotton for further processing, that will emitno more than fifty (50) tons peryear ofany regulated air contaminant for which there is anational ambient air quality standard, andthathas the standard industrial classification code 0724 (cotton ginning) andthe North American industrial standard classification code 115111 (cotton ginning). D. "Department" is the state ofNew Mexico environment department. E. "Fugitive emissions" means those emissions that could notreasonably pass through a stack, chimney, vent, or otherfunctionally equivalentopening. F. "High efficiency cyclone dust collector" means any cyclone type collector ofthe 2D-2D or ID3D configuration. These designations referto the ratio ofcylinderto cone length, where D is the diameter ofthe cylinderportion. A 2D-2D cyclone would exhibit a cylinder length of2 x D and a cone length of2 x D, with a ninety percent (90%) efficiency for total suspendedparticulates. A ID-3D cyclone would exhibit a cylinderlength ofI x D and a cone length of3 x D, with aninety-five percent (95%) efficiency for total suspended particulates. G. "High pressure exhausts" means the exhaust from all airhandling systems located at a cotton gin that are not defined as 'lowpressure exhausts'. H. "Low pressure exhausts" means the exhaust from systems at a cotton gin thathandle airfrom the cotton lint handling system and battery condenser. I. "Non-attainment" means designatedbythe United States environmental protection agency as not meeting one ormore ofthe national ambient air quality standards. J. "Opacity" means the degree to which emissions reduce the transmission oflight and obscure the view ofan object in the background.

20.2.66 NMACK. "Owner or operator" is any person who owns or operates aprocess orprocess equipment atthe source for which coverage underthe permithas been granted. L. "20.2.72 NMAC" means the air quality control regulation 20.2.72 NMAC (Construction Permits); that is, Part 72 ofTitle 20, Chapter 2 ofthe New Mexico administrative code. [20.2.66.7 NMAC

- N, 04/07/05] 20.2.66.8 [RESERVED] 20.2.66.9 DOCUMENTS: Documents incorporated and cited in this partmay be viewed at the New Mexico environment department, air quality bureau, 2048 Galisteo Street, SantaFe, NM 87505. [20.2.66.9 NMAC

- N, 04/07/05] 20.2.66.10 to 20.2.66.199 [RESERVED] 20.2.66.200 ISSUANCE OF PERMIT UNDER 20.2.72 NMAC: The department shall not deny issuance or revision ofan air quality construction permitunder 20.2.72 NMAC to any cotton ginning facility, as defmed in Subsection C of20.2.66.7 NMAC, ifthe permit application and the permit conditions meetthe requirements ofthis part. [20.2.66.200 NMAC

- N, 04/07/05] 20.2.66.201 PERMIT APPLICATION REQUIREMENTS: Permit applications for each permit issued in accordance with 20.2.66.200 NMAC shall: A. meet all requirements for the contents ofpermit applications underParagraphs (I) through (3), (5) through (I 5) ofSubsection A of20.2.72.203 NMAC and Subsections B through E of20.2.72.203 NMAC; B. state thatthis part is applicable to the cotton ginning facility; C. propose maximum allowable annual andhourly emissions from the facility, and include proposed limitations to hours ofoperations and other limitations that will result in allowable emissions ofno more than fifty (50) tons peryear ofany regulated air contaminant for which there is a national ambient air quality standard; and D. include the proposed best system ofemissions reduction for the facility, which for purposes ofthis part shall include at aminimum the controls, limitations, plans and practices setout in 20.2.66.202 NMAC. [20.2.66.201 NMAC

- N, 04/07/05] 20.2.66.202 PERMIT REQUIREMENTS: Permits issued in accordance with 20.2.66.200 NMAC shall include the following best system ofemissions reduction, as well as otherconditions, includingbutnot limitedto recordkeeping, monitoring, reporting requirements, andtest methods, as requiredto ensure the enforceability of permitconditions. A. Limitations from application: except as modified bythe department, the proposed emission reduction system and limitations specified in the application. B. Emissions control on highpressure exhausts. (1) All emissions from high pressure exhausts shall be controlledby the use ofahigh efficiency cyclone dust collectors (the terms high pressure exhaust and high efficiency cyclone dust collectors are defined in 20.2.66.7 NMAC ). (2) The opacity ofvisible emissions from cyclones shall not exceed twentypercent (20%). C. Emissions control on lowpressure exhausts. (1) All emissions from low pressure exhausts (as defined in Subsection H of20.2.66.7 NMAC ) shall be controlledbythe use ofscreens with amesh size of70 by 70 orfiner (United States sieve), orthe use of perforated condenserdrums with holes not exceeding 0.045 inches in diameter, or with equipment ofequivalent or higher design efficiency, as determined bythe department. (2) The opacity ofvisible emissions from low pressure exhausts shallnot exceed twentypercent (20%). D. A fugitive dust managementplan that includes the following, ormethods at least as effective in controlling fugitive dust. (1) Complete enclosure ofall burrhoppers. (2) Measures to be taken to control fugitive dust emissions from any source, process or operation occurring within the cotton gin buildingto assure that no fugitive dust emissions to the outside atmosphere from any door, vent, orwindow are visible.

20.2.66 NMAC 2(3) Measures to be taken to minimize fugitive emissions from the handling, transportation or disposition ofany substance ormaterial that is likelyto be scatteredbythe air or wind atthe facility, including but not limited to materials in the gin yard andhaul roads, including all open areas, right-ofways, storage piles, and vehicles atthe facility. Such measures shall be sufficientto assure thatno visible fugitive dust emissions generated from the property leave the property. Emissions maybe controlledby watering, paving and cleaning, surfactants, or otherequivalentmeans. (4) The posted speed limit for all vehicles on unpaved haul roads and in unpaved yard areas shall be no more than 10 miles perhour. E. Requirements for fuel burning equipment. This subsection applies to fuel burning equipment such as driers and humidifiers, but does not apply to mobile sources (such as loaders, haul trucks, and othervehicles). (1) Any emissions from fuel burning equipment shall not exhibitgreaterthan 20 percent opacity. (2) The owner or operator shall use only the following fuels: natural gas, liquefiedpetroleum gas (LPG), propane, orNo.2 diesel fuel with a sulfurcontentequal to or less than 0.05 percent by weight. (3) The owner or operator shall operate andmaintain the equipment such that emissions and opacity limitations in the permit are met. F. Location restrictions. (1) The distance from the cotton gin to the property boundary shall be at leastten (10) feet in all directions, orthe distance established in Paragraph (2) ofSubsection F of20.2.66.202 NMAC, whicheveris greater. (2) The minimum distance (in feet) in all directions from the cotton gin to the property boundary shall be calculated as the multiple ofthe square ofthe maximum emission rate (in pounds ofPM10 perhour) and 0.2385, plus the multiple ofthe maximum emissionrate (in pounds ofPMIO perhour) and 54.0718, minus the value 816.0886. (3) The distance from the cotton ginto the nearest existing state park, recreation area, or school shall be at least 0.25 miles. The distance from the cotton gin to the nearest class I area shall be at leastthree miles. G. Maintenance ofequipment. (1) All materials handling systems and control equipment shall be installed and operated as required to assure thatpermitconditions will be met. (2) The owner or operator shall conductdaily visual inspection ofthe material handling systems for leaks, breaks or othervisible signs ofequipmentmalfunctions, andrepair such leaks, breaks ormalfunctions in a timely manner. (3) The owner or operator shall maintain arecord ofthe daily inspections, including any equipment malfunctions discovered and corrective action taken to repairthe malfunction. [20.2.66.202 NMAC

- N, 04/07/05] HISTORY OF 20.2.66 NMAC: [RESERVED]

20.2.66 NMAC 3BILL RICHARDSON Governor



### July 28, 2003 Dear SirorMadam; 

## State of NewMexico 

## ENVIRONMENTDEPARTMENT Air Quality Bureau

2048 Galisteo St. Santa Fe, NM 87505 Phone (505) 827-1494

Fax (505) 827-1523 

### www.nmenv.state.nm.us RON CURRY Secretary DERRITH WATCHMAN-MOORE DeputySecretary



### The New Mexico EnvironmentDepartmentwill be proposing a new air quality regulationto applyto cotton ginning facilities. Ifadopted, the regulation would be called 

### 20.2.66NMAC - 

### Cotton Gins, also referredto as 'Part 2.66'. Attached to this letter are the draft Part 2.66 and a question-and-answer documentthat describes the regulation, the issues relevant to the regulation, and how andto whomyou mayprovide comments. The regulation was developed inresponse to amendments last yearto the Air Quality Control Act NMSA 1978. The 2003 amendments to Sections 74-2-7(C) and (0) 

### ofthe Act alterthe process, for issuing permits for cotton gins emitting 50 tons peryear or less ofapollutant subjectto ambient air 

### quality standards, byrevising the grounds on whichthe Departmentmay deny a permitfor such facilities. Specifically, the revised Act states thatthe Departmentmay not deny an application for a constructionpermitifthe applicantproposes "use ofthe best system of emissions reduction currently inuse by cotton gins in the United States, as specifiedby regulation ofthe environmental improvementboard." The statute also describes by example the minimumrequired effectiveness ofsuch a system. Part 2.66 includes the Environment Department's proposedregulation onthis issue. The EnvironmentDepartmentwill be appearing before the Environmental Improvement Board onAugust 12, 2004 to request a hearing for the Board's consideration ofPart 2.66. We anticipate thatthe hearing will be setfor October 5, 2004 in Las Cruces, New Mexico. I encourage you to submitcomments and questions aboutthe regulationto LanyWeaver atthe above address. She may also be reached at (505) 955-8090 or at lany weaver@nmenv.state.nm.us. For information regarding the hearing, please contactEnvironmental ImprovementBoard secretary Geraldine Chavez at (505) 827-2425. Thankyou for your interestinNew Mexico's air 

### quality.

raEly Air QualityBureau Chief

### New Mexico EnvironmentDepartment Questions andAnswers about Proposed 20.2.66 NMAC

- Cotton Gins July 28, 2004
What is 20.2.66NMAC

- Cotton Gins? Proposed 20.2.66 NMAC

- Cotton Gins, ifadopted bythe New Mexico Environmental ImprovementBoard, would be a new Part (regulation) in Title 20, Chapter 2 ofthe New Mexico Administrative Code (NMAC). In 

### this documentitis referred to as 'Part2.66'. Contact informationmay be found atthe end ofthis document. Copies ofthe proposedregulationmay be found onthe Department's web site at www.nmenv.state.nm.us/aqb/prop regs.html.
Whatdoes Part2.66do? Part 2.66 provides an alternative means for cotton gins to apply for air quality construction permits under Part 2.72. The owners and operators may still continue to apply underthe usual air quality permitprocess without invoking Part 2.66. Ifthey do invoke Part 2.66 intheirpermit application (see Section 201 ofPart2.66), they will notbe requiredto perform a dispersion modeling analysis ofthe air quality impacts oftheir emissions. However, in doing so they accept the requirements ofPart 2.66, which include control equipmentrequirements, opacity limitations, a fugitive dust managementplan, and a minimum setbackdistance from the ginto the property line. Why is the EnvironmentDepartmentProposingPart2.66? The regulation was developed inresponse to amendments lastyearto the Air Quality Control Act, NMSA, 1978 §§74-2-1 et seq. The 2003 amendments to Sections 74-2-7(C) and (0) 

### ofthe Air Quality Control Act (AQCA) altertheprocess for issuing permits for cottongins emitting 50 tons peryear orless ofa pollutant subjectto ambient air

### quality standards by altering the grounds on whichthe EnvironmentDepartmentmay deny a permitfor such facilities. Specifically, the revised AQCA states that the EnvironmentDepartmentmay not deny an application for a constructionpermitifthe applicantproposes "use ofthe best system of emissions reduction currently in use by cotton gins in the United States, as specified by regulation ofthe environmental improvement board." The statute also describes by example the minimumrequired effectiveness ofsuch a system. Part 2.66 includes the Environment Department's proposal onthis issue for the Environmental ImprovementBoard's consideration.
What is the ExactLanguage o/The 2003Air Quality ControlActAmendments? The introductory line ofSection 74-2-7(C) now reads: "Except as provided in Subsection 0 

### of this section, the department orthe local agency may deny any application for
...". The new Subsection 

### 0 is: "The departmentmay not deny an application for a constructionpermit for a cotton gin ifthe applicantproposes use ofthe best system ofemissions reduction currently inuse

1

### by cotton gins inthe United States, as specifiedby regulation ofthe environmental improvement board, and the cotton gin has apotential emissionrate, considering the use ofthe proposed emissions reduction system andthe proposed hours ofoperation, ofnotmore than fifty tons per year ofany regulated air contaminantfor whichthere is a national ambient air

### quality standard. The constructionpermit shall require thatthe applicantuse the proposed emissionreduction system and limitthe hours ofoperationto the hours specifiedin the application. Forpurposes of this subsection, 'best system ofemissions reduction' for cotton gins means a systemthat will result in emissions reduction equal to or greaterthanthat obtainedby the use ofcondenser screens, seventy-mesh screen or equivalent onlow-pressure exhausts and high-efficiency cyclone dust collectors onhigh-pressure exhausts."


### WhatAre The OtherStatutoryAndRegulatoryRequirements That Govern Part2.66? Section 74-2-5(B)(1) of the AQCA states that "The Environmental Improvement Board
... shall adopt.
.. regulations consistent with the 

### Air Quality Control Act to attain and maintain national ambient air 

### quality standards and prevent or abate air 

### pollution
... " In 

### addition, federal regulations governing revisions to the State Implementation Plan [the body ofstate regulations and policies that implements the federal Clean Air Act] require a demonstration that revisions, such as new regulations, include legally enforceable procedures adequate to provide for the maintenance of ambient air

### quality standards (see 40 CFR 51.112). The provisions of Part 2.66 would allow cotton gins to receive permits without performing air modeling and other requirements under Part 2.72 to demonstrate that they will meet ambient air 

### quality standards. As a result, the Environment Department believes that, in order to meet the requirement ofSection74-2-5(B)(1) ofthe 

### Air Quality Control Act and federal regulations, Part 2.66 must include provisions to assure that ambient air 

### quality standards will be met by each cotton gin that invokes Part 2.66. However, consensus with other interested parties has not been reached on this point; at least one commenterhas stated that, based solely on the amendments to the Air Quality Control Act, the regulation should be limited to describing proper gin emissions controls and management practices, and that the provisions proposed by the Environment Department to address ambient standards are inappropriate.


### WhatHas the EnvironmentDepartmentProposedAs The BestSystem Of Emissions Control? Part 2.66 requires the use ofcontrol equipment similarto those listed in Section 

### 0 of

### Air Quality Control Actfor exhaust air

### from the gin, requires effective managementpractices to control fugitive dust from the building and gin yard, limits the opacity ofemissions, and sets minimum setbackdistances between the gin andproperty line. Some areas inthe United States have more stringent equipment and fugitive dust control requirements for cotton gins. Forexample, the San JoaquinValley UnifiedAir Pollution Control Districtin central California, Maricopa County in Arizona, and the state ofNorth Carolinaeachhave orhave proposed the use ofcyclones on all emissions points; such equipmentcontrols are more stringentthan those required under Part 2.66. In 

### addition, North Carolina's requirements for control offugitive dust are more prescriptivethanthose in Part 2.66. However, the Environment Departmentbelieves thatthe

2

### proposed combination ofcontrol equipment, fugitive dustmanagementplan and setback distances strike the bestbalance between stringency and flexibility while continuing to maintain ambient air quality standards. 

### WhyNotRequire More StringentEquipment ControlsAnd/OrDrop The SetbackDistances? Underthe revised 

### Air Quality Control Act, all gins thatwill emitup to 50 tons peryear of particulate mattermay use this regulationto facilitate theirPart2.72 permit applicationprocess. As aresult, the EnvironmentDepartment's evaluation ofambient airquality impacts must assume thatthe worst-case scenario is that ofa gin emitting 50 tons peryear. The worst-case emissions, andthus the worst-case ambient airimpacts, will be the same regardless ofwhether the scenario is createdby a large gin with very efficientcontrol equipment, or a smallergin with less efficientcontrol equipment. In 

### response, the EnvironmentDepartment is proposing emissions controls typical ofgins across the country, and addressing ambient air quality impacts by including the minimum distance thatwouldbe needed between a 50 tonperyear gin and its property boundary in orderto meet air quality standards.


### How ShouldtheAmbientAir QualityImpacts be Evaluated/or Cotton Gins? The standardpractice for predicting the ambient airimpacts from emission ofairpollutants is by use ofcomputer-based dispersionmodeling conducted atthe time ofpermitissuance, based upon informationpresented in the permit application. The U. S. Environmental ProtectionAgency recommends (under40 CFR 51 Appendix W) 

### the use ofthe computermodel ISCST3 to determine such impacts. However, the ISCST3 model was developed and evaluated with data from tall powerplant stacks, whichhave significantly different stackparameters than cotton gins. Forexample, apowerplant stack emits ahigh volume ofvaried pollutants at a high temperature and high velocity. Cotton ginning operations emitparticulate matter from small diameter cyclone stacks that are 18-30 feet in height withrelatively low stackvelocity and temperatures only slightly above ambient. Dispersion modeling for cotton gin facilities inNew Mexico using ISCST3 predicts ambient air impacts that exceedthe 24-hourNational Ambient Air Quality Standard for PMIO 

### (particulate matterwith diameters of 10 microns orless). However, at leasttwo short-term studies have demonstratedthat ISCST3 over-predicts the 24-hourPMIO 

### concentrations from cotton gins. Appendix W of40 CFR 51 allows forthe use ofa robustmonitoring study in lieu ofa modeling analysis where there is no applicable model. The EnvironmentDepartment developed aplan for arobustmonitoring study for the 2003 ginning season at MesaFarmers Cotton Ginto determine concentrations ofPMIO associated with a large ginning facility. The plan was reviewed by the Environmental ProtectionAgency for adequacy to determine maximum concentrations from cotton gins for comparisonwith federal and state ambient air quality standards. The Environmental ProtectionAgency provided grant funding forthe project and MesaFarmers Cotton Gin andthe U.S. DepartmentofAgriculture Cotton Ginning Laboratory in Las Cruces provided supportto the study. The study was conducted atthe MesaFarmers Cotton Gin in Las

3

### Cruces, New Mexico, from September2003 throughJanuary 2004, which coveredthe entire cotton-ginning season. The setback distances in Part 2.66 are based uponthe results ofthis monitoring study. The evaluationofthe datahas included extrapolationby use ofdispersionmodeling.
How Can PeopleAndOrganizationsProvide CommentsRegardingPart2.66? The EnvironmentDepartmentwill be appearing before the New Mexico Environmental ImprovementBoard on August 12,2004to request ahearing for Part 2.66. We anticipate that the hearing will be setfor October 5, 2004 in Las Cruces, New Mexico. Priorto the hearing, the public may submit comments and questions to Lany Weaver atthe above address. She may also be reached at (505) 955-8090 or atlany weaver@nmenv.state.nm.us. In 

### addition, all interested persons will be given areasonable opportunity atthe hearing to submit relevant evidence, data, views, and arguments, orally orin writing, to introduce exhibits, and to examine witnesses. For informationregarding the hearing, please contacthe Environmental Improvement Board secretary Geraldine Chavez at (505) 827-2425. In 

### the eventthatthe Board adopts Part 2.66, the EnvironmentDepartmentwill submitthe regulation, as well as the amendments to the Air Quality Control Act adopted lastyear, to the Environmental ProtectionAgency for approval. They will then evaluate the submittal for adequacy to protect air 

### quality standards, as well as the appropriateness ofusing monitoring (ratherthanmodeling) results to evaluate such adequacy. Atthattime, the Environmental Protection Agency will beproviding the public an additional opportunity for comment. For more informationregarding theirpublic commentprocess, please contact TomDiggs ofthe Environmental ProtectionAgency's Region 6 in Dallas, at (214) 665-7214.

4·Doug Meiklejohn NM Environmental Law Center 1405 Luisa St, #5 Santa Fe NM 87505 Lynda Taylor Southwest Research & Information Ctr. P.O. Box 4524 Albuquerque, NM 87106 John Bartlit NM Citizens for Clean Air 

### & Water 113 Monte Rey North Los Alamos NM 87544 Bill Fulginiti NM Municipal League P.O. Box 846 Santa Fe NM 87504 Lynn Sferrazza Western Environmental Law Ctr. P.O. Box 1507 Taos NM 87571
Lorie Ellis 848 W. Hadley Las Cruces NM 88005

Four Points Gin Union Ave. 

### & SR 28 Mesilla NM 88046
Artesia Alfalfa Growers Assn. Mill Gin P.O. Box 930 Artesia NM 88211-0930
Conchas Gin, Inc. P.O. Box 724 Tucumcari NM 88401 Grove Burnett Environmental Law Center P.O. Box 1507 Taos, NM 87571 Conservation Chair Sierra Club 621 Old Santa Fe Trail Santa Fe, NM 87501 Edith Pierpoint League of Women Voters 2403 San Mateo Blvd, NE, #W-16C Albuquerque NM 87110
Chris Mechels Rt. 4, Box 2-B Santa Fe NM 87501
Jill Smith /' ,.: <.i.- j Conservation Voters Alliance P.O. Box 40497 Albuquerque NM 87196 Alvin Valeriano SJVUAPCD 1990 

### E. Gettysburg Ave. Fresno CA 93726 Alberto Pando Mesa Farmers Cooperative, Inc. P.O. Box 646 Mesquite NM 88048
Cotton Growers, Inc. P.O. Box 278 Loving NM 88256 Quang Nguyen EPA Region 6 (6PD-L) 1445 Ross Ave., Ste. 1200 Dallas TX 75202-2733 Gregory Green Conservation Voters Alliance 619 Galisteo Santa Fe, NM 87501 Jeanne Bassett NM Public Interest Research Group P.O. Box 40173 Albuquerque, NM 87106 Hugh Church American Lung Association 10009 Barrinson, NE Albuquerque NM 87111-5889 Randy Moorman NMPIRG P.O. Box 40173 Albuquerque NM 87196 John Horning Forest Guardians 1411 Second St. Santa Fe NM 87505
B.E. Harvey Gin Co. P.O. Box 1057 Las Cruces NM 88004

Farmer's Co-op Assn. P.O. Drawer R Hagerman NM 88232

Luna Cotton Co-op P.O. Box 429 Deming NM 88030
Tom Diggs EPA Region 6 (6PD-L) 1445 Ross Ave., Ste. 1200 Dallas TX 75202-2733

### LanyWeaver From: Sent: To:
Cc: Subject: Lany Weaver [lanLweaver@nmenv.state.nm.us] Wednesday, July 28, 2004 5:43 PM Tim Booker; Sandra Ely; Richard Goodyear; phil wakelyn; Mary Uhl; Louis Rose; Keith Zimmermann; ed kelley; Ed Hughs; Derek Whitelock; Carlos Armijo; Calvin Parnell; Bryan Shaw; Bill Norman; Ashley Schannauer Rita Trujillo; Jim Norton; Keith Zimmermann Cotton mailing re 2.66
Hello. Please find attached a cover letter, and a summary of the cotton gin proposal in question and answer format. These documents are being sent to all gins, EPA, and other interested parties as part of an informal comment period. In our request for an October hearing, we indicated that a legal public notice period of thirty days for this hearing would be appropriate because potentially interested parties are being directly notified of the draft regulation and related issues, creating an effective public notice period of more than 60 days. This, along with a copy of the draft regulation, is that notification. I look forward to your feedback on the summary document, including the ways that the presentation of this information can be improved. This is the sort of information, along with the monitoring results, we anticipate will be presented before the Board. Thank you.

1

### UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 1445 ROSS AVENUE, SUITE 1200 DALLAS, TX 75202-2733 

# OCT 31 

# 2003
Ms. SandraEly Chief, Air Quality Bureau New Mexico EnvironmentDepartment 2048 Galisteo St. SantaFe, NM 87501 Dear Ms. Ely; This letter is to provide information regarding the New Mexico State Implementation Plan ("SIP") requirements thatresult from the passage ofNew Mexico House Bill 192. HB 192 amended the state Air Quality Control Actto provide permitting standards for cotton gins. As amended, the statute directs the Environmental ImprovementBoard to adopt a regulation specifying construction permitrequirements for cotton gins under 20.2.72

- Construction Permits ("Part 72"). As you are aware, Part 72 is part ofNew Mexico's SIP, and amendments to it (such as including adoption ofanew regulation that indirectly alters the provisions ofPart 72) require U. 

### S. Environmental Protection Agency ("USEPA") review and approval as a SIP revisionunder Section 110 ofthe Clean AirAct.. The requirements for SIP submittals, including SIP revisions, are set out in 40 CFR 51. The Federal regulations require that the state "must demonstrate that the measures, rules, and regulations contained in [the SIP] are adequate to provide for the timely attainment and maintenance ofthe national standardthat itimplements." The primarymeans by which the New Mexico SIP assures the maintenance ofall national ambient air quality standards is through pre-construction review under Part 72, Construction Permits, ofthe ambient impacts ofnew and modifying sources ofair contaminants. Any new or amended regulation ("control strategies") adopted for cotton gins in New Mexico under the provisions ofHB 192 mustbe evaluatedby USEPA underthe provisions of40 CFR 51, which states that "the adequacy ofa control strategy [to protect standards] shall be demonstratedby means ofapplicable airquality models, databases, and otherrequirements
...". You have informed EPA thatNew Mexico is considering the use ofmonitoring data ratherthan dispersion modeling to demonstrate adequacy ofthe above referenced SIP revision because ofconcerns about whetherthe recommended dispersion modeling fairly represents the ambient impacts ofthese sources. As you are aware, U. S. EPA approval mustbe obtained for any modification or substitution to air quality modeling in a SIP submittal.

Internet Address (URL)
- http://www.epa.gov/earth1r6/ Recycled/Recyclable
- Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer)

### Although the EPA has reviewedthe monitoring studyplanprovidedby Mary Uhl ofyour staffand believe it is a creditable scientific study from which to evaluate control strategies for cotton gins in New Mexico to ensure ambient standards are protected, we are required to take public notice and commentrulemaking before we can approve the revised regulation using this study. When you submitthe revisedregulation, this study shouldbe sent as part ofthe submitted SIP revision. The study appears to be a conservative tool since it is being conducted at locations experiencing thehighestPMlO levels in the area. Also, this study is being conducted over the full ginning season of October through December. We appreciate the opportunity to workwith you as you implement HB 192 and conduct this special study. If

### you have any questions, please feel free to contactme or have your staffwork with Tom Diggs or Quang Nguyen in the AirPlanning Section at 214-665-3102 or with Guy Donaldson or Daron Page in the AirPermitting Section at 214-665-7250. Sincerely,

Donna M. Ascenzi Acting Associate Director (6PD)

### Ms. Gay Dillingham, Chair Environmental Improvement Board 1190 S1. Francis Drive SantaFe, New Mexico 87502 State of New Mexico ENVIRONMENTDEPARTMENT Office of the Secretary HaroldRunnels Building 1190St. Francis Drive, P.O. Box26110

Santa Fe, New Mexico 87502-6110 Telephone: (50S) 827-2855

... RON CURRY 

### Fax: (50S) 827-2836 

### :1 1819 20

_ SECRETARY fo

### '\~:/\**<1~;:** 

# -.;; j

..... DERRITH WATCHMAN-MOORE 

### t:? DEPUTYSECRETARY 

# JUL 

# 2004

.... 0

## ~iVecl**.J.~-** 

## '" 

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### July 19, 2004 BILL RICHARDSON GOVERNOR



### Re: Request for Public Hearing to Consider Proposed State ImplementationPlan Revision DearMs. Dillingham: The New Mexico Environment Department (NMED) is requesting a hearing for consideration ofproposed regulation 20.2.66 NMAC

- Cotton Gins. The proposed new regulation, along with recent revisions to the New Mexico Air Quality Control Act, constitutes a revision to the air quality State Implementation Plan. The Departmentrequests that this hearing be scheduled for the October meeting ofthe Board. We also request that the hearing be held in the southern portion of the state, nearer to where New Mexico's cotton gins are located. We are anticipating that this hearing will last approximately4 hours. A copy ofthe proposed regulation is attached to this letter. This regulation has been developed in response to an amendment to the state's Air Quality Control Act. During the 2003 legislative session, House Bill 192 was approved and signed into law. This statutory amendment directs the Board to specify, by regulation, the best system ofemissions reduction currently in use by cotton gins. Once established, NMED may not deny an application for an air quality construction permit for a cotton gin ifthe applicant proposes use ofsuch system of emissions reduction and meets otherrequirements ofthis proposed regulation. This proposal was developed in consultation with representatives of the National Cotton Council of America, the U.S. Department of Agriculture Southwestern Cotton Ginning Research Laboratory, and Mesa Farmers Cooperative. However, the proposed regulation does not represent a consensus between these parties and NMED. At contention is whether consideration should be given in this regulation to the ambient air impacts ofemissions from cotton gins. As drafted, Part 66 assures that the ambient air impacts ofcotton gins permitted underthis Part will not exceed National AmbientAir Quality Standards.

### Ms. Gay Dillingham July 19,2004 Page 2

We are requesting that the legal public noticeperiod for this hearing be thirty days. The legal public notice period would begin at the earliest on August 31, 2004, when the hearing notice is published in the New Mexico Register. However, the regulated communityhas been involved in regulation development, and otherpotentially interested parties arebeing directlynotified of the draft regulation and related issues, creating an effective public notice period ofmore than 60 days. As aresult, we believe that a shorterlegal public notice period is appropriate. Under the Air Quality Control Act, the Board has the discretion to allow a 30-day commentperiod. Thank you for your consideration ofthis request. Sincerely,

Enclosure
cc: Clifford Stroud, Vice Chair, EIB Gregory Green, Secretary, EIB Gwen Wardwell, Member, EIB Harold Tso, Member, EIB Dolores Herrera, Member, EIB Ken Marsh, Member, EIB Mary Smith, Attorney, EIB Sandra Ely, Bureau Chief, Air QualityBureau

# LASCRUC

256 W. Las Cruces Ave. P.O. Box 1749 Las Cruces. NM. 88005 (505) 541-5400

Date: 08/31/04

Publication Class LAS CRUCES 0152

- Legal Notices LAS CRUCES 0152

- Legal Notices NM AIR QUALITY 2048 GALISTO SANTA FE, NM 87501 (505) 827-2425

Ad# 353631 353631

TEXT: Start 09/0112004 09/0112004 Stop 09/01/2004 09/0112004 Times 1 1 Total Cost: $112.68

Payment: =====$0=.0=0 Balance Due: $112.68


### THENEWMEXICO ENVIRONMENTALIMPROVEMENTBOARDNOTICE OF PUBLIC H



# .. C

## PROOF OF PUBLICATION

S5. 

### STATE OFNEW MEXICO

Pul>.No.32957 ' Publish: September 1, 2004 If

..you are;'an**ind'rvidu~i** with a disability and you require assiS/ance or' an auxiliary aid,

- e.g. sign Identify tlie(party of lan!!uage**~nterpreter,** to. whom the witnesses' .will**partr~ale.** m any aspect testify;' • of
.. thrsprocess, please

. ., contact Jud)r Bentley by,

. .; . :' September 24, 2004 aI Identify each' technical the New Mexico Environwitness the party intends inent Department, 1190 to present and state the SF'
..... qualificalions of thai wit- t., ranclS '",rive, P.O. Box 26110, Santa Fe, ness, inclUding**~.** descrip- New· Mexico 87.502, tion of their educalional (50,5) 827;-9872 (TOO or "ndworkbackground; TOY users please acceSs her nuinber' via Ihe New Mexico Relay Network. Albuquerque TOO users: (505)" 275-7333; outside of Albuquerque: 1·800. 659-1779.) ,';'
..
. .. ssf Ms. Gay Dillingham, Chair**Summ~rize** ' or include ' a cOpy of the anct testimony of each technical witness and stale the anticipaled duration. of the testimony; , Include 'the'
.text of any recommend'ed modifications 10 the proposed regulalory change; and Chavez (505) 827-2425 for a copy of the proposed agenda, which will be available after September ,24, 2004, at the Environment Improvement Board's office, Room N-2153, 1190 St. Francis Drive, P.O. Box 26110, Santa Fe, NewMexico 87502.

The',
.proposed 'regulation and, statutory amendment can ,be' found. an the Depar!l)1ent's web· site at nmenv.state.nm.us/oqb/prop_regs.htm I. Yoll inay also cOntact Geraldine MadridChavez r505) 827-2425 for' a copy of, the proposed regulation and List and describe, or aiconcerning questions tach, all exhibits antici· aboutthis hearing., paled to be offered by thai person aI the hearThe hearing will be con- ing.·
. ducted in accordance with. the Environmental The deadline for the no- Improvement Board's tice of intent to present Rulemaking Procedures, technical testimony' is 20 NMAC 'J.1;'!jhe Envi- September ,24,
. 2004. ronmental**briprovem~nl** Notices 'oLintent must be Act,' Seclio'fl" 74-1-9 filed inthil office of the The Board' will hold a NMSA' 1978. '. 'and .other ,Board and, 'shoUld stale

bl' h • the
. date and title of the pu It earing to consid- 'specific 'stalutory proce- h d er. proposed 20.2.66 duresthalmayapply •.. "., earing, an, the case NMAC

_ Colton ·Gins. number. ·,Arrt person, who . ' .
. wishes to. submit ci'non- This regulalion has been' All 'interested persons technicaF written state- developed in response. to will b. given. a, reasona- menl in liell of oral**t~**

.an .amendment'. to the ble opportunity aI the mony may do so aI or state's Air Qualify Con- hearing to submit rele-.**befo~** Ihe. hearing withtrol Act.' This statutory vant evidence,**~data"** out a priorflli"g. ': amendment directs the views, and, arguments; , , .,.'
.**;~** " Board to specify,' by orally or in Writing, ta in- The,'Board:**~~;/ r~con­**  regulalion, the beSt sY'- traduce exhibits, and to vene a meellng' aI the tem of emissions r..duc- e xaminewit

### n e 55es.. end of the hearing to tion currently in use bji Persons desiring to pres- take action' on the pro:- colton gins. Once .jlstab-
.ent technical testimony posol. ' lished, 'the Environment must file with the ,aoard

. Department may, not a written naliee of intent deny an appficalion 'for ta do so: The notiCe' of an air. 'l,l'ality conStrue- intentshall: , tion permit' for a colton gin' if the applicant P.Jl>" poses' use of such system of emissions reduction and ,meets other'requirements . of this proposed regulation. The. propOsed new reguJati!>n, along with the revisions to the New Mexi';" Air Qualify Control Act,', constitutes a revisi",n to the. air quality State' Implementation Plan. ' . The' New Mexico Environmental Improvement Board will hOld a pubfic hearing. on October 5, 

### County ofDona Ana 2004 beginning at 9:30 a.m. aI the Dona Ana 

# 1

County Health Services 

### S b 'b d d sworn before me Center, ROom 1101, 1170



### U scrl e an N. Solano, Las Cruces, New MexiCo. Contact 

# IS 

# d.y,,&{tmiuA**~,,";",** 

# M.'d'. 

# ;;;d Signed Deponent further states this newspaper is duly qualified to publish legal notice or advertisements within the meaning of Sec. Chapter 167, Laws of 1937.

THENEWMEXICO ENVIRONMENTAL IMPROVEMENT BOARD

NOnCE OF PUBLIC

. HEARING·AIR QUALITY REGUALnONS • 

### Wayne Barnard, being duly sworn, deposes and says that he is the Classified Director of the Las Cruces Sun-News, a newspaper published daily in the county ofDona Ana, State of Ne;r**~xico;** 

### that the notice**\3~** 

### per clipping attached was published once a week/day in regular and entire issue of said newspaper and not in any supplement thereof for 

# _1__ consecutive week(s)/day(s), the first publication

# ~hl;,2**iru~td ~¥t**  PUbli!i:Mwas

# ~J11)iJW // 

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# (J

# ~-L L'o"'

# d2.mU)
Notary Public in and for Dona Ana County, New Mexico 

# q-/L/--CJS My Term Expires

### STATE OF NEW MEXICO County ofBernalillo SS

to bef re me, a Notary Public, in and for the County of**B,~laH'no** and State ofNew Mexico this day of 

# ?r=,,, 'j" of

### 20J!l!f

PRICE4 

# G:, 

# 8,

_ Statement to come at end ofmonth
. Bill Tafoya, being duly sworn, declares and says that he is Classified Advertising Manager of The Albuquerque Journal, and that this newspaper is duly qUalified to publish legal notices or advertisements within the meaning of Section 3, Chapter 167, Session Laws of 1937, and that payment therefore has been made of assessed as court cost; that the notice, copy of which is hereto attached, was published in said in the regular daily edition, for times, the first ation being on the day of quent consecutive publications on

_**-----.l.--""'r----+,f-~d_-----** _'

### 20_.

ACCOUNT NUMBER 

# c, 3=Dq8=0 CLA-22-A (R-1/93)

Summarize or include a copy of the direct testimony 01 each technical wRness and state the**antic~** patedduration ofthe.testimony; Include'the text oi any recom- mended modffications to the pro- posed regUlatory change; and List and describe, or attach, aU exhibRs anticipated to, be offered bythat person atthe hearing. The deadline lor the notice of Intentto present technical testimony is September24,2004. Notices 01 intenl must be filed in the office 01 the Board and shouid state the, date and title of the hearing, and the case·number. Anyperson who wishes to submft a non-technical written statement in lieu 01 oral testlinony may do so at or belore 1heheanng withoutapriorfiling.**T~eB6ar~-mayreciiiiv'ene** meeting at the end 01 the hearing to lake action on the proposal..

. Ii you are an individual with adis, aoillty and you require assistance or an Iluxihary aid, e.g.**~ign la~,**  'guage Interpreter, to partiCIpate In any aspect of this process, please contact Judy Bentley by Septem- ber 24, 2004 'althe New Mexico Environment Department, 1190 St. ,Francis Drive, P.O. Box 26110, Santa Fe, .New Mexico 87502, (505) 827-9872 (TDD or TOY**u~­** ers please access her number Via the New Mexico Relay Network. Albuquerque TDD users: (505) 275-7333; outside 01 Albuquerque: 1-800-659-1779.)**s~** Ms. Gay Dillingham, Chair Journal: August 1S, 2004 ' . 

### THE'NEWiiEitlCD
. ,ENVIRONMENTAl;.':" ,**IMPROYEN.!~_BJ;lA~O'~** NoncE

### o;~~~J~'H~~RING~; AIR QUAun' REGUAt.nONS .' The

### Ne~**M~~;;g'drl\ll~itril~~I'** Improvement Board will hold a publie-hearing**o~** October5, 2004 beginningat 9:30 a.m, atthe Dona , Ana County'Health Services Cen- i ter, Roonr1101,.1.17q N. Solano, I Las CnuceS; NewMexICO. Contael ! Geraldine Madrid-Chavez (505)1 827-2425'for.a copy,pl the prO' posed agen9a,YiliiC/jivlll be**aval~,** able after Seplemblir24,,2004, at. the Environment. ImprDvement , Board's 'office;'''Room·;,N,:gJ53,., 1190 Sl,Francis Drive, P.O. Box 26110, Santa Fe, New Mexico 87502. '

..:..**.,~** The Boanl Will hold a'pubiic hear-

. ing to cohsider proposed 20.2.66 NMAC
- Colton Gins. ,This regula- tion has been developed in re- sponse to an amendment to the state's AirQuality COntrol Act. This statutory amendment ,directs the Board tospecifY, by reguiation, the best system 01 emissions reduction .eunrentiV in use by.cotton gins. OnceestabflShed, the Environment Department may.not deny an ap- plication lor an:air quality con: struction permR lor acotlon gin ff the applicantproposes use01 such system 01 emisSIOns reduction and meets other requirements of this proposed regulation. The proposec new regulallon,.along with the.re!-

.visions to the New Mexico-'Air Quality Control Act. constitutes a revision to the airquality State Implementation Plan. : The proposed regulation and statutory amendmenfcan be lound on the Department's web-site at nmen v. statIi. nm. usl aqbI prop regs.htmL You may also contact Geraldine·Madrid-Ghavez (505) 827-2425 lor a copy of the proposed regulation and concern- Ing questions about !hishearing. The hearing will be conducted in a.."Cordance with the Environmental, Improvement Board's Rulemaking Procedures, 20 NMAC .1.1, the Environmental Improvement Act, Se=tion 74-1-9 NMSA 1978, and otherspecific statutory**proc~dures** that may apply.

. . . I All interested persons win be given : a reasonable opportunity af**t~;** hearing to submit relevant eVidence, data, views, and argu- , ments, orally or in writing, to intro- : duce exhibRs; and to examine wtt- nesses. Persons desiring to present technical testimony must file wRh the Board awritlennotice of intentto do so. The notice of intent shalt ' Identify the party of whom the

### wn· nesses will testify;,

. . Idenllfy each**tec~nical** wRness the party Intends to present and state the qualilications of,that wRness, including adescription 01 their educational and \york background;

# USDA 

# iiiiii
United States Department of Agriculture

Research, Education and Economics Agricultural Research Service 

### September 24, 2004 Ms. Gay Dillingham, Chair Environmentallmprovement Board Room N-2153 1190 St. Francis Drive P.O. Box 26110 Santa Fe, NM 87502 Re: Proposed Regulation 20.2.66 NMAC

- Cotton Gins Dear Ms. Dillingham: I am writing to notifyyou ofmy intent to testify at the October 5, 2004 publichearing regarding the consideration oftheproposed regulation referenced above. I will be testifying as a technical experton cotton giooing in support ofTheNew Mexico Cotton Ginners Association. Ihavebeen working as a ginning technical resource for both The New Mexico Cotton Ginners Association and theNew Mexico Environmental Department during the development ofthe proposed regulation. A summary ofmy intended technical testimonyis attached for your information. My educational and work background is as follows: Education 1. 1967-72 New Mexico State University; major, Agricultural Engineering; B.S. 1972 2. 1972-73 Ohio StateUniversity; major, Agricultural Engineering; M.S. 1973 Work Back!:rround 1. 1973-75 Design and test engineer for Ford Tractor Co., Dearborn, MI 2. 1976-81 Agricultural Engineer, USDA, ARS, Southwestern Cotton Ginning Research Laboratory, Mesilla Park, NM 3. 1981-presentResearch Leader and Agricultural Engineer, USDA, ARS, Southwestern Cotton Ginning Research Laboratory, MesillaPark, NM

.- Southem Plains Area Southwestem Cotton Ginning Research Laboratory. 300 East College Drive. P.O. Box 578 Mesilla Park, NM 88047 Voice: (505) 526-6381 • FAX: (505) 525-.1076 • E-mail: swcgrl@nmsu.edu

# USDA 

# iiiiii'
United States Department of Agriculture

Research, Education and Economics Agricultural Research Service


### 4. Registered Professional Engineerin the State ofNew Mexico, Registration Number 12708 For the last 28 years I havebeen actively engaged in ginningresearch with the USDA, ARS and have authored or co-authored over 160 technical publications. These publications cover all areas ofcotton ginning includingparticulate emissions from cotton gin plants. My intent at the upcoming hearing is to serve as atechnical resource for the New Mexico Cotton Ginners Association and to let the attached summary serve as my initial comments. 1would like to request the Board's permission to be able to make additional briefcomments as mightberequired during the course ofthe hearing. Iwould also hope to serve as a technical resource related to cotton ginning for the NMED and the EIB as might berequired during the discussion. Sincerely,

S. E. Hughs
attachment

Southern Plains Area Southwestern Cotton Ginning Research Laboratory. 300 East College Drive. P.O. Box 578 Mesilla Park, NM 88047 Voice: (505) 526-6381 • FAX: (505) 525-1076. E-mail: swcgrl@nmsu.edu 

# . ;t.,'2,.'52 627<0'**r.~7J** 

## <,9 v 

### I\if.....**O~**

.... :.> 

### Summary ofTestimony

## I'~**(~ ~.l**  \ 0)

## ~'t**ce\~** By S. E. Hughs

## \~**_~~~16** 

# ZI \r

. \1"'''' r.. /**\~ ~'l** 



### \"?n**~/** 

### Introduction,«'1;;{ '':L

## ~J 

## __**~~** Cotton, is both afiber and food crop. It 

### is grown in 17 states that span the southern tier ofthe United States from the Atlantic to the Pacific coast. Total annual US cotton production varies, depending mainly on weather conditions and weather, but generally is about 17 to 20 million 480 pound bales. Ofthis total production, 300 to 600 thousand bales are extra-long-staple Pima cotton and the remainderis shorter staple upland cotton. Pima is grown in Texas, New Mexico, Arizona and California whileupland cotton is grown in all 17 cottonproducing states. In New Mexico in 2001, about 134,000 bales of cotton and 50,000 tons ofcottonseed wereproduced by about 400 farms and about 58,000bales ofupland cotton and about 13,000 bales ofPima cotton were ginned bythe seven gins. The rest ofthe cotton was ginned out ofstate, primarily in West Texas. Several new gins have recentlybeen built in West Texas close tothe eastern New Mexico boarder due to regulatoryreasons. In New Mexico, cotton accounts for about 1000jobs (producers, ginners, merchants, warehousemen, and textile processors) and' about $40 million in revenue. (Cotton Ginnings, 2002 Summary, 

### USDA, National Agricultural Statistics Service, May, 2003 and World of Cotton, 

### National Cotton Council website, http://v..rww.cotton.org/econ/world/detail.cfm,) Cotton is aperishable commodity thathas value only after the seed-cotton (locks containing seed with the fiber (lint) attached) is separated into lint and seed atthe cotton gin. The cotton gin is considered agriculture (SIC Code 0724; NAISC Code 115111) and part ofthe harvesting system. In the ginning process, the fiber is baled into individual bales weighing approximately 480 pounds and the seed is bulked for storage. The fiber goes to atextilemill for processing into yam and fabric. The seedis either fed directly as whole seed to dairy cattle or crushed at a cottonseed oil mill to produce cottonseed oil for human consumption and cottonseedmeal for animal feed. The gin stand (machineused to separate fiber from the seed) is different for ginning Pima and upland cottons, but otherwise the gin plants which process the two types ofcotton are very similar. Commercial cotton gins use a significant amount ofair during cotton processing The air is used to transport, dry, or clean the cotton depending on the particularprocessing step. A typical gin plant mayuse 50 to 60% ofits total powerusage for moving air. Each of these air streams becomes contaminated with varying amounts ofparticulate matter (PM) during the process. This PM, which consists primarily ofsoil particles and plant material, is about 75% total suspended particulate (TSP; very large PM), about23% PMlO (pMcoarse) and <2% PM2.5 (PMfine). It 

### mustberemoved from the air stream before the used process air is exhausted to the atmosphere. Abatement devices used to control PM emissions from cotton ginning operations include cyclones, fine screen coverings, and perforated metal drums. Typically cyclones are used

### on high pressure air exhausts thathandle seed cotton and fine screens orperforatedmetal drums are used on low pressure air systems thathandle lint. Two types ofcyclones that are used are 2D2D and 1D3D cyclones. Both thebody and the come ofa 2D2D cyclone are twice as long as the cyclone diameter. Thebody ofa 1D3D cyclone is the same length as the diameter, and the cone length is threetimes the diameter. All ofthe 900+ operating cotton gins in the United States use controls for particulatethat are similar to those described above and this is considered "best system ofemissions reduction". It 

### is importantto note thatthe emissions from cotton gin exhausts are generally not dependent on the age ofthe gin or its size. Theprimary differencebetween anewly constructed cotton ginplant and a 20 year old plant is the size ofthe equipment and its expected material processing rate (throughput) in bales perhour. The fundamental design ofthe equipment and how it operates in each case is the same. Likewise, the design ofthe PM control system is basically the same in both cases. In ginning systems, the amount ofairrequired to behandled is directlyproportional to the gin plant's throughput rate. The total amount ofairused and the PM emitted perhour will increase as the gin plant gets larger, but the amount ofair and PM perbale stays basically the same, regardless ofthe size orrelative age ofthe cotton gin plant. Gin Permits Cotton gins in New Mexico are not amajor source ofparticulate (emits> 100tpyofPM) or exceed PSD levels (250tpyPM) under NSR. Since gins are alow level emitting source, EPA models tend to overpredictby about 4X, which is why the legislation and this new rule are necessary. There are two basic questions regarding the permitting·ofcotton gin plants: 1) are they a major source (i.e., aTitle V source) and 2) do their emissions lead to the integrity ofthe area notbeing maintained (cause the region to be non-attainment) (i.e., in New Mexico do theirPM emissions violate the National Ambient Air Quality Standards (NAAQS) at theirproperty line? AreNewMexico cotton gins Title Vmajorsources?: 

### The EPA issued a guidance document on April 14, 1998, entitled "Potential to Emit Guidance for Specific Source Categories". In this document, the EPA calculated "very conservative (worst than the typical 'worst-case')" [see guideline "Technical Support Document for Potential to Emit Guidance Memo. Documentation ofEmission Ca]culations"] cutoffs that States can use to establish genericprohibitory rules orgeneral permits for cotton gins. Sources could use these cutoffs as enforceable limitations on their operations, thereby demonstrating minor source status. Table 6 ofthis Federal EPA guidance document shows that agin with screened drums or cages on battery condensers and 

### lint cleaners and cyclones on all other exhausts could gin up to 72,000 bales in a ginning season, and a gin with cyclones on all exhausts could gin 90,000 bales and still be considered aminor source that does not require a Title V federally enforceable permit. 

# · "

### The official cotton production and giIUlingrecords show that for the previous five crop years up to 2003, New Mexico produced on average 108,670 runningbales ofcotton and ginned 73,880 running bales. (Cotton Ginnings, 2002 Summary, USDA, National Agricultural Statistics Service, May, 2003 and Cotton Ginnings, 2001 Summmy, USDA, National Agricultural Statistics Service, May, 2002) The discrepancybenveen production and ginning is accounted for by theharvested seed-cotton going out ofstate, primarily to Texas, to be ginned. In recent years, new cotton gin capacity has been built exclusively in West Texas, as opposed to Eastern New Mexico. Onereason for this trend has been the regulatory uncertainty in New Mexico. There are currently six operating gin plants in New Mexico whose annual ginning volumes range from about 2,000 to 30,000 running bales/year depending on location within the State. It is clear thatnone of the currently operatingNew Mexico gins come close to majorsource status, according to FederalEPA guidance. Indeed, one gin plant could gin all ofNew Mexico's current ginnings and still be significantlyunder major source status for particulate matter. Given the status ofagriculture in New Mexico, it is unlikely that any further new gins will be built or existing ones significantly modified unless some ofthe currently existing cotton gins consolidate even further. 

### In the latter case, the total number ofoperating gin plants in New Mexico will be reduced even further. Do gin PMemissions v'om a gin using the controls that are in the FederalEPA guidance violate the NationalAmbientAir Oualitv Standards (NMQS) 

### at theirproperty line?: Actual measurement ofparticulate matter at the gin property line should be thebest indicator ofpublic exposure to gin particulate matter and whether a gin will contributeto the integrity ofthe area not being maintained. Boundary line PM measurements at aNew Mexico gin. To help assess the risk to the public from being exposed to PMl'O 

### concentrations exceeding the Federal limit of 150 tLg!m3 

### [Summary ofPM-l0 & 

### TSP Concentration Measurements at aNew Mexico Cotton Gin, by B. W. Shaw, and B. Fritz] on-sitemeasurements were conducted at aNew Mexico cotton gin during the 1998 ginning season. Pairs ofhigh volume (for determination oftotal suspended particulate, CTSP)) and PM-l0 samplers were located on all four edges ofthe gin property and were operated for atotal ofapproximately 8 days. Except for one set offilters that were run for 24 hours, all filters were changed every 8 hours to facilitate designation ofupwind and downwind sampling points in spite ofwind change directions. Two on she weather stations were utilized to measure meteorological data with measurements taken every two minutes. Wind direction during the test came from all compass points with speeds varying from calm to greater than 10.8 m/s. These higher wind speeds resulted in sand particles being deposited on one ormore ofthe high volume fihers during 5 ofthe 8hourtest runs. The 8hour filter changes allowed for accurate identification ofupwind and downwind samplerpositions when correlated with on site meteorological data taken during each test run. Otherweather factors included variation from warm and sunny to windy and overcast with rain showers during the days oftesting.

### Results of1998 boundary line PM measurement. Themaximum upwind and downwind total 24 hour concentrations ofPM-10 atthe gin test siteboundai-ylinewere 55.0 and 60.1 ).1g/dsm3
, 

### respectively. The averageupwind and downwind 24hour concentrations. oftotal PM-l0 were 19.5 and 22.1 ).1g/dsm ,respectively at theboundary line. These data indicate that,for thisparticularginplantand over the variable weather conditions experienced, the PM-I

# o boundary line concentrations werefar below the Federal limit. 

### The details ofevery gin plant and site location within the State ofNew Mexico are different. The monitored commercial gin plant's emission control equipment

## was designed and operated according to good industrypractice and werethoseused in the Federal EPA guidance for cotton gins. There is no reason to think that otherNew Mexico gin plants as well as the other 900+ gins in the USA, which are similarly equipped, would not have similarresults in PM-l0 concentration at theboundary line.

, 

### TheNMED conducted aboundary line sampling study during the 2003 ginning season with results similar to the earlier study conducted in 1998. Theseresults will be presented by the NMED to the EIB at the appointed hearing time. A second, though indirect indication, ofgin compliance with NAAQS is the status of regulations in all ofthe other 16 cotton growing states. Other state or air control district regulations are not uniform but there are many similarities across the country. For example, both the State ofOklahoma and the Maricopa County ArizonaAir Control District have permitting regulations recognizing equipmentbasedmethods ofmeeting NAAQS without resorting to othermeans ofdemonstrating compliance with Federal PM10 regulation. In crop year 2001, cottonproductionin Oklahoma, an attainment area for PM-10, was 197,000 bales. Cottonproduction for Maricopa County, Arizona, a severe non-attainment area for PM-10, in crop year 2001 was over 200,000 bales. Other examples could be given for other cotton producing states. In addition it shouldbe noted that all ofthe" other 16 states have EPA approved SIP's for PM-10. Thebasic design of the gin plants and theirpollution abatement systems in all these other states is basically the same as the design ofall six currently operating gin plants located inNew Mexico. Summary In summary, the NMED, TheNew Mexico Cotton Ginners Association and the New Mexico cotton industryhave attempted to develop aregulation (followingNew Mexico HB 192) foi- the cotton ginning industryin New Mexico that will allow gins to operate in New Mexico, using regulatoryrequirements that are similarto thoseused by the ginning industry in the rest ofthe USA. Site specific monitoring conducted during two different ginning seasons at a cotton gin with abatement equipment specified in the Federal EPA guidance for cotton gins, and with pollution abatement systems basicallythe same as the other900+ cotton gins in the USA that are permitted in the other 16 states where cottonis grown, shows that the integrity ofthe area is being maintained. This affords the state of New Mexico areliable way to demonstrate that anew cotton gin is not going to decrease the air quality ofthe area, when controlled as HB 192 stipulates. New Mexico will be using amethod to permit the construction ofa cotton gin that is similar to thatused by whatthe other 16 states where cotton is ginned, and almost 900 other gins are operated.

### Webelieve the combination ofregulations, which arebeing proposedby theNMED in orderto comply with the requirements ofHB 192, and the monitoring data which demonstrates compliance with the NAAQS at the boundary line, results in areasonable solution for all parties. This regulation will allow the cotton ginning industry to operate in New Mexico with reasonableregulatoryrequirements, while assuring the citizens of New Mexico that the gins operating in this state meet the necessary requirements for operation.

### STATE OF NEW MEXICO 

## ENVIRONMENTALIMPROVEMENT BOARD
PETITION FOR PUBLIC HEARING TO CONSIDER ADOPTION OF 20.2.66 NMAC -- COTTON GINS
NEW MEXICO ENVIRONMENT DEPARTMENT'S NOTICE OF INTENT TO PRESENT TECHNICAL TESTIMONY The New Mexico EnvironmentDepartment (NMED) submits this Notice ofIntentto

.PresentTechnical Testimonyin support ofthe above-referenced petition at the public hearing on

October 5, 2004. 1. The person for whom the witnesses will testify. TheNMED. 2. The name and qualifications ofeach technical witness. LanyWeaver. LanyWeaveris an Environmental Analyst in the Control Strategies Section ofthe Air QualityBureau. Shehas worked in the Air QualityBureau since 1990 in the

areas ofregulation andpermit development. Ms. Weaverholds a B.S. degree in Mechanical Engineering from the UniversityofCalifornia at Davis. Gi-Dong Kim. Mr. Gi-Dong Kim is an air dispersion modeler for the Atmospheric Dispersion Modeling Section ofthe Air QualityBureau. Hehas worked with the Air Quality Bureau since January of2003. In that time, he has conducted more than twenty air quality modeling projects similarto the study at issue here. He receivedboth M.S. and Ph.D. degrees in Environmental Engineering from The University ofTennessee, Knoxville and has attended conferences and taken training courses in airmodeling.

NOTICE OF INTENT - PAGE 1

### MaryUhL Ms. UbI is the Managerofthe Planning and Policy Section andhas been with the Air QualityBureau since 1992, starting as an Environmental Engineering Specialist doing computer-based air dispersionmodeling in supportofpermitissuance, regulation development and enforcement actions. In 1994, she was promoted to be the manager ofthe modeling section, and held thatposition until she was promotedto bemanager ofthe Planning and Policy Section in**2001~** 

### Duringher tenure with the Bureau, Ms. Uhl has completed over 500 dispersion modeling analyses for airpollution facilities in the state, developed a comprehensiveNew Mexico AirDispersion Modeling Guideline, performed modeling for streamline and general permit development and otherregulations, testified as an expert witness in the area ofair dispersionmodeling in several court cases andmanypublichearings, and published and presented apeer-reviewedtechnical article discussing the conversion ofoxides ofnitrogen to nitrogen dioxide atthe Annual Air andWasteManagement Association meetings. Mary is a cochair ofthe WRAP modeling forum and theWESTAR Technical Committee. She is theproject manager for the Farmington Ozone Study and the Corrales AirToxics Study. Ms. Uhl received herB.S. with amath and chemistrymajor from Purdue University in 1987. In 1989, Ms. Uhl completedher M.S. degree inAtmospheric Sciences atPurdueUniversity. 3. WhethertheNMED supports oropposes the proposedrevisions. The NMED supports the proposedregulations and revisions. 4. Summary oftestimony. The written testimony ofLanyWeaveris attachedto this Notice ofIntent. NMED estimates thatMs. Weaver's directtestimony will take 30 minutes. Gi-Dong Kim and MaryUh1

NOTICE OF INTENT

- PAGE 2

### maypresentbrieforal direct testimony, which ifpresented, is estimatedto lastten minutes. Ms. 

### UbI and Mr. Kim will also be available to answer questions regarding theproposedregulations. 5. A list and description ofanticipated exhibits. EXHIBIT NUMBER NMED Exhibit 1 NMED Exhibit 2 NMED Exhibit 3 NMED Exhibit 4 NMED Exhibit 5 TITLE OF EXHIBIT Proposed 20.2.66 NMAC Revised Proposed 20.2.66 NMAC New Mexico Air Quality Control Act· Testimony ofLanyWeaver Cotton Gin StudyReport NMED Exhibits 1,3-4 are attached. NMED Exhibits 2 and 5 arebeing finalized. Exhibit 5 is a report on the monitoring studyNMED performed on the MesaFarmers Cotton Gin. The report describes thebasis for the setback distances incorporatedin the proposedregulation. Exhibit 2 is the revisedproposedregulation. 6. Reservation ofRights. This Notice ofIntentto PresentTechnical Testimonyis bas.ed on the NMED's petition. TheNMED reserves the right to call anyperson to testify and to present any exhibit 

### in response to another notice ofintent orpublic comment filed in this matter orto anytestimony or exhibit offered at the public hearing. The NMED also reserves the right to call anyperson as arebuttal witness and to present any exhibit in supportthereof.

NOTICE OF INTENT

- PAGE 3NOTICE OF INTENT - PAGE 4 

### Respectfully submitted, NEW MEXICO ENVIRONMENT DEPARTMENT

Ashley C. Schannauer Tracy Hughes Office ofGeneral Counsel New Mexico EnvironmentDepartment 1190 St. Francis Drive SantaFe, New Mexico 87502-6110 Telephone (505) 827-6891 Facsimile (505) 827-1628

### TITLE 20 ENVIRONMENTAL PROTECTION CHAPTER2 AIR QUALITY (STATEWIDE) PART 66 COTTON GINS
20.2.66.1 ISSUING AGENCY: Environmental Improvement Board. [MO-DY-YR] 

### 20.2.66.2 SCOPE: All persons who intend to construct ormodify a cotton ginning facility as defined in this Part, except as otherwise providedby this Part. [MO-DY-YR] 

### 20.2.66.3 STATUTORY AUTHORITY: Environmental ImprovementAct, NMSA 1978, Section 74-1-8(A)(4) and Air Quality Control Act, NMSA 1978, Sections 74-2-1 et seq., including specifically, Section 74-2-5(A) and (B), and Section 74-2- 7(A)(1), (B), (C), (D) and (0). [MO-DY-YR] 

### 20.2.66.4 DURATION: Permanent. [MO-DY-YR] 

### 20.2.66.5 EFFECTIVE DATE: MO-DY-YR except where a later date is cited at the end ofa section orparagraph.
. [MO-DY-YR] 

### 20.2.66.6 OBJECTIVE: The objective ofthis Part is to specify the best system of emissions reduction for cotton ginning facilities under the provisions ofAir Quality Control Act, NMSA 1978 ("the Act"), Section 74-2-7(0), and to assure that permits issued underthis Part assure the maintenance ofNational Ambient Air Quality Standards, in accordance with Section 74-2-5 (A) and (B)(1) ofthe Act and the federal Clean Air Act, Section 11O(a). [MO-DY-YR] 

### 20.2.66.7 DEFINITIONS: In addition to the terms defined in 20.2.2 NMAC (Definitions), as used in this Part: 

### A. "Bale" means aunit ofmeasurement to denote an amount oflintcotton with a nominal weight of500 pounds. 

### B. "Class I area" means any Federal land area that is classified or reclassified as "Class I" as described in 20.2.74.108 NMAC. 

### C. "Cotton ginning facility" or "Facility" means any facility that separates seed, lint, and trash from raw cotton, and bales lint cotton for further processing, that will emit no more than fifty (50) tons per year ofany regulated air contaminant for which there is a NAAQS, and thathas the Standard Industrial Classification Code 0724 Cotton Ginning and the North American Industrial Standard Classification Code 115111 Cotton Ginning. 

### D. "Department" is the State ofNew Mexico Environment Department.

20.2.66 NMAC 

### Draft

- 19 July 2004

- 

### Draft EXHIBIT 1 

### 1

### E. 

### "Fugitive Emissions" 

### means those emissions that could notreasonably pass through a stack, chimney, vent, or other functionally equivalent opening. F. "High efficiency cyclone dust collector" 

### means any cyclone type collector ofthe 2D-2D or ID-3D configuration. These designations referto the ratio of cylinderto cone length, where D is the diameter ofthe cylinderportion. A 2D-2D cyclone would exhibit a cylinderlength of2 x D and a cone length of2 x D, with aninety percent (90%) efficiency for Total SuspendedParticulates. A ID-3D cyclone would exhibit a cylinder length ofI x D and a cone length of3 x D, with aninety-five percent (95%) efficiency for Total Suspended Particulates. G. "High pressure exhausts" 

### means the exhaust from all air handling systems located at a cotton gin that are not defined as 'low pressure exhausts'. H. "Low pressure exhausts" 

### means the exhaust from systems at a cotton gin that handle air from the cottonlinthandling system andbattery condenser. I. "Non-attainment" 

### means designated by the U.S. EPA as notmeeting one or more ofthe National Ambient Air Quality Standards. Current non-attainment areas in New Mexico are Anthony and SunlandParkin DonaAna County. J. "Opacity" 

### means the degree to which emissions reduce the transmission oflight and obscure the view ofan object in the background. K. 

### "Owner or Operator" 

### is any person who owns or operates a process or process equipment at the source for which coverage underthe Permit has been granted. L. 

### "Part2.72" 

### means the air quality control regulation 20.2.72 NMAC (Construction Permits); that is, Part 72 ofTitle 20, Chapter 2 ofthe New Mexico Administrative Code. [MO-DY-YR] 20.2.66.8 [RESERVED] 20.2.66.9 DOCUMENTS: 

### Documents incorporated and cited in this Partmay be viewed at the New Mexico Environment Department, Air Quality Bureau, 2048 Galisteo Street, SantaFe, NM 87505. [MO-DY-YR] 20.2.66.10 - 20.2.66.199 [RESERVED] 20.2.66.200 ISSUANCE OF PERMIT UNDER PART 2.72: 

### The Department shall not deny issuance orrevision ofan air quality constructionpermitunder 20.2.72 NMAC [Part 2.72] 

### to any cotton ginning facility, as defined in Section 7.C ofthis Part, ifthe permit application and the pemlit conditions meetthe requirements ofthis Part. [MO-DY-YR] 20.2.66.201 PERMIT APPLICATION REQUIREMENTS: 

### Pennit applications for eachpermit issued in accordance with Section 200 ofthis Part shall: A. Meet all requirements for the contents ofpermit applications under 20.2.72.203 NMAC Paragraphs A(l) through A(3), A(5) through A(l5), and B through E'

### , B. 

### State thatthis Part is applicable to the cotton ginning facility;

20.2.66 NMAC Draft

- 

### 19 July 2004

- Draft 

### 2C. 

### Include proposed limitations to hours ofoperations and other limitations that will result in allowable emissions ofno more than fifty (50) tons peryear ofany regulated air contaminant for which there is a NAAQS; and D. Include the proposed Best System ofEmissions Reduction for the facility, which for purposes ofthis Part shall include at aminimumthe controls, limitations, plans andpractices set out in Section 202 ofthis Part. [MO-DY-YR] 20.2.66.202 PERMIT REQUIREMENTS: 

### Permits issued in accordance with Section 200 ofthis Part shall include the following Best System ofEmissions Reduction, as well as otherconditions, including but not limited to recordkeeping, monitoring, reporting requirements, and test methods, as required to ensure the enforceability of permit conditions: A. Limitations from Application. Except as modified by the Department, the proposed emissionreduction system and limitations specified in the application. B. 

### Emissions Control on High Pressure Exhausts (1) 

### All emissions from high pressure exhausts shall be controlledby the use ofahigh efficiency cyclone dust collectors (the terms high pressure exhaust and high efficiency cyclone dust collectors are defined in Section 7 ofthis Part). (2) The opacity ofvisible emissions from cyclones shall not exceed twenty percent (20%). C. 

### Emissions Control on Low Pressure Exhaust (1) 

### All emissions from low pressure exhausts (as defined in Section 7.H of this Part) shall be controlled by the use ofscreens with a mesh size of70 by 70 or finer (U.S. Sieve), orthe use ofperforated condenser drums with holes not exceeding 0.045 inches in diameter, orwith equipment ofequivalent orhigher design efficiency, as determined by the Department. (2) The opacity ofvisible emissions from low pressure exhausts shall not exceedtwenty percent (20%). D. 

### A Fugitive DustManagementPlanthat includes the following, ormethods at least as effective in controlling fugitive dust (1) 

### Complete enclosure ofall burrhoppers. (2) Measures to be taken to control fugitive dust emissions from any source, process or operation occurring within the cotton ginbuilding to assure thatno fugitive dust emissions to the outside atmosphere from any door, vent, orwindow are visible. (3) Measures to be taken to minimize fugitive emissions from the handling, transportation or disposition ofany substance ormaterial thatis likely to be scattered by the air orwind atthe facility, including butnot limited to materials in the gin yard and haul roads, including all open areas, right-ofways, storagepiles, and vehicles at the facility. Such measures shall be sufficient to assure thatno visible fugitive dust emissions generated from the property leave the property. Emissions may be controlled by watering, paving and cleaning, surfactants, or other equivalentmeans. (4) The posted speed limit for all vehicles on unpaved haul roads and in unpaved yard areas shall be no more than 10 miles perhour.

20.2.66 NMAC Draft

- 

### 19 July 2004

-Draft 

### 3

### E. 

### Requirements for Fuel Burning Equipment. This Section applies to fuel burning equipment such as driers and humidifiers, but does not apply to mobile sources (such as loaders, haul trucks, and othervehicles). (1) Any emissions from fuel burning equipment shall not exhibitgreater than 20 percent opacity. (2) The owneroroperator shall use only the following fuels: natural gas, liquefied petroleum gas (LPG), propane, orNo.2 diesel fuel with a sulfur content equal to or less than 0.05 percentby weight. (3) The owner or operator shall operate and maintain the equipment such that emissions and opacity limitations in the permit are met. F. Location Restrictions. (1) The distance from the cotton gin to the property boundary shall be at least 300 feet in all directions. (2) The distance from the cotton gin to the nearest existing state park, recreation area, or school shall be at least 0.25 miles. The distance from the cotton gin to the nearest Class 1 

### Area shall be at leastthree miles. G. Maintenance ofEquipment (1) All materials handling systems and control equipment shall be installed and operatedas required to assure thatpermit conditions will be met. (2) The owner or operator shall conduct daily visual inspection ofthe material handling systems for leaks, breaks or othervisible signs ofequipment malfunctions, andrepair such leaks, breaks or malfunctions in a timely manner. (3) The owner or operator shall maintain a record ofthe daily inspections, including any equipmentmalfunctions discovered and corrective action taken to repair the malfunction. [MO-DY-YR]

20.2.66 NMAC Draft

- 19 July 2004

- Draft 

### 4

### New Mexico Air Quality Control Act § 74-2-1. Short title Chapter 74, Article 2 NMSA 1978 may be cited as the "Air Quality Control Act". 74-2-2. Definitions As used in the Air Quality Control Act:

A. "air contaminant" means a substance, including any particulate matter, fly ash, dust, fumes, gas, mist, smoke, vapor, micro-organisms, radioactive material, any combination thereof or any decay or reaction product thereof; B. "air pollution" means the emission, except emission that occurs in nature, into the outdoor atmosphere of one or more air contaminants in quantities and of a duration that may with reasonable probability injure human health or animal or plant life or as may unreasonably interfere with the public welfare, visibility or the reasonable use of property; C. "department" means the department of environment; D. "director" means the administrative head of a local agency; E. "emission limitation" or "emission standard" means a requirement established by the environmental improvement board or the local board, the department, the local authority or the local agency or pursuant to the federal act that limits the quantity, rate or concentration, or combination thereof, of emissions of air contaminants on a continuous basis, including any requirements relating to the operation or maintenance of a source to assure continuous reduction; F, "federal act" means the federal Clean Air Act, 

### [FN1] its subsequent amendments and successor provisions; G. "federal standard of performance" means a standard of performance, emission limitation or emission standard adopted pursuant to 

### 42 U.S.C. Section 7411 or 

### 74]2; H. "hazardous air pollutant" means an air contaminant that has been listed as a hazardous air pollutant pursuant to the federal act; 1. "local agency" means the administrative agency established by a local authority pursuant to 

### Paragraph (2) ofSubsection A ofSection 74-2-4 NMSA 1978; J. "local authority" means any of the following political subdivisions of the state that have, by following the procedure set forth in 

### Subsection A ofSection 74-2-4 NMSA 1978, assumed jurisdiction for local administration and enforcement of the Air Quality Control Act:

(1) a county that was a class A county as of January 1, 1980; or (2) a municipality with a population greater than one hundred thousand located within a county that was a class A county as of January 1, 1980; K. "local board" means a municipal, county or joint air quality control board created by a local authority; L. "mandatory class I area" means any of the following areas in this state that were in existence on August 7, 1977:

(1) national wilderness areas that exceed five thousand acres in size; and (2) national parks that exceed six thousand acres in size; M. "modification" means a physical change in, or change in the method of operation of, a source that results in an increase in the potential emission rate of a regulated air contaminant emitted by the source or that results in the emission of a regulated air contaminant not previously emitted, but does not include:

(1) a change in ownership of the source; (2) routine maintenance, repair or replacement; (3) installation of air pollution control equipment, and all related process equipment and materials necessary for its operation, undertaken for the purpose of complying with regulations adopted by the environmental improvement board or the local board or pursuant to the federal act; or

EXHIBIT 3(4) unless previously limited by enforceable permit conditions: (a) an increase in the production rate, if such increase does not exceed the operating design capacity of the source; (b) an increase in the hours of operation; or (c) use of an alternative fuel or raw material if, prior to January 6, 1975, the source was capable of accommodating such fuel or raw material or if use of an alternate fuel or raw material is caused by a natural gas curtailment or emergency allocation or an other lack of supply of natural gas; N. "nonattainment area" means for an air contaminant an area that is designated "nonattainment" with respect to that contaminant within the meaning of Section 107(d) of the federal act; O. "person" includes an individual, partnership, corporation, association, the state or political subdivision of the state and any agency, department or instrumentality of the United States and any of their officers, agents or employees; P. "potential emission rate" means the emission rate of a source at its maximum capacity to emit a regulated air contaminant under its physical and operational design, provided any physical or operational limitation on the capacity of the source to emit a regulated air contaminant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored or processed, shall be treated as part of its physical and operational design only if the limitation or the effect it would have on emissions is enforceable by the department or the local agency pursuant to the Air Quality Control Act or the federal act; Q. "regulated air contaminant" means an air contaminant, the emission or ambient concentration of which is regulated pursuant to the Air Quality Control Act or the federal act; R. "secretary" means the secretary of environment; S. "significant deterioration" means an increase in the ambient concentrations of an air contaminant above the levels allowed by the federal act or federal regulations for that air contaminant in the area within which the increase occurs; T. "source" means a structure, building, equipment, facility, installation or operation that emits or may emit an air contaminant; U. "standard of performance" means a requirement of continuous emission reduction, including any requirement relating to operation or maintenance of a source to assure continuous emission reduction; V. "state implementation plan" means a plan submitted by New Mexico to the federal environmental protection agency pursuant to 

### 42 U.S.C. Section 7410; and W. "toxic air pollutant" means an air contaminant, except a hazardous air pollutant, classified by the environmental improvement board or the local board as a toxic air pollutant. 

### [FNl] 42 U.S.C.A. § 7401 et seq. § 74-2-3. Environmental improvement board A. In taking any action under the Air Quality Control Act, a majority of the environmental improvement board constitutes a quorum, but any action, order or decision of the environmental improvement board requires the concurrence of three members present at a meeting. B. Except as provided in the Air Quality Control Act, the jurisdiction of the environmental improvement board extends to all areas of the state except within the boundaries of a local authority. § 74-2-4. local authority A. A county or municipality meeting the qualifications set forth in 

### Paragraph 

### (1) or (2) of Subsection J 

### ofSection 74-2-2 NMSA 1978 may assume jurisdiction as a local authority


### 2by adopting an ordinance providing for the local administration and enforcement of the Air Quality Control Act. The ordinance shall: (1) create a local board to perform, within the boundaries of the local authority, those functions delegated to the environmental improvement board under the Air Quality Control Act, except any functions reserved exclusively for the environmental improvement board; (2) create a local agency to administer and enforce the prOVisions of the Air Quality Control Act within the boundaries of the local authority that shall, within the boundaries of the local authority, perform all of the duties required of the department and exert all of the powers granted to the department, except for those duties and powers reserved exclusively for the department; and (3) prOVide for the appointment of a director who shall perform for the local authority the same duties as reqUired of the secretary under the Air Quality Control Act, except the duties and powers reserved exclusively for the secretary. B. At least a majority of the members of a local board shall be individuals who represent the public interest and do not derive any significant portion of their income from persons subject to or who appear before the local board on issues related to the federal act or the Air Quality Control Act. C. Prior to adopting any ordinance regulating air pollution, public hearings and consultations shall be held as directed by the local authority adopting the ordinance. The provisions of any ordinance shall be consistent with the substantive provisions of the Air Quality Control Act and shall provide for standards and regulations not lower than those reqUired by regulations adopted by the environmental improvement board. D. NotWithstanding the provisions of Subsection A of this section, the environmental improvement board and the secretary shall retain jurisdiction and control for the administration and enforcement of the Air Quality Control Act as determined in that act with respect to any act or failure to act, governmental or proprietary, of any local authority that causes or contributes to air pollution, including proceeding against a local authority as proVided in 

### Section 74-2-12 NMSA 1978. "Failure to act", as used in this section, includes failure to act against any person Violating the applicable ordinance or regulation adopted pursuant thereto. E. Any local authority that is located within a transportation-related pollutant nonattainment area or maintenance area may provide for a vehicle emission inspection and maintenance program for vehicles under twenty-six thousand pounds gross vehicle weight powered by a spark-ignited internal combustion engine, which program shall be no more stringent than that reqUired under the federal act or under federal air quality standards. Any two or more local authorities may adopt identical rules and regulations necessary to implement the vehicle emission inspection and maintenance program, including examining the alternatives of public or private operation of the program. F. Any local authority that has implemented a vehicle emission inspection and maintenance program may extend the enforcement of that program by entering into joint powers agreements with any municipality or county within the designated airshed or with the department. G. No tax shall be imposed to fund any vehicle emission inspection and maintenance program until the local authority has submitted the question of imposition of a tax to the registered voters of the local authority and those registered voters have approved the imposition of the tax.



### 3H. A local authority having a vehicle emission inspection and maintenance program shall conduct the vehicle emission inspection and maintenance program through a decentralized privately owned and operated system unless air quality emissions result in automatic implementation of another type of program under the terms of a contingency plan required and approved by the United States environmental protection agency. The local authority shall set the emission inspection fee by ordinance. 1. A local authority having a vehicle emission inspection and maintenance program is authorized to adopt rules, regulations and gUidelines governing the establishment of private vehicle emission inspection and maintenance stations. No private vehicle emission inspection and maintenance station shall test vehicles unless the station possesses a valid permit issued by the local agency. Permit fees shall be determined by ordinance of the local authority and s.hall not exceed two hundred dollars ($200) per year per station. Additionally, a local authority may charge a permit fee of up to thirty-five dollars ($35.00) per year for each vehicle emissions mechanic and for each vehicle emissions inspector. The imposition of permit fees does not require a vote of the registered voters of the local authority. § 74-2-5. Duties and powers; environmental improvement board; local board A. The environmental improvement board or the local board shall prevent or abate air pollution. B. The environmental improvement board or the local board shall:

(1) adopt, promulgate, pUblish, amend and repeal regulations consistent with the Air Quality Control Act to attain and maintain national ambient air quality standards and prevent or abate air pollution, including regulations prescribing air standards, within the geographic area of the environmental improvement board's jurisdiction or the local board's jurisdiction, or any part thereof; and (2) adopt a plan for the regulation, control, prevention or abatement of air pollution, recognizing the differences, needs, requirements and conditions within the geographic area of the environmental improvement board's jurisdiction or the local board's jurisdiction or any part thereof. C. Regulations adopted by the environmental improvement board or the local board may:

(1) include regulations to protect visibility in mandatory class I areas to prevent significant deterioration of air qUi3lity and to achieve national ambient air quality standards in nonattainment areas; provided that such regulations:

(a) shall be no more stringent than but at least as stringent as required by the federal act and federal regulations pertaining to visibility protection in mandatory class I areas, pertaining to prevention of significant deterioration and pertaining to nonattainment areas; and (b) shall be applicable only to sources subject to such regulation pursuant to the federa I act; (2) prescribe standards of performance for sources and emission standards for hazardous air pollutants that, except as provided in Paragraph (3) of this subsection:

(a) shall be no more stringent than but at least as stringent as required by federal standards of performance; and (b) shall be applicable only to sources subject to such federal standards of performance; (3) include regulations governing emissions from solid waste incinerators that shall be at least as stringent as, and may be more stringent than, any applicable federal emission limitations; (4) require notice to the department or the local agency of the intent to introduce or permit the introduction of an air contaminant into the air within the geographical area 

### 4of the environmental improvement board's jurisdiction or the local board's jurisdiction; and (5) require any person emitting any air contaminant to:

(a) install, use and maintain emission monitoring devices; (b) sample emissions in accordance with methods and at locations and intervals as may be prescribed by the environmental improvement board or the local board; (c) establish and maintain records of the nature and amount of emissions; (d) submit reports regarding the nature and amounts ot'emissions and the performance of emission control devices; and (e) proVide any other reasonable information relating to the emission of air contaminants. D. Any regulation adopted under this section shall be consistent with federal law, if any, relating to control of motor vehicle emission. E. In making its regulations, the environmental improvement board or the local board shall give weight it deems appropriate to all facts and circumstances, including but not limited to:

(1) character and degree of injury to or interference with health, welfare, visibility and property; (2) the public interest, including the social and economic value of the sources and subjects of air contaminants; and (3) technical practicability and economic reasonableness of reducing or eliminating air contaminants from the sources involved and previous experience with equipment and methods available to control the air contaminants involved. § 74-2-5.1. Duties and powers of the department and the local agency The department and the local agency for their respective jurisdictions shall:

A. develop facts and make investigations and studies consistent with the Air Quality Control Act and, as reqUired for enforcement of that act, enter at all reasonable times in or upon any private or public property, except private residences, that the department or the local agency has reasonable cause to believe is or will become a source contributing to air pollution and require the production of information relating to emissions that cause or contribute to air pollution. The results of any such investigations shall be reduced to writing if any enforcement action is contemplated, and a copy shall be furnished to the owner or occupants of the premises before the action is filed; B. institute legal proceedings to compel compliance with the Air Quality Control Act or any regulation of the environmental improvement board or the local board; C. encourage and make every reasonable effort to obtain voluntary cooperation by the owner or occupants to preserve, restore or improve air purity; D. consult with any person proposing to construct, install or otherwise acquire an air contaminant source, device, system or control mechanism concerning the efficiency of the device, system or mechanism or the air pollution problem that may be related to the source, device, system or mechanism; prOVided that consultation shall not relieve any person from compliance with the Air Quality Control Act, regulations in force pursuant to that act or any other provision of law; E. establish a small business stationary source technical and environmental compliance assistance program, consistent with the provisions of Section 507 of the federal act; F. accept, receive and administer grants or other funds or gifts from public and private agencies, including the federal government, or from any person; G. classify and record air contaminant sources that, in its judgment, may cause or contribute to air pollution, according to levels and types of emissions and other characteristics that relate to air pollution; prOVided, classifications may be for


### 5application to the entire geographical area of the department's responsibility or the local authority's responsibility or to any designated portion of that area and shall be made with special reference to the effects on health, economic and social factors and physical effects on property; and H. develop and present to the environmental improvement board or the local board a plan for the regulation, control, prevention or abatement of air pollution, recognizing the differences, needs, requirements and conditions in the different portions of the geographical area of the department's responsibility or the local authority's responsibility. § 74-2-5.2. State air pollution control agency; specific duties and powers of the department The department is the state air pollution control agency for all purposes under federal legislation relating to air pollution. The department shall:

A. take all action necessary to secure for the state and its political subdivisions the benefits of federal legislation; B. 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 and initiate cooperative action between a local authority and the department, between one local authority and another or among any combination of local authorities and the department for control of air pollution in areas having related air pollution problems that overlap the boundaries of political subdivisions; and C. enter into agreements and compacts with adjoining states and Indian tribes, where appropriate. § 74-2-6. Adoption of regulations; notice and hearings A. Any person may recommend or propose regulations to the environmental improvement board or the local board for adoption. The environmental improvement board or the local board shall determine whether to hold a hearing within sixty days of submission of a proposed regulation. B. No regulations or emission control requirement shall be adopted until after a public hearing by the environmental improvement board or the local board. As used in this section, "regulation" includes any amendment or repeal thereof. Hearings on regulations of nonstatewide application shall be held within that area that is substantially affected by the regulation. Hearings on regulations of statewide application may be held in Santa Fe or within any area of the state substantially affected by the regulation. C. Notice of the hearing shall be given at least thirty days prior to the hearing date and shall state the subject, the time and the place of the hearing and the manner in which interested persons may present their views. The notice shall also state where interested persons may secure copies of any proposed regulation or air quality standard. The notice shall be published in a newspaper of general circulation in the area affected. Reasonable effort shall be made to give notice to all persons who have made a written request to the environmental improvement board or the local board for advance notice of its hearings. D. At the hearing, the environmental improvement board or the local board shall allow all interested persons reasonable opportunity to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. Any person heard or represented at the hearing shall be given written notice of the action of the environmental improvement board or the local board.



### 6E. The environmental improvement board or the local board may designate a hearing officer to take evidence in the hearing. F. No regulations or emission control requirement adopted by the environmental improvement board or the local board shall become effective until thirty days after its filing under the State Rules Act. § 74-2-7. Permits; permit appeals to the environmental improvement board or the local board; permit fees A. By regulation, the environmental improvement board or the local board shall require:

(1) a person intending to construct or modify any source, except as otherwise specifically provided by regulation, to obtain a construction permit from the department or the local agency prior to such construction or modification; and (2) a person intending to operate any source for which an operating permit is required by the 1990 amendments to the federal act, except as otherwise specifically provided by regulation, to obtain an operating permit from the department or the local agency. B. Regulations adopted by the environmental improvement board or the local board shall include at least the following provisions:

(1) requirements for the submission of relevant information, including information the department or the local agency deems necessary to determine that regulations and standards under the Air Quality Control Act or the federal act will not be violated; (2) specification of the deadlines for processing permit applications; provided the deadline for a final decision by the department or the local agency on a construction permit application may not exceed:

(a) ninety days after the application is determined to be administratively complete, if the application is not subject to requirements for prevention of significant deterioration, unless the secretary or the director grants an extension not to exceed ninety days for good cause, including the need to have public hearings; or (b) one hundred eighty days after the application is determined to be administratively complete, if the application is subject to requirements for prevention of significant deterioration, unless the secretary or the director grants an extension not to exceed ninety days for good cause, including the need to have public hearings; (3) that if the department or local agency fails to take final action on a construction permit application within the deadlines specified in Paragraph (2) of this subsection, the department or local agency shall notify the applicant in writing that an extension of time is required to process the application and specify in detail the grounds for the extension;

. (4) a description of elements required before the

### d~partment or local agency shall deem an application administratively complete; (5) specification of the public notice, comment period and public hearing, if any, required prior to the issuance of a permit; provided the permit regulations adopted:

(a) by the environmental improvement board shall include provisions governing notice to nearby states; and (b) by any local board shall include provisions requiring that notice be given to the department of all permit applications by any source that emits, or has a potential emission rate of, one hundred tons per year or more of any regulated air contaminant, including any source of fugitive emissions of each regulated air contaminant, at least sixty days prior to the date on which construction or major modification is to commence; (6) a schedule of construction permit fees sufficient to cover the reasonable costs of:

(a) reviewing and acting upon any application for such permit; and (b) implementing and enforcing the terms and conditions of the permit, excluding any court costs or other costs associated with an enforcement action;


### 7(7) a schedule of emission fees consistent with the provisions of Section 502(b)(3) of the 1990 amendments to the federal act; (8) a method for accelerated permit processing that may be requested at the sole discretion of the applicant at the time the applicant submits a construction permit application and that:

(a) allows the department or local agency to contract with qualified outside firms to assist the department or local agency in its accelerated review of the construction permit application; provided that the department or local agency can contract with a qualified firm thatdoes not have a conflict of interest; and (b) establishes a process for the department or local agency to account for the expenditure of the accelerated permit processing fees; (9) allowance for additional permit application fees, sufficient to cover the reasonable costs of an accelerated permit application review process. Before the applicant is notified that the permit application has been determined to be complete, the department or local agency shall give the applicant a reasonable estimate of costs of an accelerated permit application review process; (10) specification of the maximum length of time for which a permit shall be valid; provided that for an operating permit such period may not exceed five years; and (11) for an operating permit only:

(a) provisions consistent with Sections 502(b) and 505(b) of the federal act providing: 1) notice to and review and comment by the United States environmental protection agency; and 2) that if the department or local agency receives notice of objection from the United States environmental protection agency before the operating permit .is issued, the department or the local agency shall not issue the permit unless it is revised and issued under Section 505(c) of the federal act; (b) provisions governing renewal of the operating permit; and (c) specification of the conditions under which the operating permit may be terminated, modified or revoked and reissued prior to the expiration of the term of the operating permit. C. Except as prOVided in Subsection 0 of this section, the department or the local agency may deny any application for:

(1) a construction permit if it appears that the construction or modification:

(a) will not meet applicable standards, rules or requirements of the Air Quality Control Act or the federal act; (b) will cause or contribute to air contaminant levels in excess of a national or state standard or, within the boundaries of a local authority, applicable local ambient air quality standards; or (c) will violate any other provision of the Air Quality Control Act or the federal act; and (2) an operating permit if the source will not meet the applicable standards, rules or requirements pursuant to the Air Quality Control Act or the federal act. D. The department or the local agency may specify conditions to any permit granted under this section, including:

(1) for a construction permit:

(a) a requirement that such source install and operate control technology, determined on a case-by-case basis, sufficient to meet the standards, rules and requirements of the Air Quality Control Act and the federal act; (b) individual emission limits, determined on a case-by-case basis, but only as restrictive as necessary to meet the requirements of the Air Quality Control Act and the federal act or the emission rate specified in the permit application, whichever is more stringent; (c) compliance with applicable federal standards of performance;


### 8(d) reasonable restrictions and limitations not relating to emission limits or emission rates; or (e) any combination of the conditions listed in this paragraph; and (2) for an operating permit, terms and conditions sufficient to ensure compliance with the applicable standards, rules and requirements pursuant to the Air Quality Control Act and the federal act. E. This section does not authorize the department or the local agency to require the use

. of machinery, devices or equipment from a particular manufacturer if the federal

standards of performance, state regulations and permit conditions may be met by machinery, devices or equipment otherwise available. F. The issuance of a permit does not relieve any person from the responsibility of complying with the provisions of the Air Quality Control Act and any applicable regulations of the environmental improvement board or the local board. Any conditions placed upon a permit by the department or the local agency shall be enforceable to the same extent as a regulation of its board. G. A person who participated in a permitting action before the department or the local agency shall be notified by the department or the local agency of the action taken and the reasons for the action. Notification of the applicant shall be by certified mail. H. A person who participated in a permitting action before the department or the local agency and who is adversely affected by such permitting action may file a petition for hearing before the environmental improvement board or the local board. The petition shall be made in writing to the environmental improvement board or the local board within thirty days from the date notice is given of the department's or the local agency's action. Unless a timely petition for hearing is made, the decision of the department or the local agency shall be final. 1. If a timely petition for hearing is made, the environmental improvement board or the local board shall hold a hearing within sixty days after receipt of the petition. The environmental improvement board or the local board shall notify the petitioner and the applicant or permittee, if other than the petitioner, by certified mail of the date, time and place of the hearing. If the subject of the petition is a permitting action deemed by the environmental improvement board or the local board to substantially affect the public interest, the environmental improvement board or the local board shall ensure that the public receives notice of the date, time and place of the hearing. The public in such circumstances shall also be given a reasonable opportunity to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. Any person submitting data, views or arguments orally or in writing shall be subject to examination at the hearing. J. The environmental ·improvement board or the local board may designate a hearing officer to take evidence in the hearing. All hearings shall be recorded. K. The burden of proof shall be upon the petitioner. Based upon the evidence presented at the hearing, the environmental improvement board or the local board shall sustain, modify or reverse the action of the department or the local agency respectively. L. Notwithstanding any other provision of law and subject to the provisions of 

### Section 74- 

### 2-4 NMSA 1978, a final decision on a permit by the department, the environmental improvement board, the local agency, the local board or the court of appeals that a source will or will not meet applicable local, state and federal air pollution standards and regulations shall be conclusive and is binding on every other state agency and as an issue


### 9before any other state agency shall be deemed resolved in accordance with that final decision. M. Subject to the provisions of 

### Section 74-2-4 

### NMSA 1978, if the local board has adopted a permit regulation pursuant to this section, persons constructing or modifying any source within the boundaries of the local authority shall obtain a permit from the local agency and not from the department. N. Fees collected pursuant to this section shall be deposited in:

(1) the state air quality permit fund created by 

### Section 74-2-15 

### NMSA 1978 if collected by the department; or (2) a fund created pursuant to 

### Section 74-2-16 

### NMSA 1978 if collected by a local agency pursuant to a permit regulation adopted by the local board pursuant to this section. O. The department may not deny an application for a construction permit for a cotton gin if the applicant proposes use of the best system of emissions reduction currently in use by cotton gins in the United States, as specified by regulation of the environmental improvement board, and the cotton gin has a potential emission rate, considering the use of the proposed emissions reduction system and the proposed hours of operation, of not more than fifty tons per year of any regulated air contaminant for which there is a national ambient air quality standard. The construction permit shall require that the applicant use the proposed emission reduction system and limit the hours of operation to the hours specified in the application. For purposes of this subsection, "best system of emissions reduction" for cotton gins means a system that will result in emissions reduction equal to or greater than that obtained by the use of condenser screens, seventy-mesh screen or equivalent on low-pressure exhausts and high-efficiency cyclone dust collectors on high-pressure exhausts. § 74-2-7.1. local governing body authority; construction permits; electric generation facilities A. A local governing body may receive a construction permit for a gas- fired electric generation facility with a one hundred megawatt or less generating capacity in accordance with the Air Quality Control Act and may transfer the permit to the owner or operator of a facility that meets the specifications of the permit. B. A facility that receives a construction permit transferred from a local governing body shall notify the department within thirty days of receiving the transferred construction permit. The permit shall be effective for that facility when the department receives notification of the transfer. The local governing body that transfers the construction permit shall notify the owner or operator of the local electric distribution company and the public regulation commission of the permitted project, including its net capacity rating and intended date of service. C. As used in this section, "local governing body" means the councilor other executive body charged with governing a municipality or county. D. The department may cooperate with and lend assistance to any Indian nation, tribe or pueblo located in the state in developing permitting procedures that fulfill federal environmental protection agency standards and that parallel the state permitting procedures described in Subsections A and B of this section. § 74-2-8. Variances



### 10A. The environmental improvement board or the local board may grant an individual variance from the limitations prescribed under the Air Quality Control Act, any regulation of the environmental improvement board or the local board or any permit condition imposed by the department or the local agency whenever it is found, upon presentation of adequate proof:

(1) that compliance with any part of that act, any regulation of the environmental improvement board or the local board or any permit condition will:

(a) result in an arbitrary and unreasonable taking of property; or (b) impose an undue economic burden upon any lawful business, occupation or activity; and (2) that the granting of the variance will not:

(a) result in a condition injurious to health or safety; or (b) cause or contribute to an air contaminant level in excess of any primary national ambient air quality standards. B. No variance shall be granted pursuant to this section until the environmental improvement board or the local board has considered the relative interests of the applicant, other owners of property likely to be affected by the discharges and the general public. C. Any variance or renewal thereof shall be granted within the requirements of Subsection A of this section and for time periods and under conditions consistent with the reasons therefor and within the following limitations:

(1) if the variance is granted on the ground that there are no practicable means known or available for the adequate prevention, abatement or control of the air pollution involved, it shall be only until the necessary means for prevention, abatement or control become known and available; (2) if the variance is granted on the ground that compliance with the particular requirement from which variance is sought will necessitate the taking of measures that because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time as, in the view of the environmental improvement board or the local board, is requisite for the taking of the necessary measures. A variance granted on the ground specified in this paragraph shall contain a timetable for the taking of action in an expeditious manner and shall be conditioned on adherence to the timetable; or (3) if the variance is granted on the ground that it is justified to relieve or prevent hardship of a kind other than that provided for in Paragraphs (1) and (2) of this subsection, it shall be for not more than one year. D. Any person seeking a variance shall do so by filing a petition for variance with the secretary or the director charged with implementation of the Air Quality Control Act at the site where the variance will apply. The secretary or the director shall promptly investigate the petition and make recommendation to his respective board as to the disposition of the petition. E. Upon receiving the recommendation of the secretary or the director on the variance, the environmental improvement board or the local board shall:

(1) if the secretary or the director favors a variance, hold a public hearing prior to the granting of any variance; and (2) if the secretary or the director is opposed to the granting of the variance, hold a hearing only upon the request of the petitioner. F. In the hearing, the burden of proof shall be upon the petitioner.


### 11§ 74-2-9. JUdicial review; administrative actions A. Any person adversely affected by an administrative action taken by the environmental improvement board, the local board, the secretary or the director may appeal to the court of appeals. All appeals shall be upon the record made at the hearing and shall be taken to the court of appeals within thirty days following the date of the action. B. For appeals of regulations, the date of the action shall be the date of the filing of the regulation by the environmental improvement board or the local board pursuant to the State Rules Act. C. Upon appeal, the court of appeals shall set aside the action only if found to be:

(1) arbitrary, capricious or an abuse of discretion; (2) not supported by substantial evidence in the record; or (3) otherwise not in accordance with law. D. After a hearing and a showing of good cause by the appellant, a stay of the action being appealed may be granted:

(1) by the environmental improvement board, the local board, the department or the local agency, whichever took the action being appealed; or (2) by the court of appeals if the environmental improvement board, the local board, the department or the local agency denies a stay or fails to act upon an application for a stay within sixty days after receipt of the application. § 74-2-10. Emergency powers of the secretary and the director A. Notwithstanding any other provision of the Air Quality Control Act, if the secretary or the director determines that a source or combination of sources presents an imminent and substantial endangerment to the public health or welfare or to the environment, he may bring suit in the district court for the county in which the source is located to restrain immediately any person causing or contributing to the alleged air pollution to stop the emission of air contaminants causing or contributing to such air pollution or to take such other action as may be necessary. B. If it is not practicable to assure prompt protection of the public health or welfare or the environment by commencement of a civil action, the secretary or the director may issue orders necessary to protect the public health or welfare or the environment. An order shall be effective for a period of not more than twenty-four hours, unless the secretary or the director brings a civil action before the expiration of twenty-four hours. If the secretary or the director brings an action within that time, the order shall be effective thereafter for forty-eight hours or for such longer period as may be authorized by the court pending litigation. § 74-2-11. Confidential information A. Any records, reports or information obtained under the Air Quality Control Act by the department, the environmental improvement board, the local board or the local agency shall be available to the public, except that upon a satisfactory showing to the secretary, the director, the environmental improvement board, the local board or the local agency, as applicable, by any person that records, reports or information, or particular parts thereof, except emission data, to which the department, the local agency, the environmental improvement board or the local board has access under the Air Quality Control Act, if made public, would divulge confidential business records or methods or processes entitled to protection as trade secrets of that person, the secretary, the director, the environmental improvement board or the local board, as applicable, shall consider such record, report or information, or particular portion thereof, confidential in


### 12accordance with the provisions of 

### Section 14-2-1 NMSA 1978 and 

### 18 U.S.c. Section 1905, except that such record, report or other information may be disclosed:

(1) to other officers, employees or authorized representatives of the department, the local agency, the environmental improvement board or the local board concerned with carrying out the Air Quality Control Act; (2) to officers, employees or authorized representatives of the United States environmental protection agency concerned with carrying out the federal act; or (3) when relevant, in any proceeding under the Air Quality Control Act or the federal act. B. The environmental improvement board or the local board shall adopt regulations to implement this section, including regulations specifying those business records entitled to treatment as confidential records. § 74-2-11.1. Limitations on regulations The Air Quality Control Act does not:

A. authorize the environmental improvement board or the local board to make any regulation with respect to any condition or quality of the outdoor atmosphere if the condition or air quality level and its effect are confined entirely within the boundaries of the industrial or manufacturing property within which the air contaminants are or may be emitted and public access is restricted within such boundaries; B. grant to the environmental improvement board or the local board any jurisdiction or authority affecting the relation between employers and employees with respect to or arising out of any condition of air quality; or C. supersede or limit the applicability of any law relating to industrial health, safety or sanitation. § 74-2-12. Enforcement; compliance orders; field citations A. When, on the basis of any information, the secretary or the director determines that a person has violated or is Violating a requirement or prohibition of the Air Quality Control Act, a regulation promulgated pursuant to that act or a condition of a permit issued under that act, the secretary or the director may: (1) issue a compliance order within one year after the violation known 

### [FNl] by the department or the local agency stating with reasonable specificity the nature of the violation and requiring compliance immediately or within a specified time period or assessing a civil penalty for a past or current Violation, or both; or (2) commence a civil action in district court for appropriate relief, including a temporary or permanent injunction. B. An order issued pursuant to Subsection A of this section may include a suspension or revocation of any permit, or portion thereof, issued by the secretary or the director. Any penalty assessed in the order shall not exceed fifteen thousand dollars ($15,000) per day of noncompliance for each violation. C. An order issued pursuant to Subsection A of this section shall become final unless, no later than thirty days after the order is served, the person named therein submits a written request to the secretary or the director for a public hearing. Upon such request, the secretary or the director shall promptly conduct a pUblic hearing. The secretary or the director shall appoint an independent hearing officer to preside over the public hearing. The hearing officer shall make and preserve a complete record of the proceedings and forward his recommendation based thereon to the secretary or the director, who shall make the final decision.


### 13D. The environmental improvement board or the local board may implement a field citation program through regulations establishing appropriate minor violations for which field citations assessing civil penalties not to exceed one thousand dollars ($1,000) per day of violation may be issued by officers or employees of the department or the local agency as designated by the secretary or the director. E. A person to whom a field citation is issued pursuant to Subsection D of this section may, within a reasonable time as prescribed by regulation by the environmental improvement board or the local board, elect to pay the penalty assessment or to request a hearing by the issuing agency on the field citation. If a request for hearing is not made within the time specified in the regulation, the penalty assessment in the field citation shall be final. F. Payment of a civil penalty required by a field citation issued pursuant to Subsection D of this section shall not be a defense to further enforcement by the department or the local agency to correct a violation or to assess the maximum statutory penalty pursuant to other authorities in the Air Quality Control Act if the violation continues. G. In determining the amount of a penalty to be assessed pursuant to this section, the secretary, the director or the person issuing a field citation shall take into account the seriousness of the violation, any good-faith efforts to comply with the applicable requirements and other relevant factors. H. In connection with a proceeding under this section, the secretary or the director may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents and may adopt rules for discovery procedures. 1. Penalties collected pursuant to an administrative order or a field citation shall be deposited in the:

(1) municipal or county general fund, as applicable, if the administrative order or field citation was directed to a source located within a local authority; or (2) state general fund if the administrative order or field citation was directed to any other source. 

### [FN1] So in original; probably should read "becomes known". § 74-2-12.1. Civil penalty; representation of department or local authority; limitation of actions A. A person who violates a provision of the Air Quality Control Act or a regulation, permit condition or emergency order adopted or issued pursuant to that act may be assessed a civil penalty not to exceed fifteen thousand dollars ($15,000) for each day during any portion of which a violation occurs. B. In an action to enforce the provisions of the Air Quality Control Act or an ordinance, regulation, permit condition or emergency order, adopted, imposed or issued pursuant to that act:

(1) the department shall be represented by the attorney general; (2) a local authority that is a municipality shall be represented by the attorney of the municipality; and (3) a local authority that is a county shall be represented by the district attorney within whose judicial district the county lies.



### 14C. No action for civil penalty shall be commenced more than five years from the date the violation was known by the department or the local agency. § 74-2-13. Inspection The secretary or the director or an authorized representative of either, upon presentation of his credentials:

A. shall have a right of entry to, upon or through any premises on which an emission source is located or on which any records required to be maintained by regulations of the environmental improvement board, the local board or by any permit condition are located; and B. may at reasonable times:

(1) have access to and copy any records required to be established and maintained by regulations of the environmental improvement board or the local board or any permit condition; (2) inspect any monitoring equipment and method required by regulations of the environmental improvement board, the local board or by any permit condition; and (3) sample any emissions that are required to be sampled pursuant to regulation of the environmental improvement board, the local board or any permit condition. § 74-2-14. Criminal penalties A. Notwithstanding an other provision of the Air Quality Control Act, a local authority may prescntJe-penaTtfes for violations of an ordinance:

(1) regulating open-fire burning or residential incineration; or (2) prohibiting the removal of motor vehicle emission control devices installed as reqUired by law and requiring the maintenance of such devices in operating condition. B. NotWithstanding any other provision of the Air Quality Control Act, it is a petty misdemei'lnor to violate any regulations of the environmental improvement board:

(1) regulating open-fire burning or residential incineration; or (2) prohibiting the removal of motor vehicle emission control devices installed as reqUired by law or requiring the maintenance of such devices in operating condition. C. Except as prOVided in Subsection D of this section, any person who knOWingly commits any of the following acts is guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of 

### Section 31-18-15 NMSA 1978:

(1) violation of any regulation relating to commercial or industrial incineration; (2) violation of any regulation adopting any federal standard of performance; (3) violation of any regulation relating to control of hazardous air pollutants; or (4) violation of any regulation relating to control of toxic air pollutants. D. At any source required to have an operating permit pursuant to Section 502 of the federal act, any person who knOWingly commits any violation of any applicable standard, regulation or requirement under the Air Quality Control Act or the federal act, any term or condition of an operating permit or any emission fee or filing requirement in any operating permit regulation of the environmental improvement board or the local board is guilty of a fourth degree felony and shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000) per day per violation or by imprisonment of not more than eighteen months, or both. E. Any person who knOWingly commits any violation of a regulation of the environmental improvement board or the local board not listed in Subsection B, C or D of this section is



### 15gUilty of a misdemeanor and shall be sentenced in accordance with the provisions of 

### Section 31-19-1 NMSA 1978. F. Any person who knowingly:

(1) makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained under the Air Quality Control Act, any permit issued pursuant to the Air Quality Control Act or any regulation adopted pursuant to that Act; or (2) falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required to be maintained under the Air Quality Control Act, any permit issued pursuant to the Air Quality Control Act or any ordinance or regulation adopted pursuant to that act is guilty of a misdemeanor and shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000) per day per violation or by imprisonment for not more than twelve months, or by both. G. Any person who knowingly releases into the ambient air any hazardous air pollutant or extremely hazardous substance listed pursuant to Section 302(a)(2) of the Superfund Amendments and Reauthorization Act of 1986, 

### 42 U.S.C. 1102(a)(2) that is not listed in Section 112 of the federal act and who knows at the time of the release that he creates a substantial danger of death or serious bodily injury to another person is gUilty of a second degree felony and, upon conviction, shall be sentenced to a term of imprisonment not to exceed nine years or a fine not to exceed one hundred thousand dollars ($100,000), or both. Any person, other than an individual or a governmental entity, who commits such violation is gUilty of a second degree felony and shall be fined in an amount not to exceed two hundred fifty thousand dollars ($250,000). If a conviction of any person under this subsection is for a second or subsequent violation, the maximum punishment shall be doubled with respect to both the fine and the imprisonment. § 74-2-15. State air quality permit fund A. There is created in the state treasury the "state air quality permit fund" to be administered by the department. All fees collected by the department pursuant to 

### Section 74-2-7 NMSA 1978 shall be deposited in the state air quality permit fund. B. Money in the state air quality permit fund is appropriated to the department for the purpose of paying the reasonable costs of:

(1) reviewing and acting upon any application for a permit; (2) if the owner or operator receives a permit, implementing and enforcing the terms and conditions of such permit not including any court costs or other costs associated with any enforcement action; (3) emissions and ambient monitoring; (4) preparing generally applicable regulations or guidance; (5) modeling, analysis and demonstrations; and (6) preparing inventories and tracking emissions. § 74-2-15.1. Repealed by l. 1992, Ch. 20, § 21, eff. March 5, 1992 § 74-2-16. Municipal or county air quality permit fund A. A local authority shall create within the municipal or county treasury a fund to be known as the" (name of municipality or county) air quality permit fund". All fees collected by a municipality or county pursuant to 

### Section 74-2-7 NMSA 1978 shall be deposited in the fund created pursuant to this section.



### 16B. Money in the fund created pursuant to this section shall be used by the municipality or county only for the purpose of paying the reasonable costs of:

(1) appealing, reviewing and acting upon any application for a permit; (2) if the owner or operator receives a permit, implementing and enforcing the terms and conditions of such permit, not including any court costs or other costs associated with any enforcement action; (3) emissions and ambient monitoring; (4) preparing generally applicable regulations or gUidance; (5) modeling, analysis and demonstrations; and (6) preparing inventories and tracking emissions. § 74-2-17. Continuing effect of existing laws, rules and regulations A. The Air Quality Control Act is supplementary to other legislation and does not repeal any laws but takes precedence over any law that conflicts with the provisions of that act. B. All county and municipal ordinances and all state, county and municipal regulations relating to air quality and air pollution are continued in effect until revised or repealed by the governmental body or administrative agency haVing jurisdiction; prOVided that copies of each ordinance and regulation:

(1) were filed under the State Rules Act on or before May 3, 1967; or (2) if adopted after May 3, 1967:

(a) were adopted by a governmental body or administrative agency haVing jurisdiction to do so under the Air Quality Control Act as in effect at the time of such adoption; and (b) if reqUired by the Air Quality Control Act as in effect at the time of such adoption, have been filed under the State Rules Act. §§ 74-2-18 to 74-2-22. Repealed by L. 1981, Ch. 373, § 7, eff. April 10, 1981



### 17

### Testimonybefore the Environmental ImprovementBoard Regarding Proposed 20.2.66 NMAC

- Cotton Gins 

### LanyWeaver, NMED This is the written testimony from LanyWeaver, representing the New Mexico Environment Department. LanyWeaveris an Environmental Analyst for the Control Strategies Section ofthe Air QualityBureau. She has worked in the Air QualityBureau since 1990 in the areas ofregulation andpermit development. Ms. Weaverholds aB.S. degree in Mechanical Engineering from the University ofCalifornia atDavis. 1. 

### Introduction 2. The Regulatory and StatutoryFrameworkfor Cotton Gins 3. The RegulatoryDevelopment Process for This Regulation 4. A Description ofProposed Regulation 20.2.66 NMAC

- Cotton Gins 5. The Development ofSetbackDistances 6. Comparison to Cotton Gin Requirements in OtherJurisdictions 7. Conclusion
1. Introduction Theproposed regulation implements the requirements ofthe 2003 legislative amendments to the Air Quality Control Act (AQCA) (NMSA, 1978 §§74-2-1 et seq.). The amendments provided for an alternativeprocedure for cotton gin owners to obtain air quality permits that is simpler than the currentprocedures involving air quality modeling. The amendments, however, leftitto the Environmental Improvement Board ("EIB") to adopt the actual terms ofthe alternative procedure. The regulations proposedhere are intendedto establishthe alternative permitting procedure for cotton gins envisionedby the legislature. The proposedregulations prescribe certain minimum technical standards to minimizeparticulate matter emissions and setback distances to ensure the maintenance ofambient air quality standards adjacent to cotton ginproperties.
2. The Regulatory and Statutory Frameworkfor Cotton Gins Cottonis grown and ginned in the southernportion ofNew Mexico. Cotton Gin facilities are subjectto air quality requirements due to theirpotential to emitparticulate matter. Particulate matterincludes PM1 0 (with an aerodynamic diameter equal to or less than 10 microns), TSP (total suspendedparticulate, 50 microns orless), and, to alesserextent, PM2.5 (2.5 microns or less). Air quality requirements stem from the federal Clean Air Act, the New Mexico Air Quality Control Act, and the state air quality construction

Testimony ofLanyWeaver EXHIBIT 4 

### 1

### pennitregulation codified under 20.2.72 ofthe New Mexico Administrative Code (NMAC). Two levels ofstatutoryrequirements are at issue here: (1) the state's duty to demonstrate to the U.S. Environmental Protection Agency ("USEPA") that New Mexico's State Implementation Plan ("SIP") will meetrequirements under the federal Clean AirAct, including the requirement to attain and maintain National Ambient Air Quality Standards ("NAAQS") and other SIP requirements, such as the New Mexico Ambient Air Quality Standards ("NMAAQS"), and (2) the duty ofthe Environmental Improvement Board ("EIB") to meetrequirements under the New Mexico Air Quality Act, including the requirements that the regulations itpromulgates are sufficient to attain and maintain the NAAQS and prevent air pollution, and a new requirement to address the pennit obligations ofcotton gins. As mandated under the federal Clean AirAct, the USEPA has developed NAAQS representing the maximum concentrations ofpollutants in the ambient airthat are consistent with public health, including the consideration ofimpacts on sensitive populations, such as the very young, the elderly, and those with respiratory conditions. NAAQS standards are in effect for PMI0 and PM2.5. The Clean Air Act also requires state and local air qualityjurisdictions to develop State Implementation Plans ("SIPs") to assure that the air quality standards are met. SIPs are the body ofstate statutes, regulations and policies that states uses to implementthe Clean AirAct. The New Mexico SIP includes aNew Mexico Ambient Air Quality Standard for TSP established by the EIB. The New Mexico SIP and all revisions to it are subjectto review and approval by the EIB and the USEPA. The USEPA's regulations (40 CFR 51.112) require each state to demonstrate that its SIP contains legally enforceable provisions adequate to attain and maintain ambient air quality standards. Cotton gin regulations in otherparts ofthe country include a combination oftechnical equipment specifications and pre-construction pennittingrequirements to ensure that the gins will not cause the exceedance ofNAAQS. Manyjurisdictions have adopted regulations describing the minimum controls that apply to gins. Suchrequirements are included in the air quality permits issued to gins in that area. In addition to the equipmentrequirements, however, pennitting regulations in other states also include mearis to address impacts to ambient air quality standards. Air quality programs mayrequire the perfonnance ofair quality dispersion modeling on apennit-bypennitbasis or, more commonly, have perfonned such modeling in the development of pennit regulations, to assure that ambient standards will be protected. An exception occurs in areas where the ambient standards have alreadybeen exceeded ("nonattainment areas"); in those areas, due to the high concentrations ofpollutants already presentin the area, air quality modeling cannot show maintenance with ambient air quality standards. Instead, permitregulations require that new emissions be offsetby a local reduction in emissions, resulting in a net decrease in the area's airpollution
Testimony ofLanyWeaver 2

### emissions. InNew Mexico, suchrequirements are codified at 20.2.79 NMAC PermitsNonattainment areas. The EIB is delegatedrulemaking authority underthe New Mexico Air Quality Control Act [NMSA, 1978 §§74-2-1 et seq.]. TheNew Mexico Air Quality Control Act ("AQCA") is also an element ofNew Mexico's SIP; as aresult, the amendments to the AQCA are arevision to the SIP. A copy ofthe amended AQCA is attached as Exhibit 3. Consistent with the federal Clean AirAct, Section 74-2-5.B ofthe AQCA states that "The environmental improvementboard
... shall: 

### (l) adopt, promulgate, publish, amend and repeal regulations consistentwith the Air Quality Control Act.
.. to attain and maintain national ambient air quality standards andprevent or abate airpollution
..." The regulations that currently governthe permittingprocess for cotton gins are codified in 20.2.72 NMAC

- Construction Permits ("Part 2.72"), which is also an element ofthe New Mexico SIP. Part 2.72 prohibits the construction ormodification ofairpollution sources without apermit. To obtain apermit orrevise an existingpermit, a source must show that emissions from the facility will not violate ambient air quality standards. Part 2.72 generallyrequires thatthis showingbe made with air dispersion modeling. Ifthe owner or operator ofa facility cannot show that the ambientimpacts ofthe facility's emissions will not exceed air quality standards, then the department cannot issuethat facility an air qualitypermit. The regulationbeingproposed was developed in response to amendments last yearto the Air Quality Control Act. The 2003 amendment to Section 74-2-7(C) and the addition of anew Section (0) 

### to the AQCAprovide for an alternativeprocess for issuingpermits, to cotton gins emitting 50 tons per year orless ofapollutant subjectto ambient air quality standards, by altering the grounds on which the Environment Departmentmay deny a pelmit for such facilities. Specifically, the revised AQCA states thatthe Environment Departmentmay not deny an application for a constructionpermit ifthe applicant proposes "use ofthebest system ofemissions reduction currentlyin use by cotton gins in the United States, as specifiedbyregulation ofthe environmental improvementboard." The statute amendments also describe by example the minimumrequired effectiveness of such a system.
3. The Regulatory Development Process for This Regulation Theproposed regulation was developed with input from aworking group thatincluded the Department, the National Cotton Council ofAmerica, and the U.S. Department of Agriculture Cotton Ginning Laboratoryin Las Cruces. This group began meeting in May of2003 to discuss the elements ofaproposed regulation. To provide further scientific background to resolve issues around the ambient air impacts ofcotton gins,'an air quality monitoring study was conducted. The study received material support from the Department, Mesa Farmer's cotton gin, and a grant from USEPA. See Exhibit 4 for detailed informationregarding this study.

Testimony ofLany Weaver 3

### On July 28, 2004, the Departmentmailed (surface mail oremail) apackage of information abouttheregulation to all persons we had reason to believe couldbe interested in this regulation. The listincludedthe working group members, all ginners in the state, public interest groups, anyone onrecord as having submitted a complaint about a gin, members ofthepublic thathave shown a general interest in air qualityregulations, and USEPA.
4. Description ofProposed Regulation 20.2.66 NMAC

- Cotton Gins Proposed 20.2.66 NMAC

- Cotton Gins, ifadopted by the New Mexico Environmental Improvement Board, would be anew Part (regulation) in Title 20, Chapter2 oftheNew Mexico Administrative Code (NMAC). In this document it is referred to as 'Part 2.66'. Part 2.66 provides an alternative process for cotton gins emitting less than 50 tons per year ofpollutants subject to ambient air quality standards to apply for air quality construction permits under.Part 2.72. The owners and operators may still continue to apply undertheusual air qualitypermitprocess without invoking Part 2.66. Ifthey do invoke Part 2.66 in theirpermit application (see Section 201 ofPart 2.66), theywill not be required to perform a dispersionmodeling analysis ofthe air quality impacts oftheir emissions. However, in doing so they acceptthe requirements ofPart 2.66. Table 1 includes a description ofeachparagraph ofthe revised proposedregulation and the source oftherequirement. Part 2.66 includes permit application requirements, gin control equipmentrequirements, opacity limitations, requirements for a fugitive dust managementplan, and aminimum setback distance from the gin to the property line. The provisions ofthe proposedregulation stem from the Air Quality Control Act, the air qualitymonitoring studymentioned above, and the formatting and contentrequirements that apply to all NMAC regulations. Exhibit 1 is theproposedregulation as it was available during the public commentperiod. Exhibit 2 is the Department's revised proposed regulation, with changes from Exhibit 1 noted in strike-out-and-underline format. The revisions to the regulationreflect subsequentresults from the air quality monitoring study and feedback from the State Records Centerregarding regulatory formatting. The proposed regulation would enable cotton gins to receive permits without demonstrating that they will meet ambient airquality standards. However, the monitoring studyperformed bythe Department indicates that the technical equipmentrequirements alone are not sufficient in all cases to preventthe exceedance ofair quality standards. Because the specification ofsuch standards alone will not satisfy the state's duty to ensure that its SIP ensures the attainment and maintenance ofNAAQS and NMAAQS, the Departmentis also proposing the inclusion ofminimum setback distances from the gin to the propertyboundary. Consensus with otherinterestedparties has notbeenreached on the inclusion ofsetback distances. At least one commenterhas stated that, based solely on the amendments to the Air Quality Control Act, the regulation should be limited to describing proper gin emissions
Testimony ofLanyWeaver 4

### controls and managementpractices, andthat the setbackdistanceprovisions proposedin Exhibit 1 to address ambient standards are inappropriate. However, the Departmentbelieves that the adoption ofaregulation that would allow a cotton gin to cause an exceedance of health-based ainbient air quality standards would violate the state's dutyunderthe EPA's regulations for SIPs and the EIB's dutyunderthe AQCA to ensure the attainment and maintenance ofair quality standards.
5. The Development ofSetbackDistances The standard practice for predicting the ambient airimpacts from emission ofair pollutants is byuse ofcomputer-based dispersion modeling conducted atthe time of permitissuance, basedupon informationpresented inthepermit application. The USEPA recommends (under40 CFR 51 Appendix W) the use ofthe computermodel ISCST3 to determine suchimpacts. The ISCST3 model, however, may significantly over-predict the dispersion ofemissions from cotton gins. The ISCST3 model was developed and evaluated with data from tall power plant stacks, which have significantly different stackparameters than cotton gins. For example, a powerplant stack emits ahigh volume ofvaried pollutants at ahigh temperature andhigh velocity. Cotton ginning operations emitparticulatematter from small diameter cyclone stacks that are 18-30 feet in heightwith relatively low stackvelocity and temperatures only slightly above ambient. Dispersion modeling for cotton gin facilities in New Mexico using ISCST3 predicts ambient airimpacts that exceed the 24-hourNational AmbientAir Quality Standard for PMlO (the annual PMlO standard and the PM 2.5 standards are not atissue). However, at leasttwo short-term studies have demonstrated that ISCST3 over-predicts the 24-hour PMlO concentrations from cotton gins. Appendix W ofthe federal rule40 CFR 51 allows for the use ofarobust monitoring studyin lieu ofamodeling analysis where there is no applicable model. The Environment Departmentdeveloped aplan for arobustmonitoring study for the 2003 ginning season atMesa Farmers Cotton Gin to determine concentrations ofPMlO associated with a large ginning facility. The studyplan was reviewedbythe Environmental Protection Agency for adequacyto determine maximum concentrations from cotton gins for comparisonwith federal and state ambient air quality standards. The Environmental Protection Agencyprovided grant funding for theproject and Mesa Farmers Cotton Gin and the U.S. Department ofAgriculture Cotton Ginning Laboratory in Las Cruces provided supportto the study. The studywas conducted at the Mesa Farmers Cotton Gin in Las Cruces, New Mexico, from September2003 through January 2004, which coveredthe entire cotton-ginning season. Exhibit 4 is the Air QualityMonitoring Study Report. The setback distances in Part 2.66 are basedupon the results ofthis monitoring study. The evaluation ofthe datahas included extrapolationbyuse ofdispersion modeling.
Testimony ofLanyWeaver 5

### 6. Comparison to Cotton Gin Requirements in OtherJurisdictions Part2.66 requires the use ofcontrol equipment similarto that listed in Section 74-2-7(0) ofthe Air Quality Control Act for exhaust air from the gin, requires effective managementpractices to control fugitive dust from thebuilding and gin yard, limits the opacity ofemissions, and sets minimum setback distances between the gin and property line. Some areas in the United States have more stringent equipment and fugitive dust control requirements for cotton gins. For example, the San Joaquin ValleyUnified Air Pollution Control District in central California, Maricopa County in Arizona, and the state ofNorth Carolina each have orhaveproposed the use ofcyclones on all emissions points, including the low pressure exhausts. In addition, the San Joaquin program requires use of only the most efficient cyclones. Such equipment controls are more stringentthan those required under Part 2.66. The North Carolina and Oklahomarules have requirements for control offugitive dust similarto those proposed in Part 2.66. The Department is proposing emissions controls typical ofthose for gins across the country. While somejurisdictions apply more stringent controls, the Environment Departmentbelieves that the proposed combination ofcontrol equipment, fugitive dust managementplan and setback distances strikes thebestbalance between stringency and flexibility while continuing to maintain ambient air quality standards. Establishing setback distances based on a facility's allowable emissions (pounds perhour ofPMl0) ratherthan production rate (bales ofcottonperhour) provides an incentive for gins to use more stringentcontrols (fewerpounds ofemissions perbale ofcottonproduced). As discussed previously, all state and localjurisdictions are required to address the air quality impacts offacilities as part oftheir SIPs. While otherjurisdictions have not included setback distances in their cotton gin control regulations, thosejurisdictions have implemented their controls in the context ofair qualitypermitprograms, which may include requirements for airmodeling or othermeasures to address ambient air impacts ofemissions. The cotton gin regulations in Oklahoma, for example, include equipment and fugitive dustrequirements similarto those proposed here. To address the potential that the specified equipment will nevertheless notbe sufficientto attain and maintain NAAQS, the Oklahomaregulations contain the additional requirement that emissions from the cotton gin will not cause an exceedance ofNAAQS, and they give the regulatory agencythe authority to require airmodeling to ensure the standards are satisfied. 7. Conclusion The amended section 74-2-7(0) ofthe AQCA anticipates that the alternative process for pennitting cotton gins will includeminimum equipmentrequirements, but it does not limitthe process orthe regulation to including only those minimum equipment
Testimony ofLanyWeaver 

### 6

### requirements. The amendmentprovides thatthe process will be established by the EIB byregulation. This implicitly acknowledges thebroader scope ofthe authority and duties ofthe EIB (i.e., the duty to ensure thatits regulations attain and maintain air quality standards) when it promulgates regulations. lfthe implementingregulation only includes the minimum equipmentrequirements outlined in Section 74-2-7(0), the Department will notbe able to address the impacts ofemissions as part ofthe permitprocess. Thus, the alternative process mustinclude the specification ofminimum equipmentrequirements, but the completeregulation thatis finally adopted must also satisfy the other requirements that apply to the BIB's rulemaking authority. The regulation as proposed in Exhibit 2 wouldmeet the requirements to establish the 'Best System ofEmissions Reduction' for cotton gin facilities. For cotton gins that comply with the minimum equipment requirements but still pose thepotential to cause the exceedance ofair quality ambient standards, additional protections are required. The setback distances proposedbythe Department assure thathealth-based state and national ambient air quality standards will be maintained.

Testimony ofLanyWeaver 7

### Table 1 - Summary ofPart 2.66 [20.2.66 NMAC] Regulatory Description Source ofRequirement Cite 20.2.66. 1 

### Issuing agency is Enviromnental Improvement Board Standard NMAC language 2 Scope ofregulation. Note that this is the scope ofwho can invoke Part 2.66; the Standard NMAC language requirements ofthe regulation do not apply unless the applicant invokes it. 3 Statutory authOlityby which the EIB may issue the regulation. Standard NMAC language 4 The duration ofthe regulation is permanent. Standard NMAC language 5 The effective date ofthe regulation, here noted as MO-DY-YR, is typically about Standard NMAC language 30 days afterthe approved rule is filed with the State Records Center. At the time offiling, each OCCUlTence ofthe telm "MO-DY-YR" in the regulation will be replaced bythe actual effective date ofthe regulation. 6 The objective ofthe regulation is to implementthe amended Air Quality Control Standard NMAC language, and Act. The regulation specifies thebest system ofemissions reduction for cotton AQCA Section 74-2-7(0) gins under Section 74-2-7(0) ofthe Air Quality Control Act, and assures that ambient air quality standards are maintained under Section 74-2-5 ofthat Act and under the federal Clean AirAct. 7.A Definition of'bale'. Standard definition for this tenn. 7.B Definition of'Class I Area'. Class I areas include National Wilderness Areas and Standard definition for this tenn. National Memorial Parks which exceed 5,000 acres in size, and National Parks which exceed 6,000 acres in size. 7.C Definition of'cotton ginning facility' or 'facility'. This definition includes a Standard definition for this tenn, typical description ofa ginning facility, the SIC code andNAISC code for cotton and AQCA Section 74-2-7(0). gins, and an exclusion ofgins thathave the potential to emitmore than 50 tons per year ofany NAAQS. This exclusion is based on AQCA Section 74-2-7(0). 7.D Definition of'Department' as NMED. Standard definition for this tenn. 7.E Definition of'fugitive emissions'. Standard definition for this term. 7.F Definition of'high efficiency cyclone dust collector'. Standard definition for this tenn.

### 7.0 Definition of'high pressure exhausts'. Typical definition for this tenn. 7.H Definition of'low pressure exhausts'. Typical definition for this tenn. 7.1 Definition of'non-attainment area'. The department is proposing to remove the Standard definition for this tenn. sentence "Currentnon-attainment areas in New Mexico are Anthony and Sunland Parkin DonaAna County." The sentence is not necessary and maybecome inaccurate overtime as areas are redesignated. 7.J Definition of'opacity'. Standard definition for this tenn. 7.K Definition of'owner or operator'. Standard definition for this tenn. 7.L Definition of'Part 2.72'. Standard definition for this tenn.

8 This section is reserved for notation ofthe regulations that Part 2.66 amends and StandardNMAC language supersedes. There are no regulations amended or superseded

### by this Part. 

### 9 Notation ofwhere the documents cited in this Partmay be viewed. Standard NMAC language 10-199 Reserved sections. StandardNMAC practice

200 In keeping with AQCA Section 74-2-7(0), this section states thatthe department AQCA Section 74-2-7(0) cannot deny issuance orrevision ofan air quality constructionpennitto any cotton ginthatmeets the requirements ofthis Part. 201.A Pennit applications mustinclude everything required under Part 2.72, with the AQCA Section 74-2-7(0) exception ofa demonstration that the facility will meet ambient air quality standards. That demonstration is being made with the development ofthis Part. 201.B The permit applicantmustinvoke this Partin orderto make it applicable. AQCA Section 74-2-7(0) 201.C In orderto meetthe requirementunder AQCA Section 74-2-7(0) that the gin AQCA Section 74-2-7(0) emitno more than 50 tons per year, this section requires the applicantto propose limitations that wil1limit emissions to no more than that amount. These limitations will be included in the issued pennit. The departmentis proposing clarifying language to this section. 201.D As requiredby AQCA Section 74-2-7(0), the applicationmust also include the AQCA Section 74-2-7(0) 'best system ofemissions reduction' for the facility. Under Part 2.66, this includes at aminimum the controls, limitations, plans and practices set out in Section 202 ofthis Part. 202 Section 202 includes the pennitrequirements. Eachpermitmustinclude the best AQCA Section 74-2-5 (C)(5)

### system ofemissions reductions, as listed in 202.A through 202.0, as well as other and Sections 74-2-7 (B)(l), (D), conditions as required to ensure the enforceability ofthe permit. Such conditions and (0) include, but are not limited to, recordkeeping, monitoring, reporting requirements, and test methods. 202.A The limitations in the application are included in the pennit, although the AQCA Section 74-2-7(0) and department may modify them. standard pennitpractice. 202.B The emissions controls onhigh-pressure exhausts are the same as that refelTed to AQCA Section 74-2-7(0), in the amendments to the AQCA. A limitation of20% opacityhas been added, common practice which is typical ofopacity limitations imposedby other states (for example, Oklahoma). 202.C The emissions controls on low-pressure exhausts are also the same as that AQCA Section 74-2-7(0), refelTed to in the amendments to the AQCA. A limitation of20% opacity has commonpractice been added, which is typical ofopacity limitations imposedby other states. 202.D The permit will include the fugitive dustmanagementplanproposed in the Common pennitpractice application. This section lists the minimumrequirements for such aplan. The elements listed are typical ofconstruction permits and similarto requirements imposedby the Oklahoma and North Carolinaprograms. 202.E A lesser source ofemissions from cotton ginning facilities is fuel-burning Standardpelmitpractice, 20.2.61 equipment. This section includes standard limitations for such equipment, NMAC including an opacitylimitation from Pati 2.61. 202.F Location restrictions apply to the minimum distance from the center ofthe cotton Clean Air Act and AQCA gin to specific things. The minimum distance to the propeliyboundaryis the Sections 74-2-5(A) and (B). greater ofthe distances set out in paragraphs (1) and (2). See the Cotton Oin Paragraphs (1) and (2), Cotton StudyRepOli (Exhibit 4). Paragraph (3) sets minimum distances to state parks, Gin Study. Paragraph (3), recreation areas, schools, and Class I areas (such as national parks). standard permitpractice. 202.0 All equipmentmustbe installed and maintained such that the pelmit conditions Standard permitpractice are met, and the operatormust visually inspect the equipment daily and maintain records ofsuch inspections.

### Air QualityMonitoring Study 

### Report for Cotton Gins New Mexico EnvironmentDepartment September29, 2004 Summary This studywas developedto gathermonitoring datafrom four locations surrounding a large cotton gin facility inNew Mexico during the 2003 ginning season. The regulatory dispersion model, ISCST3, appears to significantly over-predict short-termimpacts from cotton ginning facilities. The monitoring datawas utilizedto characterize the model's over-prediction (see Figure 6), andto evaluate for cotton gins the minimum distance from gin to property line ("setback") requiredto assure maintenance ofstate andnational ambient airquality standards. Figure 8 illustrates the proposed setbackdistances as a function ofallowable gin emissions. Background This studywas conductedinthe contextofdevelopment ofanew regulation, 20.2.66NMAC

- Cotton Gins, which was developed inresponse to amendments to theNew Mexico Air Quality Control Act. Boththe regulation andthe amendments to the statute are elements ofarevisionto theNewMexico State ImplementationPlan, which must also include a demonstration of adequacyto protectNational andNewMexico AmbientAir Quality Standards (NAAQS and NMAAQS, respectively). As aresult, a specific goal ofthis studywas to determine how nearto thepropertyboundary a cotton gin couldbe locatedwithout creating exceedances oftheNAAQS andNMAAQS on neighboringproperties. The standardpractice forpredicting the ambient 

### airimpacts from emission of

### airpollutants is by use ofcomputer-baseddispersion modeling. There is no existing 

### airqualitymodel thatwas developed specificallyto estimate the concentrations ofPMl0 (the NAAQS ofconcern) and TSP (theNMAAQS ofconcern) thatresult fromparticulate emissions atcotton ginning facilities. In 

### the absence ofa specific model forthese operations, the U. S. Environmental ProtectionAgency (USEPA) recommends (under40 CFR 51 Appendix

### W) the use ofISCST3 to predictimpacts from these facilities. The ISCST3 model was developed and evaluatedwith datafrom tallpowerplant stacks, which have significantly different stackparameters than cotton gins. Forexample, apowerplant stack emits ahigh volume ofvariedpollutants at ahightemperature andhighvelocity. Cotton ginning operations emitparticulate matterfrom small diametercyclone stacks that are 18-30 feet in heightwithrelatively low stackvelocity andtemperatures only slightly above ambient. At least two short-term studies have demonstratedthatthe ISCST3 model over-predicts the monitored 24-hourPMIO concentrations from cotton gins (Zwicke, 1998; Fritz, et aI, 2002). Additionally, data onparticle size distribution and depositionvelocities ofcotton gin particulate emissions that mightbe usedin ISCST3 to furtherrefine the modeling analysis are not generally available. Dispersion modeling for cotton gin facilities inNew Mexico using ISCST3 predicts ambient air impacts that exceedthe NM 24-hourTSP standard andthe 24-hourNational AmbientAir
September29, 2004 1

### Quality StandardforPM10. Since ginning only occurs a few months eachyear, dispersion models predictcompliance with ambient standards based on annual averages. Due to the expected size distribution ofparticulate matterin agricultural emissions, it is generally assumed thatifthe PMlO standardis met at a cotton gin the PM2.5 standardwillbe easilymet. Appendix W of40 CFR 51 allows forthe use ofa robustmonitoring study in lieu ofamodeling analysis. The New Mexico EnvironmentDepartment (NMED) developed aplanfor arobust monitoring study forthe 2003 ginning season atMesaFarmers Cotton Gin to monitor actual PMlO ambient impacts resulting from emissions at a cotton ginning facility. Theplanwas reviewedbythe USEPA for adequacy to determine maximum concentrations from cotton gins for comparisonwith federal and state ambient airquality standards. The USEPA provided grant funding fortheproject andMesaFarmers Cotton 

### Gin and the U. S. DepartmentofAgriculture Cotton Ginning Laboratory inLas Crucesprovided supportto the study. StudyDesign The studywas conducted atthe MesaFarmers Cooperative, Inc. cotton gin from September2003 through January 2004, which coveredthe entire cotton-ginning season. MesaFarmers is the largest cotton gin inNew Mexico, andproducedup to 19 bales ofcottonperhourduring the studyperiod. The gin is located south ofLas Cruces (New Mexico) in an agricultural area, with a feedlot on its northboundary and a dairy on its westboundary. A frontage roadparallelto nearby Interstatehighway 25 runs along the eastboundary ofthe property. Partially vegetated desertlandlies to the south ofthe ginproperty. (See Figure 1-Map ofMesaFarmers Study Area.) During the study, Federal Reference Method (FRM) PM10(Wedding) monitors were placedto the north, south, west, and eastofthe gin (see Figure 1) to gatherparticulate concentration data in accordance with the FRM. These FRM monitors collectparticulate matterovera 24-hour periodevery thirdday. Two continuous PM10 monitors (calledTEOMs) were collocatedwith the (east and south) Wedding monitors to characterize variations ofparticulate concentrations throughoutthe day. These TEOMmonitors providehourlyparticulate matterconcentrations. A meteorologicalmeasurement station (2-meterwind sensorand datalogger) was collocatedwith the southern monitors. All monitors andthe met stationwere installed, calibrated and operated byNMED monitoring specialists, and filters were analyzedbythe New Mexico Departmentof Health ScientificLaboratory Division, using EPA-certifiedFederal Reference Method (FRM) PMlO samplers in accordance withNMED's EPA-approvedAmbientMonitoring Standardof Operation (SOP) and QualityAssurance ProjectPlan (QAPP). TheWedding monitors are the EPAreference methodfor determining compliance withNational AmbientAir Quality Standards. All monitors operatedbythe department (Wedding and TEOM) measuredPMlO. Although there is aNAAQS for PM2.5, due to the expected size distribution of particulatematter(less than 2% ofPM10 emissions), itwas assumedthatwhenthe PMlO standardis met, the PM2.5 standardwill be easilymet.

September29, 2004 

### 2

### The monitoring networkwas designedto ensure thatthis studywould gatherdata regarding the points ofpredictedmaximumconcentration. Sincethe gin is notlocatedin complex terrain and all the stacks are relatively similarinparameters, NMED assumedthat four monitorlocations wouldprovide adequate data. Because ofthe low stacktemperatures andheights, plumes from these sources do nothave greatbuoyancy and itwas also logical to assume thatmaximum impacts will occurvery neartheplant. This eliminatedthe need for any monitoring at distant sites. This assumption is supportedbyprevious dispersionmodeling using ISCST3 that predictedthatmaximum concentrations ofPM10would occuralong theplantpropertyboundary, particularly atthe southernpropertyboundarywhen the 24-hourperiodincludes very stable meteorological conditions with lightwinds outofthe north (typically atnight). The PMIO samples (24-hour, from midnightto midnight) were obtained atWedding monitors on a one in everythird day schedule from October21,2003 through the end ofJanuary 2004. Sampling dates were consistentwith standardEPA dates onwhich l-in-3-day samples are taken. The TEOMs measuredPM10 continuously on a dailybasis for the entire studyperiod. The schedule included almostthe entire ginning season atMesaFarmers. The duration ofthe study provided data regarding the impact ofthe cotton gin under a wide variation ofmeteorological conditions. However, the elevatedconcentrations ofPM10measured during high-wind events that occurredin the regionwere viewedwith caution. The cotton gin, MesaFarmers, providedelectrical service at eachmonitoring site. MesaFarmers also performeddust suppression activities (wateringtruck) andmaintained a daily (midnightto midnight) log ofthroughput.
Observations Monitoring staffnotedthatthey saw frequent watering ofMesaFarmers access roads and lots, resulting in low fugitive emissions from the facility grounds. Staffalso notedthatthey sawvery little, ifany, visible particulate emissions from the gin's vents. Monitoring staffalso reportedthe presence oftwo significant sources offugitive particulate matter; the well traveled dirt

### roadrunning along the western edge ofthe ginproperty (atthe dairy) andthe feedlot to the north ofthe gin. Forexample, theyreported seeing a UPS driver wearing a dustmaskwhile driving down the dairy's access road, andnotedthe wisdom ofthis due to the dustiness ofthatroad. These observations are consistentwith the resulting monitoring data. On days during whichthe windwas still (the highesthourly average wind speedwas less than 2 meters/sec), the Wedding monitors measured an average ofabout 25 and27 ug/m3 atthe southern andeasternmonitors, respectively, about 55 ug/m3 atthe northern monitor (nearthe feedlot), and 86 ug/m3 atthe westernmonitor (nearthe dairy andunpavedroad) (see Figure 2- Concentrations onLowWindDays). Concentrations measured atthe monitornearthe unpaved roadwere consistentlyhigherthanthose measured elsewhere. Winds blew from all directions, with the highestwinds generally coming from the east and northwest (see Figure 3 - Wind speedvs. WindDirection). Thehighestparticulate readings occurred during the highestwinds; this correlation indicates that fugitive dust (which increases
September29, 2004 

### 3

### withwind speed) may overpowerimpacts from gin emissions (which are predictedto decrease with greaterdispersion from higherwinds). TEaM monitors measured significantlyhigher(by a factor ofabout 2) readings than their collocatedWedding monitors (see Figure4

- Wedding Datavs. TEaM Data). As aresult, during analysis NMED comparedTEaM datato TEOM data, andWedding datato Wedding data. Modeledpredictions ofconcentrations were consistentlyhigherthan observedconcentrations. See Figure 6 - Comparison ofPredictedConcentrationDownwindfromthe FacilityPlus BackgroundConcentration (18 ug/m3) and MonitoredConcentration. On average, the model over-predicted observedPMIO concentrations by a factor of3. Gin emissions were calculatedusing records ofdaily production andPMIO emissions factors from AP-42. Facility contributions to ambient concentrations were calculatedby subtracting upwind from downwind concentrations. The facility contribution estimatedin this manner showeda relationship to wind speed. However, a direct comparison offacility contributionto gin emissions didnotreveal anyrelationship betweenthem. It 

### appearedthatthe interference fromneighborhood emissions wouldnot allow this straightforwardmethod ofevaluationto be effective. Furtheranalysis was necessary.
FurtherAnalysis ofStudy Data A further analysis ofthe datawas conductedusing dispersion modelingto compare the modeled andmonitored concentrations atthe locations ofthe fourmonitors. This section summarizes the process ofanalysis; the following section includes a detailedmodeler's report ofthe analysis. In orderto estimate the ambient concentrations thatcouldbe anticipatedfrom cotton gins based onthe data collected during this study, NMED has made the following assumptions:
• The impacts ofgin emissions atthose receptorpoints representedbythe monitors are not greaterthan the concentrations observed atthose monitors, and are likelyto be smaller due to backgroundcontributions.
• While the magnitude ofpredictedconcentrations using dispersion models is not supportedby observedconcentrations, models may stillbe effective inpredicting the profile ofemissions concentrations over a given area.
• Datacollected during days with highwind events is notrepresentative ofnormal conditions.
• The east and south monitors, being generally more downwind ofthe gin and further from interference from neighborhood emissions, are morerepresentative ofgin impacts. Only datafrom these monitors were usedin this further analysis.
• The highest average concentration observed atthe south and eastmonitors, during days when the ginwas not operating, are representative ofbackground concentrations. These average concentrations were 14.6 for the southmonitor and 18 for the eastmonitor. A backgroundconcentration of18 ug/m3 was usedin this analysis.

September29, 2004 4

### • The AP-42 emissions factor of1.2pounds/hourofPM10 perbalebale/hourproduction is representative ofMesaFarmers in its current configuration. The process ofanalyzing the data and determining the required setbackfor the regulation was as follows:
• Fourdays ofworst-case meteorological conditions were selected from the studyperiod where wind speeds were relatively low, whichresults in higherconcentrations of particulate matterdue to less dispersion ofemissions fromthe gin. On these four days, thepredominantwind directionwas fromthe west.
• The modeled concentrations were determinedfor each dayusing actual emissionrates from the ginning facility and on-site meteorological dataforthe day. A background concentration (see above) was addedto the predictedconcentration atthe receptorpoint representing the downwindmonitor. This sumwas comparedwiththe observed concentration. Onthese four days, the predictedconcentrations for the eastmonitor (downwindfrom the gin) are higherthan the actual concentrations by a factor of2 up to a factor of7. Note thatthepredicted and observedconcentrations to this point areboth based onthe productionlevel (gin emissions) presentduring that day. • A mathematicalrelationship between downwind distance andthe predictedmaximum concentrationforthat distance (in any direction) was determined. Predictedmaximum concentrations were utilizedto find an optimized equationthatwould ensure a conservative modeling analysis. This mathematicalrelationship is illustratedin Figure 7, andprovides aprofile ofhow concentrations vary overdistance fromthe gin.
• To determine the setbackrequiredforvarious sizes ofgins in the state, arange of differentPMlO emissionrates were modeledfor each ofthe four worst-case meteorology days. The predictedconcentrations for each distance andproduction level for each day were adjusted downward suchthatthe predicted (includingbackground) concentration at the distance from the gin 

### to the monitorfor that day's production level was the same as the actual concentrationmeasured onthat day. This profile is referredto as the 'hypothetical concentration'.
• Foreachproductionlevel, the distance atwhich the hypothetical concentration equals 150 ug/m3 was calculated. A relationship betweenthe emissionrate and distance to maximumconcentration was usedto determine setbackdistances forvarious sizes of cotton gin facilities. This was consideredto be the minimum distance from gin 

### to property line ("setback") requiredto assure maintenance oftheNational AmbientAir Quality StandardforPMIO.

• TheNewMexico State ImplementationPlan includes a state ambient 

### airquality standard of150 ug/m3 fortotal suspendedparticulates (TSP). As aresult, this process was repeatedto determine the minimum setbackdistances requiredto maintainthe TSP ambient standard. Modeling methodology, Receptor grids, andMeteorological data The latestversion ofthe ISCST3-PRIME dispersion model was used for this analysis. The model was run inthe control pathwaythat specifies the use ofthe following options:
September29, 2004 5

### • Stack-tip downwash
• Gradualplume rise due tobuilding downwash
• Buoyancyinduced dispersion
• Defaultwind speedprofile categories
• Defaultvertical potentialtemperature gradients

• No pollutant decay Flatterrainwas incorporatedinto the modeling analysis. In accordance with the Auerlanduse classificationmethodology describedin the EPA Guideline onAirQualityModels (GAQM), rural dispersion coefficients were implementedin the modeling analysis because landuse within the areacircumscribedby athree kmradius aroundthe facility is greaterthan 50percentrural. A building downwash analysis using the latestversion ofBPIP-PRIME was conducted and incorporatedinto the modeling analysis to account forpotential eflluent downwash due to the mainbuilding and storagebuilding. A Cartesianreceptorgridwas usedin the analysis. Fourreceptors collocatedwiththe monitors were modeledfor a simple comparison ofconcentrations predictedbymodel andthose observed at fourWedding monitors. Fordetermination ofthe required setback distance, a 25-meter spacing for a very fine gridresolutionwas extended outto I-kmfrom the facility in each direction. A 50-meter spacing for a fine gridresolutionwas extended outto 2-kmfrom the facility in each direction. Forintermediate andrough gridresolutions, ISO-meter spacing and 300-meterspacing were extended outto 3.5-km and 5-kmfrom the facility, respectively. On-site surface meteorological data observedin 2003 was used forthe modeling analysis with daytime andnighttime mixing height ofIOOO-meterandneutral stability ("COO) for daytime and a stable ("F") condition fornighttime. Comparison ofthe predicted concentrations andthe monitored concentrations forthe facility at MesaFarmers Instead ofmodeling each day ofthe entire gin season, the twelve calmdays were selected from all ofthe days atthe facility onwhichthe Wedding monitors, met station and ginwere running. Each day ofthe selecteddays was modeledwith the actual emissionrate andmeteorological conditions ofthe day so thatthe modelwas run twelve times separately. Then the sumofthe predictedconcentrationplus arepresentative backgroundconcentration ofthe areawhere the facility is locatedwas comparedto the monitored concentration. Thereasonthatcalmdays were selectedis thatimpacts are greater due to less dispersion. In addition, the dispersion from neighboring fugitive emission sources is possiblylesser onlow wind days resulting in a greater portion ofthe concentration coming from the facility. To determine the backgroundconcentration, all ofthe days (excludinghighwind event days) on which the Wedding monitors andmet station wererunning andthe ginwas notwere examined. The 24-hourPMI0 average concentrations were calculated for the eastandthe southmonitor. A statistical analysis showed average backgroundconcentrations of18.0 ug/m3 and 14.6 ug/m3 for the eastand southmonitors, respectively. The higherconcentration (18.0 ug/m3) was considered as the backgroundconcentration and addedto concentrations predictedbythe model for further September29, 2004 6

### analysis. The reason thatthe east andthe south monitorwere selectedfor determination ofthe background concentrations is thatthey were themonitors downwind ofthe gin on the days used for further analysis. These two monitors are more representative ofgin andbackground impacts andwere not as directly affectedbythe unpavedroad and dairy. According to Table 1, which compares the sum ofthe modelpredictions plus the background concentrationto the monitored concentrations, the model overpredictedby a factor of2 up to a factor of7 forthe eastmonitor andby a factor of2 for the southmonitorcomparedto the monitored concentrations on the 12 days selectedfor further analysis. On 

### the contrary, the concentrations for the west andnorth monitors are higherthan the predicted concentrations. It

### is likelythatthe neighboring sources ofthe unpavedroadtraffic on the west of the facility andthe dairy facility on the north ofthe facility (see the map ofMesaFarmers in Figure 1) significantly contributedto the concentrations atthese two locations. Figure 2 shows thatthe ambient concentrations on still days were greatestnearthe dirtroad (located adjacentto the westmonitor) andthe feedlot (locatednorth ofthe north monitor. The windrose plots in Figure 5 demonstrate thatthepredominantwind direction is towardthe east andthe wind sometimes blows towards the south. Over-predictions ofthe model occurred downwind ofthe gin, under-predictions ofthe model occurredupwind ofthe gin and downwind ofthe neighboring sources. Figure 5 also demonstrates the wind speeds ofthe selecteddays are relatively low to compare with an average wind speed of1.71 m/s and 1.01 m/s forthe month of November andDecember, respectively. Figure 6 shows comparison ofthe monitored concentrations downwind ofthe facility andthe sum ofthepredictedconcentrations plus the background concentration for the monitor's location. Methodologyto develop an equationto calculate the required setback distance for the facility at MesaFarmers Forthe further analysis to determine the required setback distance forthe facility, the four days ofNovember02 (over-predictedby a factor of1.5), November05 (over-predictedby a factor of 3), November23 (over-predictedby a factor of7) andDecember 17 (over-predictedby a factor of2.5) were selected due to a higher over-predictionrate than the otherdays. Allthe predicted concentrations were plotted against distance from the centerofthe facility to the corresponding receptors for each day ofthe four days separately. Figure 7A shows the example ofNovember 5. As shown inthe figure, the X-axis represents distance from the gin andY values are the concentrations predicted at allthe receptors modeled (in all directions from the gin). The highest Y datapoints were pickedfor each corresponding X value. Then a scatterplotwas usedto show a datatrend ofthe pickedhighestpredictedconcentrations andthe distances as shown in Figure 7B. To find an optimizedequationto describe the nonlinearcurvature ofthe datatrends, a number ofnonlinearequations were evaluatedto identifymathematical equations that would provide a reasonable fit. Table 2 summarizes the coefficients for the four equations andthe high R2

### values are indicative ofa strong relationship between the downwind distance and the predictedmaximum concentrations. The relationship was producedbythe method as follows:

September29, 2004 

### 7y

# =C1+C2*exP(~)+C4*exp(~) (1)
In 

### the resulting equations, Y indicates concentrationpredictedbythe model (ug/m3) andX indicates distance, andthe otherparameters ofC1, C2, C3, C4 and C5 are constants. Due to somewhatlimitedmonitoring data, itis difficultto understandwhetherthe difference between the predictedconcentration andthe actual (observed) concentrationtends to decrease orincrease overdownwind distance. To overcome this lackofdata, this study introduced a requisite assumptionthatthe model consistently over-predicts atthe same ratio C'r) across all distances. The ratio C'r) ofthe over-predictedconcentration andthe correspondingmonitored concentration downwind ofthe facility is in the following equation:

t 

### = over-predictedconcentrationdownwind (2) correspondingmonitoredconcentration

More specially, the concentrations predictedbythe model (taking into accountbackground concentration) are 1.5 times, 3 times, 7 times and 2.5 times higherthan the observed concentrations for the days ofNovember2, November 5, November23, andDecember 17, respectively. According to the conclusions ofseveral scientific studies thatcertain meteorological conditions are characteristic ofday in ayear, it is likelythatthe ratio (t) 

### varies depending on specific meteorological conditions. Thenit is possible to calculatehypothetical (corrected) concentrations ateach distance (receptor) from the ginbymultiplying eq (1) bythe correspondingratio (t) 

### for each day ofthe four days:

Using eq (3), minimum setback distances for each ofthe four days were calculated from the centerofthe facility to where the concentrationexceeds the 24-hourPM10national standard (150 ug/m3) for that day. The calculatedminimum setbackdistances are 46 meters for November2 and zero forthe days ofNovember5, November23 andDecember 17. Note thatthe setbackdistances were determinedwith the actual PM10 emissionrate calculatedfrom the gin's productionrate for each ofthe four days. The New Mexico State Implementation Planincludes a state ambient airquality standardof150 ug/m3 fortotal suspendedparticulates (TSP). To establishthe minimum setbackdistance needed formaintenance ofthe TSP standard, first the average ratio ofTSP and PM10 ambient concentrations in this areawere calculatedforthe months ofOctober, November andDecember. BothPM10 and TSP were measured atthenearbyAnthony Elementary School during 1988 and 1989 (see Table 3). TSP concentrations for this studywere calculatedbymultiplying the hypothetical PMlO concentrations calculatedusing eq (3) bythe average ratio ofTSP andPM10 September29, 2004 

### 8

### (which equals 1.32). Then setbackdistance for TSP was determinedfrom the centerofthe facility to where the concentration exceeds the 24-hourTSP standard (150 ug/m3) for the four days. The result ofthe setbackdistance analysis for TSP is similarto PMIO. The determined minimum setbackdistances (forthat day's emissionrate) are 78 meters forNovember 2 andzero forthe days ofNovember5, November 23 and December 17. Methodologyto determine setbackdistance required for different emissionrates Theproposedregulationwould apply to gins with emissionrates up to 50 tons peryear ofPMlO. Assuming a gin season of2 months and continuous production during thattime, this is the equivalentofapproximately 69 pounds perhour. Emissions from existing gins inNewMexico canrange from approximately 6 to 25 pounds perhour. In orderto allow for the entirerange of allowable emissions levels, calculations to determine setbackdistance for TSP andPMl0 were developedusing the same method as described above in orderto determine required setback distances as a function ofPM10 emissions rates. These distances, andthe equations that describe them, are shown 

### in Figure 8. Note that aminimum setbackdistance of10 feet has been added. The equation 

### in Figure 8, using emissions ofPMIO to calculate minimum setback distances forthe TSP ambient airquality standard, will be proposed 

### in the upcoming rulemaking (20.2.66 NMAC) for cotton gins. Note thatinboth equations (forPMIO and TSP) Y is 

### in units ofmeters; in the regulation, the outputwillbe 

### in feet. Unlike many otherpollutants, particulate matter settles out ofthe air overtime. The Department acknowledges thatusing 

### dryplume depletionparameters for PMIO and TSP could make a significantdifference atlargeremissions rates. However, thoseparameters (particle size distribution, mass mean diameter, mass fraction for each mass mean diameter, and specific density for cotton gin emissions) are not available to the Department atthis time.

12.9 38.82 14.3 18.04 13.7 28.66 18.3 18.54

Nov. 14,2003 Monitored Predicted

u 1m3 u 1m3 39.38

18 26.41 31.19 50.57 132.52 38.61 76.66 East 42.62 60.65 61.74 185 West 149.9 22.93 226.87 21.07 South 48.27 46.97 63.93 28.53 North 99.36 45.99 91.22 20.14 

### Table 1. 

### Comparison ofMonitored Concentrations and Predicted Concentrations Plus the Bac round Concentration 18 u m3

PM10 Nov. 02, 2003 Nov. 05, 2003 Monitoring Monitored Predicted Monitored Predicted

Station u 1m3 u 1m3 u 1m3 u 1m3

PM10 Monitoring

Station Nov. 20,2003 Monitored Predicted

u 1m3 u 1m3 Nov. 23,2003 Monitored Predicted



### u 1m3 

### u 1m3 Nov. 29,2003 Monitored Predicted

u 1m3 u 1m3 Dec. 02,2003 Monitored Predicted

u 1m3 u 1m3 East West South North 26.98 50.43 56.55 18 25.25 59.78 40.39 51.14 19.88 148.88 71.25 18 30.94 18 29.15 86.53 lowflow 20.45 77.98 18.21 lowflow 19.9

60.89 49.48 39.01 181.93 153.27 20.43 lowflow 21.94

63.42 28.34


### September29, 2004 

### 9PM10 Monitoring

Station

East West South North Dec. 11,2003 Monitored Predicted

u m3 u 1m3 lowflow 18 150.49 28.02 lowflow 18 lowflow 18 Dec. 23, 2003 Monitored Predicted

u 1m3 u 1m3 18.13 60.75 42.19 18 21.33 18 32.86 30.65



### ti dl diti fit Ii 

### th nlin T bl 2 C ffi· 

### t Ii 

### th

a e • oe Clen s or eno ear curve or e mo e pre C on equa on. Coefficient Nov. 2 Nov. 5 Nov. 23 Dec. 17 C1 29.755 45.16702 36.4715 33.95855 C2 290.11348 183.23132 189.19873 138.52465 C3 34.27753 927.70265 74.85404 78.45338 C4 113.14785 115.98416 126.19295 92.31255 C5 721.00558 195.4956 746.86279 660.32098 R2 0.996 0.998 0.998 0.959



### Table 3. Ratio ofTSP and PM10 Concentration (Monitoring Location: Anthony Elementary School) 1988 JAN FEB MAR APR MAY JUN JLY AUG SEP OCT NOV DEC Annual Avg. 1.62 1.58 1.38 1.78 1.81 1.17 3.03 0.69 1.07 1.25 1.49 Min Max 0.23 0.68 0.90 1.13 1.05 0.72 0.86 0.38 0.74 0.73 0.23 2.67 2.19 2.46 3.40 3.08 1.76 9.57 0.87 1.65 1.97 9.57 1989 JAN FEB MAR APR MAY JUN JLY AUG SEP OCT NOV DEC Annual Avg. 1.66 1.93 2.40 1.92 1.63 1.40 1.65 1.78 1.55 1.52 1.77 1.64 1.81 Min 1.00 1.34 0.90 1.48 0.34 1.02 0.97 1.26 1.20 1.45 1.29 0.99 0.34 Max 3.77 2.77 3.57 2.67 2.62 1.80 2.10 2.47 2.37 1.57 3.01 2.21 3.57



### September29, 2004 10

# Figure 1 - Map ofArea Surrounding Mesa Farmers Cotton Gin Facility

Legend

'. Air Quality Monitors
11 Mesa Farmer Boundary
11 Mesa Farmer Stack N

__

# ===- -=====:=:J -=======::J1 Meters 0 100 200 400 600 800 1,000 

# T _-=:::::::J ====::::J

__-=====::::JI Miles 

## o 0.05 0.1 0.2 0.3 0.4 0.5 

# @ Prepared by the NMED**~.** AQB on September 21,2004 by • . Heather Lancour. Contact: (505) 955-8075 or heatheUancour@nmenv.state.nm.us. Map title: Mesa Farmer 1A.mxd Projected in UTM Zone 13, NAD 27. Data sources: USGS topographic maps from the New Mexico Resource Geographic Information System. Mesa Farmer property boundary and monitor locations from AQB Modeling study. AQB monitoring sites based on GPS measurement. 11

### 140
120

C o 

### 100

..... 

### ..... .-.. C'" Q) 

### E u

__ C OJ 

# 8 80 "0 

### .8 

### "c o 0 

# § 60 Q)
..... OJ

..... co co Q> 

### 40
20 -.- East Wedding -e- West Wedding

"'" South Wedding 

### e -T- North Wedding

____________

# ~. e

T--- T T 

### e


# •

O-+----,..------r-----r---,....---,---..,.---
.....--..., 

## oto 

### 2 2to 3 3t04 4to 

### 6

September29,2004 Range of Highest Hourly Windspeeds (m/s)


### Figure 2. Concentrations on Low Wind Days

12

### 12

10 

# •



# --- 8 

# , (J) 

# ).


# -- E '-" "0 

# • Q) Q) 6

### .~ 0.. Cf) 

# ., "0 

# " 

# ., c 

# •• 

# -. 

# .. • 

# ' •• J 4 

# .. 

# ...

# "
..... • 

# .. ...

# . , ••



# • 

# . . • 

# .

# , • 2 

# • •• 

# .,
0 0 50 100 150 200 250 300 350 Wind Direction



### Figure 3. Wind Direction vs. Wind Speed

September 29, 2004 13e East y = 2.84195*x - 22.2326 R2 = 0.96



### 150 250 200 e



## •

100 South e. y = 1.84673*x - 4.413 R2 = 0.82 

### 50 700

600

500



# - '"E



# -- Cl 2- 400 CIl Q) :::J 

### ro 

### > 300 ::2: 0 WI200

100

0 0 Wedding Values (ug/m3)


### Figure 4 - Wedding vs TEOM Data for Co-located Monitors

September 29,2004 14Nov. 02, 2003 Nov. 05,2003 0 _<0.5m!s 0 _<0.5m!s 330 _0.5Io1m!s 12 330 30 _0.5Io1m!s 6 _1Io1.5m!s _1 10 1.5 m!s _1.5Io2m!s 8 _1.5Io2m!s 60 _2Io3m!s 300 .._---._---...., 60 _2Io3m!s 3
.._._.--- _3Io4m!s _3Io4m!s >- 4 >- /
... () () c c (J) 0 70 90 (J) 0 70 90 ::J ::J 0" 0" (J) u.. Lt 4 ".\ 

## -- 3 240 /" 120 8 6 12 210 150 180 180 HourlyAvg. WS (m/s)

### =1.14 HourlyAvg. WS (m1s)

### =1.33 SO 

### =0.78 SO 

### =0.96 Nov. 11,2003 Nov. 14,2003 0 _<0.5m!s 0 _<0.5m!s 12 330 30 _0.5Io1m!s 6 330 30 _0.5Io1m!s _1 10 1.5 m!s _1Io1.5m!s 9 _1.5Io2m!s _1.5Io2m!s 60 _2Io3m!s 300 60 _2Io3m!s 6 _3Io4m!s 3 

# i" _3Io4m!s

"

# .. t)' 3 >- c () (J) C ::J 0 70 90 (J) 0 70 90 0" ::J (J) 0" 3 u.. u.. 

# IJ**,~** 6 240 ..

# _--_

.. 3 240 9 12 6 210 150 180 180 HourlyAvg. WS (m/s)

### =1.27 Hourly Avg. WS (m1s)

### =0.67 SO

### =1.18 SO

### =0.49 

### Figure 5 (continued). Wind Speed and Direction Measured at On-Site Meteorological Monitoring Station.

September29,2004 15_<0.5m/s _0.5101 m/s _1 10 1.5m/s _1.5102m/s _2103m/s 90 _<0.5m/s

_0.5101 m/s _1101.5m/s _1.5102m/s 60 _2103m/s _3104m/s >4m/s

120 30 Noy. 23, 2003 o 330

180 HourlyAvg. WS (m/s) = 1.89 SO = 1.89 Dec. 02, 2003 0 9
6 3 >- () c Q) 0 70 90 ::l 0- 3 LL 6 9 180 Hourly Avg. WS (rnIs) = 0.53 SO = 0.78 9 6 300 3 >- () c 0 Q) 70 ::l 0- 3 LL 240 6 9

_<0.5m/s _0.5101 m/s _1101.5m/s

90 _<0.5m/s _0.5101m/s _1101.5m/s _1.5102m/s 60 _2103m/s

150 30 150

210 210

Noy. 29, 2003 o Noy. 20, 2003 o 330 30

180 HourlyAvg. WS (m/s) = 0.38 SO = 0.40 180 HourlyAvg. WS (m/s)

### =0.93 SO = 0.74 300 3 6

3

6 iJ' c Q) 0 70 ::l 0- Q) 

## u: 3 6

6 iJ' c 0 70 0- LL

Figure 5 (continued). Wind Speed and Direction Measured at On-Site Meteorological Monitoring Station.

September 29, 2004 16120 _<0.5m/s _0.5101m/s

90 Dec. 14, 2003 o

180 HourlyAvg. WS (mls)

### =0.03 SO

### =0.14 9 6

9 6 3 c 0 70 0- u.. 3 90 _<0.5m/s _0.5101 m/s

60

.

# "~-.-':,,'\~

# ,(~ ).(Dec. 11,2003 o 330 30

180 HourlyAvg. WS (mls)

### =0.07 SO

### =0.22 15 12 9 6 >. 3 () c Q) 0 70 ;:) 0- 3 u.. 6 9 240 12 15

3 c 0 70 0- 3 u.. 120 30

I ; ;

.-'**------~-** .-- Dec. 23, 2003 o _<0.5m/s _0.5101 m/s _1101.5m/s _1.5102m/s 60 _2103m/s

## ((~ 

# oo-,,,,,m,, 330

240 300 9 6

6 9 12

90 _<0.5m/s _0.5101m/s _1 10 1.5m/s Dec. 17, 2003 o

300 3

6 9 6

c 0 70 0- Q) It 3

180 HourlyAvg. WS (mls)

### =0.53 SO

### =0.81 9 180 HourlyAvg. WS (mls)

### =0.55 SO

### = 0.49 12 210 150



### Figure 5. Wind Speed and Direction Measured at On-Site Meteorological Monitoring Station.



### September29,2004 17200


# • • 180

.- 160 

### '"

### E M'-'" 

### C» 

# •

E :::l

-- co 140 Slope 

### = 0>
...... :::l

__ 

# -- c:: c:: 0 0 120 ;,:::; ;,:::; co L.. 

## ..... ..... c:: c:: Q) 

# • Q) u 100 u c:: c:: 0 0 () () 

# • "'C "0 80 Q) c:: t5 :::l 0 

## ::c L.. 0> Q) 60 

# •• 

# • L.. U 0- co a:l 

# • + 40 

# • 20

0 0 20 40 60 80 100 120 140 160 180 200 Monitored Concentration (ug/m3) 

### Figure 6. Comparison ofPredicted Concentration Downwind from the Facility Plus Background Concentration (18 ug/m3) 

### and Monitored Concentration.

September 29, 2004 18350 300

",- 250 E



# -- Cl 2- 200 c 0 :;:::> 150 C CI> U C 0 100 () 50 0 0 500 

### Nov. 05, 2003

1000 1500 2000 Distance (meter) 2500 3000

Model Prediction y = 45.16702+183.23132*exp(-x/927.70265)+115.98416*exp(-x/195.4956) R2 = 0.998



### 3000 2500 2000 1500 1000 500 350 300

",- 

### 250 E


# -- Cl 2- 

### 200 c 0 :;:::> 

### 150 C CI> U C 0 

### 100 () 

### 50 0 0 Distance (meter)


### Figure 7. 

### Scatter Plot ofthe Predicted Concentrations and Determination ofSetback Distance.
September29,2004 191200**,....---~-----:'---~---~--~~------:---""7"-:r**



### '& 1200 3000


### en CD 2400 Ef tll () 

## '" o
:::J 

### £ 3600

1800

· . · , · , PMlOSelbackEquatibn:

. 600 Y =-181.04195+7.98023 X+O.09845 X2**R2~O;998'** 

## , .. ............... TSPSetbackEquatidn: Y =-248.74457+16.48113 X+0.07271 X2 R2 =O.999· 1000

800 Q) Q) 

# .s Q) u c 600 

### 1Jl i5 U t1l .c 400 Q) 

### en
200



### o**+---r----,r---'1--""'T--~-T-__r----i---.---;-___,r______r-...,..___I** 0



### o 10 20 30 40 50 60 70 Emission Rate (Ib of PM1 O/hr) 

### Figure 8: Equation to Calculate Setback Distance for TSP and PMIO WithoutDry Plume Depletion.



### September29,2004 20

### UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 1445 ROSS AVENUE, SUITE 1200 DALLAS, TX 75202-2733 

# OCT 5 2004 ( 0
- 5 . 0 0 

### tf Ms. LanyWeaver NMED

- Air QualityBureau New Mexico EnvironmentDepartment P.O. Box 26110 SantaFe, NM 87502-6110 RE: Comments on Proposed Regulation New Mexico Administrative Code

- 20.2.66 l-rew Mexico Administrative Code (NMAC)

- Cotton Gins and Air QualityMonitoring StudyReport for Cotton Gins DearMs. Weaver: Thankyou for your letter dated July 28, 2004, in which yourequested comments on 20.2.66 NMAC

- Cotton Gins. The following comments shouldbe addressed: 1. Theproposedrule does notrequire an individual facility to perform a dispersion modeling analysis ofair quality impacts ifsuch facility complies with the control requirements, minimum setback distance and other conditions listed under the proposedrule. Therevisions to this rule are based on results from an airmonitoring study. The Air QualityMonitoring Study Report for Cotton Gins (monitoring study report) asserts that the approved dispersion models consistently overpredict impacts for cotton gins. Appendix W of40 Code ofFederal Regulations 51 allows the use ofmonitoring when othermodels are found to be inappropriate. The monitoring studyreport seeks to serve as the technicalbasis for demonstrating that certainprescribed cotton gin facilities are no longerrequired to perform dispersionmodeling analysis ofair quality impacts. Therefore, the monitoring studyreport must show that each and every cotton gin meeting the conditions contained in the rule and the report and thus getting apermitwill not cause or contribute to the violation orinterferewith the attainment ormaintenance ofany ambient air quality standards orincrement. 2. The State must submit the monitoring report as part ofthe State hnplementationPlan (SIP) revision and incorporate the report into the New Mexico SIP. 3. The rule should clarifythat it does not interfere with or supersede any existing Federal air qualityrequirements.

Internet Address (URL)
- http://www.epa.gov/earth1 r6/ Recycled/Recyclable
- Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer)

### 2 4. The rule does not give the Department any discretion to deny a permit. Part 51 ofthe Federalregulations requires the responsible agency to have a means to prevent issuance ofapermit ifit wouldresult in violation ofthe attainment ormaintenance ofthe National Ambient Air Quality Standard (NAAQS) orviolate applicableportions ofa control strategy. 

### 5. The Department shouldhave a provision that allows it to re-evaluate/modify "best system ofemissions reduction," controls, fugitive dust plans, setbacks, etc. ifdata shows violations ofair quality standards orinterference with other airprograms such as regional haze. 6. The monitoring report cites to various assumptions. The proposedrule and permits issued shouldhave conditions orrequirements that correlate to the assumptions made throughout the study. For example, landuse shouldbe limited to rural areas, and nearbyterrain shouldbe limited to flat terrain. 7. On pages 8 and 9, the studyreport says that aminimum setback distance between the gin andproperty line of46 meters for Particulate Matter nominally 10 microns and less and 73 meters for Total SuspendedParticulates were calculated using the hypothetical concentration of150 uglm3

. 

### Please explain ifthis hypothetical concentration has the assumedbackground included and how aproperty line concentrationthat is nearthe NAAQS of 150 uglm3

### can be protective ofthe NAAQS at all distances and locations beyond the property line when combinedwith otherpotential sources. 

### 8. Table 

### 1 on page 

### 9 ofthe study indicates thatthere were several instances where the monitored concentrationwas higher than the predicted concentration and was actually over 150 uglm3• 

### Please explain whythese are not considered to be exceeding the NAAQS. 

### 9. The proposedmle should ensure maintenance ofreconls and inspections are sufficient to demonstrate compliance withthe rule. I thankyou for the opportunity to comment, and I hope that this is helpful. Ifyou have any questions, please call me at (214) 665-7250 orDaronPage ofmy staffat (214) 665-7222. Sincerelyyours,

# J2;.!J~t**jDavidl~feigh** Chief AirPermits SectionKATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505\ 243-5018

- Fax (505) 243-3606 

## I 

# I I I I I 

# I I I I I 

# I I 

# I I I I 

# I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

# ORIGINAL
STATE OF NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD
No. EIB 04-06 IN THE MATTER OF PROPOSED 20.2.66 NMAC

- COTTON GINS

TRANSCRIPT OF PROCEEDINGS

BE IT REMEMBERED that on the 5th day of October, 2004, the above-entitled matter carne on for hearing before the New Mexico Environmental Improvement Board, taken at the Dona Ana County Health Services Center, Room 1101,1170 N. Solano, Las Cruces, New Mexico, at the hour of 3:06 p.m. 1 

# • I I I I I I I I I I I I 

# I I I I I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 A P PEA RAN C E S

For the Environmental Improvement Board: GAY DILLINGHAM, Chair CLIFFORD STROUD, Vice Chair GREGORY GREEN, Secretary GWEN WARDWELL HAROLD TSO DOLORES HERRERA MARY H. SMITH Assistant Attorney General Office of the Attorney General III Lomas Boulevard, Northwest Suite 300 Albuquerque, New Mexico 87102 For the New Mexico Environment Department: ASHLEY C. SCHANNAUER Assistant General Counsel Office of General Counsel New Mexico Environment Department 1190 St. Francis Drive Room N-4084 Santa Fe, New Mexico 87505

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 1505\ 243-501R

- Fax 1505\ ?41-1flOflPAGE I N D E X

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico (505) 243-5018

- Fax (505) 243-3606 

## I 

# I I I I I I I I 

# I I 

# I I 

# I I I 

# I I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WITNESSES: LANY WEAVER Direct Examination by Mr. Schannauer LANY WEAVER, MARY UHL and GI-DONG KIM Cross Examination by the Board ED HUGHS Direct Testimony Cross Examination by the Board 10

32

37 41 3

87102 

# • I 

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# I I I I I I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 E X H I BIT S MARKED/ADMITTED NMED: 1. Proposed 20.2.66 NMAC, July 19, 2004, Draft 2. Revised proposed 20.2.66 NMAC, October 5,2004, Draft 3. New Mexico Air Quality Control Act 4. Testimony before the Environmental Improvement Board Regarding Proposed 20.2.66 NMAC

- Cotton Gins, Lany Weaver, NMED 5. Air Quality Monitoring Study Report for Cotton Gins, New Mexico Environment Department, September 29, 2004

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018

- Fax (505) 243-3606 4KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (')0')) 24:1-S01 A - Fi'lX (')OSl 24:1-3606 I'm handing the meeting over to Ms. Gwen Wardwell, who is the Hearing Officer for both the next two hearings on the agenda. MS. WARDWELL: Okay. This is hearing

-- this is a hearing in EIB Number 04-06 to consider amendments to Title 20, Chapter 2, Part

-- wait a minute. I've got this wrong. I'm sorry. 2

-- oh, yes. 2.2

-- 2.66. Today is October 5th, 2004. We are meeting in Room 1101 of the Dona Ana County Health Services Center in Las Cruces, New Mexico.
am Gwen Wardwell, an Environmental Improvement Board member who has been designated as Hearing Officer in this matter. The petitioner in this matter is the New Mexico Environment Department. The Environmental Improvement Board is mandated by Section 74-l-8.A. (4) of the Environmental Improvement Act to adopt rules regarding air quality management. This hearing will be conducted in accordance with the Board's rule-making procedures and in a fair and impartial manner so as to assure that the relevant back to order. The EIB is back now in session at 3:06, and 6

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 ('in'i)**7~1-'in1R** - "',," ('in'i\ 741-11;nl; 1 facts are fully elicited and to provide a reasonable 2 opportunity for all persons to be heard without making 3 the hearing unreasonably lengthy or cumbersome or 4 burdening the record with unnecessary repetition. 5 The Rules of Civil Procedure and evidence 6 shall not apply to this hearing. As Hearing Officer, I 7 will make orders as may be necessary to preserve decorum 8 and to protect the orderly hearing process. To that 9 end, I ask that all persons at this hearing please turn 10 off all cell phones, pagers and beepers. 11 And then the hearing shall proceed as follows: 12 All testimony shall be taken under oath. 13 As Hearing Officer, I will admit any relevant 14 evidence unless I determine that the evidence is 15 incompetent or unduly repetitious. 16 Any person offering an exhibit shall provide 17 an original to the Board administrator and a copy to 18 each of the Board members and to its legal counsel, and 19 shall also provide additional copies for persons 20 attending the hearing. If visual aids are used, legible 21 copies must be submitted for inclusion in the record. 22 Any person who wishes to make a brief opening 23 statement before presentation of his direct testimony 24 may do so. 25 Petitioner will present direct testimony on 

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# I 5 I'd like to call this meeting MS. DILLINGHAM: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

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1 the proposed rule amendments. 2 Other persons who have filed a timely notice 3 of intent to present technical testimony will present 4 direct testimony in the order I establish. 5 If other persons, including members of the 6 public, wish to present testimony, those persons, in the 7 order shown on the sign-up sheet, will present direct 8 testimony on the proposed rules amendments. 9 If you wish to testify and have not signed in 10 yet, please do so now. 11 Any person who testifies is subject to 12 cross-examination on the subject matter of his testimony 13 and matters affecting his credibility. The parties 14 shall have the option of presenting their witnesses as a 15 panel for purpose of cross-examination. 16 Cross-examination by the Board members and the 17 Hearing Officer will be conducted at the conclusion of 18 each presentation, followed by cross-examination by any 19 other party. 20 Any person attending the hearing is entitled 21 to conduct whatever cross-examination is required for a 22 full and true disclosure of matters at issue in the 23 hearing. As Hearing Officer, I may limit 24 cross-examination to avoid harassment, intimidation, 25 needless expenditure of time or undue repetition. KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018

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# I 8 1 At the parties' discretion and if time 2 permits, rebuttal testimony may be given at the 3 conclusion of the public testimony in the same order as 4 the direct testimony. 5 Any person who wishes to make a brief closing 6 argument may do so at the conclusion of the hearing in 7 the same order as the direct testimony. 8 We will now proceed. 9 Will all persons who wish to testify at this 10 hearing on behalf of petitioner, New Mexico Environment 11 Department, please stand so the court administrator 12 may -- court reporter may administer the oath? 13 (LANY WEAVER, MARY UHL and GI-DONG KIM were 14 duly sworn or affirmed.) 15 MS. WARDWELL: Does the petitioner wish to 16 make a brief opening statement? 17 MR. SCHANNAUER: Yes, Madam Hearing Officer. 18 My name is Ashley Schannauer. I'm with the 19 General Counsel's Office at the Environment Department. 20 I just wanted to give you a quick preview of what we'll 21 be doing today. 22 We filed a notice of intent to present 23 technical testimony a few weeks ago, and we noted in 24 there that we were going to be presenting the testimony 25 of three witnesses. The witnesses are here, Mary Uhl to KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018

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# I I I I I I 9 1 the far

-- my far right, Lany Weaver in the center and 2 Gi-dong Kim to my immediate right. 3 Lany Weaver will be our primary witness, and 4 she'll be presenting some oral testimony that summarizes 5 the written testimony that she has already sUbmitted as 6 an exhibit. 7 And then after she's done, they together will 8 be available as a panel for cross-examination. 9 We submitted

-- in our notice of intent, we 10 identified five exhibits that we're going to be 11 discussing. Three of them were attached, and we're 12 MS. HERRERA: Excuse me, but I'm having a 13 tough time hearing. There's traffic coming in from this 14 door over here, and we need the airflow, and I can't 15 hear you. 16 UNIDENTIFIED SPEAKER: Louder. 17 MS. HERRERA: I'm sorry. 18 MR. SCHANNAUER: Okay. 19 What I was saying is we submitted

-- we 20 identified five exhibits in our notice of intent to 21 present technical testimony, and we attached three of 22 them to that notice. 23 I'd like to present the other two today, as 24 well, and I thought that it might be easiest if I just 25 presented a package of all five that you could look at. KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018

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# I I I I I I I I I I I I I I I I I I 10 1 So I can hand them out. 2 MS. CHAVEZ: Here. 3 MR. SCHANNAUER: The first exhibit is the 4 proposed regulation as we put it together for the public 5 notice. 6 The second exhibit is the proposed regulation 7 as we've revised it over the last few weeks. And the 8 changes will be discussed in the testimony. 9 The third exhibit is the

-- is a copy of the 10 Air Quality Control Act which has a copy of the 11 amendment that is really the genesis of this

-- this 12 regulation. 13 The fourth exhibit is the written testimony of 14 Lany Weaver. She'll be summarizing that in a minute. 15 And the fifth exhibit is a monitoring study 16 that provides the basis for the setback distances that 17 are being proposed in the regulation. 18 So with that as background, I'd like to start 19 with the testimony of Lany Weaver. 20 LANY WEAVER 21 having been first duly sworn or affirmed, was 22 examined and testified as follows: 23 DIRECT EXAMINATION 24 BY MR. SCHANNAUER: 25 Q. Can you state your name for the record? KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 ISOS\ ?d1-'inlR

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# I I 11 1 A. My name is Lany Eila Weaver. 2 Q. And what is your educational background? 3 A. I have a bachelor of science degree in 4 mechanical engineering from the University of California 5 at Davis. 6 Q. And where do you work now? 7 A. I work for the New Mexico Environment 8 Department, and I've been there for 14-and-a-half years. 9 Q. And what are your duties there? 10 A. I write regulations and develop State 11 Implementation Plan revisions and similar projects. 12 Q. Can you describe briefly what the elements of 13 the Department's proposal today are? 14 A. Yes. There are two elements. 15 One is the proposed Part 2.66, which is the 16 regulation which you'll see as Exhibit 1 and the revised 17 in Exhibit 2. 18 The other is because this regulation is part 19 of our State Implementation Plan, we're asking that the 20 Board approve a revision to the State Implementation 21 Plan. 22 Q. And you've prepared written testimony? 23 A. Yes. 24 Q. And that's what's been submitted as Exhibit 4? 25 A. Yes. KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 tc..rlt;\ ?A":l_r;('\1n

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# I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 Q. Can you describe what the State Implementation Plan is? A. Yeah. That's an agreement between the state and USEPA, Environmental Protection Agency, that sets out the state's responsibilities in implementing the federal Clean Air Act. And Part 2.66 will be part of the State Implementation Plan. We refer to it as the SIP. And the amendments are also a part of the SIP, because the state Air Quality Control Act is part of the SIP. It's
an element of the

-- of the plan. And when we at such time as this SIP revision is approved, it would be

-- by the Board, it would be submitted to the USEPA for their approval, because they have to approve it then, as well, under the federal rules. But it would be a state rule, as well, 2.66. Q. Are there any statutory requirements that apply to the proposal? A. Yes. Under the federal Clean Air Act and under the New Mexico Air Quality Control Act, New Mexico's air quality regulations must be sufficient to attain and maintain ambient air quality standards. And, also, there are -- there were recent amendments to the Air Quality Control Act that will KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102maintained.

the state level. 14

Can you describe what the basis of air

There is also another PM 10 there's As I said, A. There are air quality standards

-- ambient air

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (<;0<;) 741-<;01A - F'ilX ('i0";) 741-1606 national ambient air quality standard for

-- referred to
as PM 2 ,5 That's particulate matter that has an aerodynamic diameter of 2.5 microns or less. There is also a state level

-- New Mexico example.

ambient air quality standard for

-- that is referred to ambient air quality standards is? A. Air quality

-- ambient air quality standards have been developed based on health studies, and they're primarily set up to protect human health, especially the most vulnerable persons, which are the very young, the

quality standards on the national level as well as on
Q. What are the pollutants for which ambient air quality standards have been established and that are emitted by cotton gins? Q. You mentioned that the proposal is subject to the requirement that ambient air quality standards be

elderly and those with respiratory illnesses. Consideration can also be given to other issues such as effects of air pollution on crops, for 7 1 2 3 4 5 6

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# I I I I I I 13 provide for an alternative permitting procedure to be established by the EIB for cotton gins specifically. Q. Does the Department's proposal meet those

Q. If adopted, which cotton gins would be subject to the proposed regulation? A. It would apply only to cotton gins that emit less than 50 tons per year of particulate matter for which there is a national ambient air quality standard. That standard is referred to as PM 10 It's a particulate

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (<;0<;) 741-<;01A - FilX (<;0<;) 741-1606 But once they come under this regulation matter of 10 microns or less. A. Yes. requirements?

So once they're in, it's all

-- they're also willingly, then they would be subject

-- if they are SUbject to the regulation, if they choose to be, which would give them this alternative permitting procedure, then they are subject to all of the regulation

-- or all So if a cotton gin has the potential to emit 50 tons a year 50 tons per year or less of PM they 10. could qualify. They would not be subject to it, though, unless they invoke it in their permit application. They

-- it's a voluntary thing.

SUbject to all parts of it. of the requirements in the regulation. 4 1 2 3

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# I I 15 1 as TSP, total suspended particulate, and that includes 2 particulate matter that is 50 microns or less. 3 PMw' there is a national

-- a 24-hour standard 4 and an annual standard. The annual standard

-- because 5 cotton gins only run for a portion of the year, we're 6 not really concerned about the annual standard. The 7 24-hour standard is the one of most concern. And that 8 is an average of 150 microns per cubic meter averaged 9 over 24 hours. 10 For PM, .• , because that is such a small portion 11 of PM 10 coming out of a cotton gin, maybe 2 percent, if 12 they meet the standard for PMw ' they'll easily meet the 13 standard for PM,... So that's something we have to 14 consider, but it's really not of concern here. That I s 15 not the determining factor. 16 Total suspended particulate also has

-- excuse 17 me -- a 24-hour standard, and that is set at the same 18 level as the PM 10 ' which is 150 microns per cubic 19 meter micrograms per cubic meter. Excuse me. 20 Because PM 10 is a subset of TSP, because if 21 you're 10 microns or less, you're within 50 microns or 22 less, actually the TSP standard is the driving force in 23 the

-- the requirements of this regulation. 24 Q. Does the Department's proposal assure that 25 ambient standards will be maintained? KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 ('iO'i\ ?41-'i01R

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# I I 16 1 A. Yes. 2 Q. How does it do that? 3 A. In Section 202F, paragraph (2) of proposed 4 2.66, we require minimum setback distances between the 5 gin and the property line. 6 And the setback distances are a function of 7 how much particulate matter the gin is permitted to 8 emit, or if the gin is going to emit 50 tons per year, 9 then they would need to have a greater distance to the 10 property line, and

-- the setback distances were 11 developed as part of an ambient air quality monitoring 12 study, which is Exhibit 5, is how we determine what 13 those setback distances need to be to assure that at the 14 property line ambient standards would be met. 15 And Mary Uhl and Gi-dong will be answering 16 questions specifically regarding that. 17 And if anyone in the audience would like a 18 copy of that report, we have additional copies here, 19 too. I know we've handed some out. I'll put them on 20 the chair. 21 Q. I think we mentioned that this proposed 22 regUlation is the result of an amendment to the Air 23 Quality Act. 24 Can you describe what that did? 25 A. We changed two paragraphs of the ambient air KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 It:,,-.,t:,\ '1A':l_r::.nlQ

_ 1:''''' ..... tc,r\t:,,\**?A~_·::U:J\I':.:**Q. A. read it. 

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# I I I I I I I I I I I I I I I I I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 quality

-- or the Air Quality Control Act. In Section 74-2-7, paragraph C, it added a provision saying, "Except as provided in Subsection 0 of this section, the department or the local agency may deny an application for"

-- the following reasons. So it says that the Department

-- if a cotton gin or if a source meets the requirements of Subsection 0, the Department cannot deny a permit for that, that that facility. And then Subsection 0

-- I could read it out. It's a whole paragraph. Would you like me to read it into the record? It's also in It's also in Exhibit 3. Yes. It talks about how

-- well, I'll just

"The department may not deny an application for a construction permit for a cotton gin if the applicant proposes use of the best system of emissions reduction currently in use by cotton gins in the United States, as specified by regulation of the environmental improvement board, and the cotton gin has a potential emission rate, considering the use of the proposed emissions reduction system and the proposed hours of operation, of not more than fifty tons per year of any regulated air contaminant for which there is a national KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102**..,"'~** c,,'o

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# I I I I I I I I I I I I I I I I I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 ambient air quality standard. "The construction permit shall require that the applicant use the proposed emission reduction system and limit the hours of operation to the hours specified in the application. For purposes of this subsection, 'best system of emissions reduction' for cotton gins
means a system that will result in emissions reduction equal to or greater than that obtained by the use of condenser screens, seventy-mesh screen or equivalent on low-pressure exhausts and high-efficiency cyclone dust collectors on high-pressure exhausts." MR. SCHANNAUER: And for the Board's reference, that

-- Lany just was reading from language
on page 10 of Exhibit 3, in case you need to refer to that. Q. What is the current permitting procedure for cotton gins? A. All cotton gins that have been built or modified since 1971 must apply for and receive an air quality construction permit under the regulation Part 2.72 prior to operating. The permit application process under 2.72 includes the requirement that the source demonstrate that the impacts of the emissions from the
source will not exceed ambient air quality standards. This demonstration usually involves ambient KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102management plan, which includes enclosure on all burr system of emissions control? 20

Emissions from high-pressure exhaust, And the permit,

You'll recall that's basically what when issued, will include those requirements, plus any

was in the statute. A. All high-pressure exhaust must be controlled by use of high efficiency cyclone dust collectors. All

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 ('iOS) ?41-S01 A - F'ax {'i05\ 243-3606 hoppers, speed limits on unpaved roads and yard areas and other practices that would result in visible screens or drums.

low-pressure exhaust or fuel-burning equipment cannot exceed a 20 percent opacity level. The gin must implement a fugitive dust additional requirements that the applicant includes
as -- that will bring them, for example, under the 50 tons per year threshold or cap. Q. What are the minimum elements of the best Section 202 as the "best system of emissions control."

low-pressure exhaust must be controlled by use of

emissions no visible emissions of pollutants generated on the property at the property line. And the distance from the gin to the nearest property line must meet the setback distances set out in Section 202.F, paragraphs (1) and (2), based

-- and, That was referred to in the statute. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

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# I I all of the other elements in the standard construction permit application process, equipment, hours of operation, controls, the basic information that we ask

In addition, the permit application must include limitations that would result in allowable emissions after the permit is issued of no more than 50 of all applicants.

tons per year of PM,o' including a minimum

-- at a minimum the controls, limitations, plans and practices Q. What is the alternative permitting procedure

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 ('iO'i) ?4,-'iOl R - "','" {'iO'il ?41-1f>Of> 19

set out in the regulation 2.66, Section 202. And we are referring to the requirements in get a permit under the current procedures.
being proposed? A. A cotton gin may invoke Part 2.66 in their permit application under Part 2.72. In

-- once they do that, the application will not need to demonstrate with dispersion modeling that the impacts of the gin's emissions will not exceed standards, but it will include air quality dispersion modeling. As will be discussed later, dispersion modeling typically overpredicts the ambient air impacts of cotton gins. That's one of the things that was established in the monitoring report. And the current permitting procedure will still be available to cotton gins should they choose to

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# I I I I 21 1 again, that would be based on what their maximum 2 emissions could be. 3 And the gin must be located at least a quarter 4 mile from the nearest existing, when the gin is built, 5 state park, recreation area, school, and at least three 6 miles from a Class I area. Class I areas include 7 national parks and recreation areas. 8 And all equipment must be properly maintained 9 and regularly inspected by the gin operator. 10 Q. You mentioned the requirement that no visible 11 emissions leave the property line. 12 What happens during a dust storm? 13 A. Well, the limitation applies to dust that is 14 generated on the property, and if you have a significant 15 amount of dust blowing in on one side, you can't really 16 tell what's being generated to blowout the other side. 17 And as a result, this paragraph couldn't 18 really be enforced on high-wind days, during dust storms 19 and such like that. We just acknowledge it's

-- there 20 are times, given the area, that that kind of thing can't 21 be enforced. 22 Nevertheless, the gin operator would be 23 expected to take measures to limit the dust being 24 generated on the property. We don't want to make the 25 problem worse. KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (<;0<;\ ?dl-<;n1R
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# I I I I I 22 1 Q. How do the equipment and control requirements 2 of the proposed Part 2.66 compare to requirements cotton 3 gins find in other states? 4 A. Well, permit programs across the country are 5 all subject to the same requirement that we must attain 6 and maintain ambient air quality standards. And most 7 implement this via permit construction permit programs. 8 And so it's very difficult to compare different states, 9 because most states are implementing

-- are maintaining 10 standards via the permit program, and they all do it in 11 a slightly different way. 12 Some states do have regulations that set 13 minimum requirements that would apply to any permit 14 any cotton gin that gets a permit, and we can compare it 15 to that, but really the rubber meets the road in the 16 permit process, and so it's very difficult to compare 17 between states. 18 In addition, some states have much worse air 19 quality, you know. Central Valley, California, has more 20 stringent requirements, and they're a serious 21 nonattainment area for particulate matter, and so they 22 really have to be to crank down. 23 The equipment controls in Part 2.66 are 24 typical of the minimum of controls required in other 25 states. Some have more stringent control -- minimum KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (c,nr;\**?L1~_t;nlR** _**r.'~v** /snc;,**?d~-1hnh**

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# I I I I 23 1 controls. Fugitive dust is controlled in some of these 2 regulations, but not in all of them. 3 Basically, the Department believes that the proposed combination of control equipment, fugitive 5 dust, management plant and setback distances are really 6 the best balance between stringency and flexibility for 7 cotton gins. And that's because it will allow people to 8 maintain ambient air quality standards but work with the 9 situation on the ground at the time for that particular 10 gin. 11 So it's very similar to what's in the statute 12 even though some states go further. 13 Q. Where can someone find a 14 paragraph-by-paragraph description of the proposed Part 15 2.66? 16 A. Well, Table 1 of Exhibit 4 includes a 17 description of each paragraph. That's the written 18 testimony. At the very end of the written testimony, 19 there's a table that goes paragraph by paragraph of what 20 each particular part of the rule says and what is the 21 basis for that. 22 And that also includes any of the significant 23 changes that we're suggesting to the rule based on the 24 comments we received during the public comment period, 25 which is Exhibit 2 includes the strike-out/underline KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102**1~f\C\** "'lA') C""O t:"' ... ,. fr::;f\C., ")!1')_'::Ic.nc. 

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# I I I I I 24 1 format changes from Exhibit 1 which is the pUblic 2 comment portion. And so the Table 1 of Exhibit 4 3 includes that. 4 Q. Does Part 2.66 meet the requirements of the 5 amendments to the Air Quality Control Act? 6 A. Yes. 7 Q. Can you describe what the regulatory 8 development process was for the proposed Part 2.66? 9 A. Since the May

-- since May of 2003, the 10 Department's been working with a group of interested 11 people to develop this regulation, and they have 12 included the National Cotton Council of America, the US 13 Department of Agriculture Cotton Ginning Laboratory in 14 Las Cruces and the Department. 15 During the last year's cotton ginning season, 16 which was September through December, an air quality 17 monitoring study was conducted at the Mesa Farmers 18 cotton gin, which is the largest cotton gin in New 19 Mexico, and the study received material report 20 material support from the Department, Mesa Farmers 21 cotton gin and also a grant from USEPA. 22 In July of this year, a package of information 23 about the Department's proposal, including a description 24 of the related issues, was sent to all persons we had 25 reason to believe might be interested in this KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 Icnrl ..... ", c:r.1n l7'

__ • 1C:f\C\ ')/1"') _")r;:f\c.the EPA.

about. We've also been in discussion with EPA accept.

And I have copies that we can

And would you like me to address those -- Q. Yes, please. A. The first one basically states that -- KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 'sos, ?dl-S01R

- p"" 'sos,**?~l-lr;Oh** regarding the regulation and report, and some of that is reflected in the comments that they sent.

Q. You mentioned that you received comments from26 But I think we're pretty close to what they would

And the final report was posted on Thursday, and, again, people were notified that this was -- this
was available.

That was just a few minutes ago? A. Yep. Fortunately, the other end of this building has the Environment Department division

-- or regional office

-- regional office, and so they were able to fax it to them. hand out to people. And I think most of you all have either seen it or -- yeah. I apologize. They're difficult to read. And we have we're entering it into the record just so that we can on the record respond to them. Most of these things we've actually been in discussion with EPA 1 2 3

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# I I I 25 regulation. This included all the working group members, all the ginners in the state, members of the public that have shown a general interest in air quality regulations, EPA and anyone on record as having submitted a complaint about a cotton gin. So we sent it to everyone that we thought might be interested. Only one member of the public has commented on the regulation, and that comment has been addressed in

And we just received an hour ago comments from Exhibit 2.

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102**I~n~\ ?d,-~nlR**  - p"" 'SOS, ?dl-lr;Or; EPA, and I can provide those and comment on those, as well. On September 20th, a draft of the report, which is Exhibit 5, was posted on the web, and we notified anyone that had shown an interest in the process that the draft report was available. The State Records Center has been given an

We're hoping that these are all the changes they'll want. Historically, they've asked for additional changes, you know, tweaking this and that. initial review, and their suggestions have been incorporated. In fact, most of the changes you see are changes

-- are format changes from the State Records Center. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

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reductions is. 28

So we do have the means to revise this

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 nonattainment area or such, we can -- we will be back And we do have that means with regards to regional haze or any other

-- or if this area becomes a And our response to that will be that if they 11.aT,,;,, are requirements in the regulation, then they will be 1\ meeting ambient air quality standards, and so we have

Number 5, they'd like us to be able to reevaluate and modify what the best system of emissions

before the Board, addressing those other issues, and we
can address the cotton gin regulation at that time if it

rule. is necessary.

Number 6, Mary Uhl was going to respond to. MS. UHL: This is that the monitoring report cites various assumptions, for example, that the land
use should be limited to rural areas and nearby terrain should be limited to flat terrain. These facilities will be located near cotton fields. They won't be transporting cotton up to areas of, say, Northern New Mexico, where we would have possibly terrain concerns, and ginning in areas that are mountainous areas, just as a general matter, for transportation purposes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

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- PMX ISOS\ ?41-1hOh 27 1 basically what I believe what they're saying is that 2 they will not be able to accept the SIP revision unless 3 they accept as an element of it the monitoring report, 4 because the monitoring report provides a different basis 5 for establishing whether we're attaining ambient air 6 quality standards than the typical means, which is to 7 use ambient

-- computer modeling. 8 And so they're just basically acknowledging 9 that, yeah, this is a different way to verify that, and 10 they're going to have to
-- they're giving themselves 11 the option of making sure that that's met. 12 The second comment states that the report has 13 to be part of the SIP revision. 14 And it is. It's part of the hearing record. 15 The third item, they said that they wanted to 16 clarify that the rule doesn't interfere or supersede 17 with any existing federal air quality requirements. 18 Actually, we're going to ask for a slight 19 change to the rule to make sure that that concern is 20 addressed. And I'll get to it, because at the very 21 last, we're also going to be the same -- the same 22 item

-- the same change will address number 9. 23 Item 4, again, they want to make sure that 24 we're not going to be issuing permits that don't assure 25 that we're meeting standards. 

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# I I I I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 So we believe that this -- that this isn't a necessary thing to include in the regulation, that it's just part of the nature of cotton ginning that these facilities are in rural areas and nearby terrain is flat. MS. WEAVER: Item number 7, they refer again, they're referring to the minimum setback distance, and they wanted to
-- us to explain if the hypothetical concentration assumed background well, they basically want to make absolute sure that the PM,o standard is going to be met. And part one of our reply is the monitoring report, where we actually went out and monitored concentrations around a cotton gin and then looked at that information to see what would the impacts actually be. The other answer -- part of that answer is that we are being

-- because we are setting the set
-- establishing the setback distances for TSP, which is a larger subset than PM,o' we're being more conservative with PM '0 In fact, when we -- the last page of Exhibit 5 is a chart, and it shows two graphs, and one of them is the PM,o setback equation, the other one is the TSP setback equation. KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 t<;n<;\ ?A<-<;nlR
- I"",v t<;D<;\ ?d<-<r;Dr; 

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# I I I I I I I I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 And you can see that for the same -- for the
same emission rate, you'd have to be further away to meet the TSP standard than the PM,o standard, because they're both 150 micrograms per cubic meter. TSP is PM is a subset of TSP. So we're being conservative by '0 setting it based on TSP rather than PM,o And item number 8 of the EPA comments, they
are talking about how when we've

-- they've referred to how we've monitored concentrations during the study that
were greater than 150 micrograms per cubic meter. And our response to that was those were on high wind days. You know, in a dust storm, you're going to have higher concentrations, and there are provisions to take when we do have dust high

-- high wind days. We don't include that in determining whether we're meeting standards, because those are referred to as exceptional events. And number 9, the proposed rule should ensure maintenance of records and inspections are sufficient to demonstrate compliance with the rule. That takes me back to the one additional revision we'd like to make to the regUlation. In Exhibit 2, which is strike-out/underline version, on page 3,20.2.66.202, Permit Requirements, the lead-in sentence would have "and applicable requirements" added KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (I:,nl:,\ ')I1"l_1:,(110

_ t;':;>v (c,nc",**?J1~-~hnh**2. concerns? to the end of it.

And that would meet EPA's comments number 9

So does anyone wish to question

Madam Hearing Officer, could I ask We're open to
-- No.

MS. WARDWELL:

MR. TSO: A. Q. Okay. That's what we're requesting for

-- requesting 32

And, also, it we could have approval of this

Q. Is there anything else you'd like to add at So we have that permission.

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (S05\ 243-5018

- Fax (505) 243-3606 Well, I'd like to make the witnesses available

CROSS EXAMINATION regulation with the State Records Center. By nonsubstantive changes, that would include fixing any typos that we find and any formatting changes requested

revision to the state
-- the New Mexico State at the

-- by the State Records Center after this hearing.

Implementation Plan from the Board.

this time? today.

for questions as a panel at this point.

BY THE BOARD:

what's involved and

-- there's abatement equipment the petitioner to
-- one of them to pictorially or or cross-examine these witnesses?

schematically represent how the ginning process 8 7 5 6 2 3

9 1

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# I I I So you believe that's all (BY MR. SCHANNAUER) Q.

A. We're requesting approval of the proposed 2.66

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (c,nc,\ ?4i-c,m R

- F';;x {C,OS' ?4i-lhnh We'd like to make

-- to have permission to 31

So that the lead-in sentence would now read,

A. We'll need to probably have more discussions

Q. What is the Department requesting of the EIB? requirements."

with them, but I believe this includes in the record

make nonsubstantive changes prior to filing the Reduction, as well as other conditions, including but

as -- with this one extra revision as set out in Exhibit approve it. requirements, and test methods, as required to ensure

sufficient information for them to know that this the enforceability of permit conditions and applicable

that the Department needs to do to satisfy the EPA's

submittal is based on enough information for them to not limited to recordkeeping, monitoring, reporting "Permits issued in accordance with 20.2.66.200 NMAC shall include the following Best System of Emissions

and number 3. 

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# I I 33 1 involved and that kind of stuff, abatement equipment, 2 cyclones, scrubbers, what have you, that kind just 3 give us a pictorial presentation, because I'm a 4 little

-- well, I don't know anything about cotton 5 ginning. 6 I hear songs about it, but I don't

-- other 7 than that, I don't know anything about it. 8 MS. WEAVER: Well, we're very fortunate we 9 have someone from the ginning lab, the Las Cruces the 10 NMSU ginning lab here, and he has submitted a notice of 11 intent to testify, and he is really the best person to 12 provide that, someone that really has studied that, Ed 13 Hughs, and he is one of the people who is going to speak 14 today. 15 MR. TSO: Oh, okay. 16 MS. WEAVER: Would you be comfortable waiting 17 until he 18 MR. TSO: Yes. Thank you. 19 MR. STROUD: Madam Hearing Officer, I have one 20 question for Ms. Weaver, and that has to do with the 21 letter from the EPA that you handed out, on page 2, the 22 paragraph that they have numbered 4 23 MS. WEAVER: Yes. 24 MR. STROUD:

-- where they state that the rule 25 does not give the Department any discretion to deny a KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102**f~Ilc;" ?A~-C;nln**  _ J;'::llV fC;nt;\**?l1"1-'::u~nk** 

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# I I I 34 1 permit. 2 I heard your response to that. 3 Did they not write this after reading what was 4 contained in your response? 5 MS. WEAVER: My sense is they're putting in 6 placeholders. Basically, most State Implementation 7 Plans

-- the bottom line is you have to meet and 8 maintain standards, and most programs do that via the 9 construction permit program. So they don't give a 10 construction permit if you're going to be violating 11 standards. 12 The change to the statute, because of the 13 change that we're

-- that first change that refers to 14 paragraph 0

-- because of that change, we can't, through 15 the permit program, deny a permit from a -- under the 16 statute, we can't deny a permit as long as they meet 17 2.66. 18 And so what we did is we made sure that 2.66 19 is going to be sufficient to assure that standards will 20 be met. So either they go through the permit process, 21 and

-- in the regular way, and they demonstrate that 22 they are meeting standards, or they go to 2.66, and the 23 requirements of 2.66 will assure that they meet 24 standards. 25 And so that's how we respond to it. Well, KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

,..- roC" \ ..... " '") 1:1"\"1 Cl I r::nt: \ "") A") _"') c"c:36

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 t<;n<;,**?4<-<;n1~** -**""~v** ('in<;, ?4<-<hnh MS. HERRERA: Okay. MS. WARDWELL: Anyone else on the Board? Anyone in the audience wish to cross-examine this witness? Okay. Now we can hear from the one person, I believe, who has submitted an intent to present technical testimony. Thank you. And that is MR. HUGHS: You all can hang around if you want to. I feel kind of lonely up here. MS. WARDWELL: Mr. Hughs, right? MR. HUGHS: Yes, ma'am. MS. WARDWELL: So do we have to
-- you have to be sworn in. Yes. 

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# I I 35 1 we're doing it in a slightly different way than they're 2 used to, but we are meeting that requirement by putting 3 it into 2.66. MR. STROUD: Thank you. 5 MS. WARDWELL: Anyone else on the Board? 6 MS. HERRERA: I guess my only question is 7 and it's process. You were given this by

-- or this 8 letter from the Environmental Protection Agency, and 9 you'll be in conversation with them, not negotiation, 10 conversation with them? 11 MS. WEAVER: What the Board approves as the 12 SIP revision is the SIP revision. And the hearing 13 record is part of that SIP revision. The regulation is 14 part of that SIP revision. And that is what we submit. 15 We will put a cover letter on it

-- 16 MS. HERRERA: Okay. 17 MS. WEAVER:

-- and it

-- maybe in the cover 18 letter we'll give them more information. But we can't 19 in the cover letter, nor in negotiations with EPA after 20 the Board has made its rUling change the SIP revision. 21 MS. HERRERA: Good answer. 22 MS. WEAVER: That's your authority, not ours. 23 MS. HERRERA: Good answer. Thank you. 24 MS. WEAVER: And if they were to not approve 25 it, if something in here just gave them too much KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 tl:"t:;\**'1"~_l:(\1Q** _**C'_,,~** Ia:.nc,\**')11~_~~()e::** 

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# I I I I I I I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 heartburn MS. HERRERA: MS. WEAVER: sufficient

-- MS. HERRERA: MS. WEAVER: you. You give them our phone number. No. That's

-- the SIP is not

Just kidding.

-- and we would be back beforeKATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (sns\ ?41-S01A

- Fax 15051 243-360f; the record. I don't know. To continue on, and I do want to put this in context, cotton in the State of New Mexico is an important crop. It

-- in the letter that I have, called Summary of Testimony, that was submitted to Geraldine on September the 24th, you have some of that in there. So I think you probably read that, and I don't need to go through that now. But 14 years ago, there was not a real means of permitting this

-- the new cotton gin. We were not able to do it under the existing regulations at that time. And so there's a process of dealing with the New Mexico Environmental Department under

-- in various ways, somewhat

-- sometimes somewhat contentious. But about five years ago, I was engaged with Texas A&M in my laboratory here in town on monitoring boundary line conditions at the gin in question that was needing a permit. And at that time, we established for
sure that that the gin met the NAAQS, that there was
no violation of the ambient air. We got some numbers, as I recall, about 20 micrograms per cubic meter, where the study that was submitted to you by the New Mexico Environmental 

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# I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 ED HUGHS having been first duly sworn or affirmed, was examined and testified as follows: DIRECT TESTIMONY MR. HUGHS: Madam Hearing Officer, thank you, members of the Board. If I may digress just brief

-- just briefly, I wanted to thank Madam Chair and the members of the Board for rearranging the schedule. I'm one of those that cannot be here tomorrow. So I appreciate that. A couple others in the audience. And I say that because I want to bring this regulation into context. The reason I won't be here tomorrow is starting tonight my -- my wife and daughter and I will be completely immersed in preparing for my daughter's wedding. And I say that because 14 years ago there came
a need to permit a cotton gin in the State of New Mexico, and my young daughter, who is being married in a couple days, was there, and she helped me run the slide show and make the presentation. So this has been a while. MS. HERRERA: And she didn't come here why? MR. HUGHS: She's in the business of preparation right now. KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018

- Fax (505) 243-3606 

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# I I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. HERRERA: MR. HUGHS: 38 No, I get it. I'm just kidding. I assume you'll strike that from

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# I I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 39 Department, the recent one, was about 28, similar numbers. Unfortunately, that was only eight days worth of monitoring, and a gin runs about three months a year. So the New Mexico Environmental Department didn't feel that that was adequate to protect the air quality of the airshed. And so we were still at somewhat of an impasse. So about four years ago, we started

-- the New Mexico cotton ginners and others started the process of changing the rules. Basically, if you -- you know, if you can't win the game one way, you change the rules. But it was necessary to relieve the State of part of the problem of permitting gins. We

-- and this

-- and the regulation was House Bill 192, was developed with the New Mexico Environmental Department. We

-- in the committee hearings, we worked together on getting this regulation through. And I believe, Madam Hearing Officer, you were at some of those committee hearings for this legislation. Basically, it brought New Mexico

-- what it did, it brought New Mexico more in line with the way gins are permitted in other states. It is an KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (<;n<;1 ?41-<;01 A - F'i'lX ('lO'l) 243-3606 

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# I I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 agricultural source. It is a -- it is a minor source. It doesn't approach anything like a Title V source that would be of concern. And so it basically gave New Mexico a means of permitting cotton gins, new construction. Cotton gins are somewhat unique in that farmers, for almost any other commodity you care to name, once the commodity passes the farm gate, it is saleable. The farmer can market it. Cotton is

-- is not that way. Cotton must be processed in a central plant in a cotton gin and the fiber and seed separated prior to marketing. And in the audience, we have quite a number of cotton people, all the way from farmers, ginners, both private and co-op ginners, as well as merchants, and they have all worked along with the New Mexico Environmental Department in the development of the regulation that you see before you. I think, actually, there's not a lot else I want to say. I would be available for questions. Board Member Tso has asked one that I would be glad to go through a schematic of a cotton gin. I also have Dr. Bill Norman behind me, who is also very knowledgeable in cotton gins, as well as gin operators, that I think we can answer about any question that you KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 ICAC.\ '">Il"'_l:;,"10

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# I I I 41 1 may want. 2 And as for the last, since I am a federal 3 employee, work for the USDA, I have my purpose for the last 14 years has been to serve as a technical 5 resource, both for the ginning industry of New Mexico as 6 well as the New Mexico Environmental Department and now 7 this Board. 8 So I'm available for

-- I hope to answer any 9 questions that you may have, any concerns. 10 Would you like me to 11 MS. WARDWELL: Would Mr. Tso like to 12 cross-examine this witness? 13 CROSS EXAMINATION 14 BY THE BOARD: 15 MR. TSO: Well, I'd like to see some more 16 information before 17 MS. WARDWELL: Okay. 18 MR. HUGHS: A schematic pictorial? 19 MR. TSO: Yes. 20 MR. HUGHS: Is this

-- what do we have 21 available? Do you have any markers? 22 MS. WARDWELL: Here's one over here. It's an 23 eraser. No markers. 24 MS. ABEYTA: Let me go -- 25 MR. HUGHS: While we're doing that, maybe I KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

'-"A-. r .... .,,.., ...... _ .. 'CAl::'**')II~ .~c.nc.**  

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# I I I I I I 42 1 can just talk a little bit. 2 Gins use a lot of air in the processing of the 3 cotton. Something like 60 percent of the power using a 4 gin is moved primarily for

-- used for moving air 5 around. And the reason is because cotton is not like 6 grain, where you can shovel it or move it easy. It 7 sticks together, and you sort of have to vacuum it 8 around and move it by air. And so this moving of air 9 necessitates having to clean this air up. 10 And I've been involved with studies in the 11 past really documenting what comes out of a gin, and 12 part of the

-- you heard in Lany's testimony earlier 13 that it's particulate matter, and we have research and 14 results that we've published in peer-reviewed journals 15 that back that up, if you' re interested in that. 16 But because it is

-- the air must be cleaned 17 up prior to emissions, we use what are called high 18 efficiency cyclones to do that. 19 And those are mechanical devices, no moving 20 parts, that, basically, as the air comes out of the gin, 21 as it exhaust

-- as it's exhausted from whatever process 22 it happens to be, the air comes into a cyclone

-- and we 23 don't have a marker yet, do we -- comes into a cyclone, 24 centrifugally starts going around in a circle, the air 25 comes -- goes down to the bottom of the cyclone, then it KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102
ft:nC\ ')1l')_c.nlQ r.'::to"V' lc.nl:,.\ ?A"':t_':le::flh43

year.

We have an -- essentially a suction device. nevertheless, that's basically what it is.

This air Okay.

This

-- the trash and air come in. Now, what this is, this is a transition that

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 tsns\ ?d1-<;nlA

- 1""" (SOS) ?41-1h06 44 seed cotton, if necessary, and then you pull the fiber off the seed. And then there's some subsequent things. You package this stuff and move it around. So the first thing you do, your unloading system comes into some kind of a cleaner. These

air stream out to a cyclone. cleaners have cylinders in them. I'll try to keep this brief. I mean, I could go on for hours, but I'll keep it as brief as --

a -- this is hidden. This is open to the atmosphere here. And this is open to the bottom here. comes into the cyclone, and there's an exit

-- there's MS. WARDWELL: We believe you. MR. HUGHS: It comes into cylinders, and the bays are just big spike cylinders that rotate, nothing real fancy, and they open up the cotton, the seed cotton keeps going, trash drops out the bottom. Now, this trash then must be disposed of, and usually it's in an

And I'm going to
-- okay. And to a cyclone. Cyclones are cyclones regardless. And if you look at the outside of a cyclone, it basically I'm not much of an artist. Sorry. But it's something like this. It looks to the outside. Okay. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

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# I I I And the trash is reverses direction and goes back up through the center,

Okay. Let me -- having said that, here's here is a cotton modular trailer. This is the seed

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (sns\ ?dl-SnlA

- 1""" (<;0<;\ ?4i-lhOh well as a certain amount of trash. cotton coming in from the field that contains the seed cotton, contains the fiber and seed still attached, as if you can envision that. This was first developed by the Atomic Energy Commission back in the 1950s as a way of handling atomic

-- nuclear waste. So they're very high efficient

-- high efficiency. They also have no moving parts, so they lend themselves very well

-- thank you to plants like cotton gins that only run a few months a

primarily plant material and some soil particles. And depending on the field conditions and those kinds of things, the amount varies, but,

It's just a big vacuum cleaner for the air module feeder
or wagon as it comes in that takes the seed cotton into the gin plant. Now, a gin plant is a pretty simple operation. You only do two
-- only do actually three things. You take out trash from the seed cotton, and you dry the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

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atmosphere. 46

Just use that piece of cotton It's right there behind you,

This will work.

Seed cotton cleaning, there are various MS. CHAVEZ:

Okay. MS. HERRERA:

MR. HUGHS: Thank you. right there.

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87]02 (c"nc:., ?i1'1_c,nlf1 - F';:p,( (,;nr;\ ?dl-1hnh At this point, the seed cannot go through the

-- to the gaps in the ribs. The fiber

-- but the fiber can. So the fiber goes out the back. Seed drop out the bottom. And that's ginning. Okay. At this point, there's some further cleaning of this fiber, and this fiber then goes into a bale press. It's a high

-- very hydraulic ramp and a tramper, where you make 500-pound bales that are basically the consistency, when you tie them out, of wood. They're very dense. And it's at this point then the farmer has a product that he can sell. And the farmer

-- many of stages of that. Then you get into the gin stand. And the gin stand is sort of an Eli Whitney thing. There's
a saw inside

-- pardon me. That should be a saw. Seed cotton comes in. It goes through some -- the saw turns to some ribs. Greg.

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Now, this kind of process, the seed Okay. Now, it's at this point that it becomes a
concern to the New Mexico Environmental Department. air comes out the top, and it's exhausted into the

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- F"x ('iWi) 243-3606 plume, you monitor that plume. And so that's what Lany
was referring to in her statement. comes around, starts circling, like this, around inside,

is over her"e. the gin is somewhere in the middle. comes down, right about this point, they do the cyclone design, it reverses. At this reversal, the trash particles drop out either into an auger -- some way they contain them and move them out so it doesn't show. The

cotton cleaning, goes on through the gin. earlier is you set up monitors on all four corners. So regardless of which direction the wind's blowing, you -- whether it's this way or this way, whatever, you get the What is the

-- what is the effect of that air on the
on the surrounding airshed. And so what happened at the gin monitoring study

-- you have a gin yard. And those vary in size, allover the state, depending on what it is, but usually 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

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KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 I t:"nt:;, ,**?11~_t;nlR** - lO':=tv t'=.()t;\**?ll~-":u::;nh** MR. TSO: Okay. Now, going back to the

-- where you had the monitors, the so-called gin system in the middle of your That clarifies a lot. Okay. Yeah.

Is there another exit after

-- at MR. TSO: MR. HUGHS: MR. TSO: that baling point of the air to the environment? MR. HUGHS: This baling point, the last

-- the last air change is called a battery condenser, and after this gin stand, there's some lint cleaning that occurs,
one or two stages. There's air involved in that. And the air is brought through ducts

-- or the air and lint mixture are brought by ductwork to these battery condensers, which is really just a big screen drum with holes in it, and the air is pulled through the holes and out. So there is an air change just prior to this

-- to the bale, baling. This is typically very low in particulate emissions, very low. Everything's been taken out here. Basically, the order of concern is your unloading system, first system off the trailer, has more trash in the exhaust simply because there are just more soil particles and things there. And it decreases as you go through the gin. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

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KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 Isns\ ?41-'inlR

- F'"" ('i0')\ ?41-1flOfl 1 these guys in the audience, they

-- they own this cotton 2 all the way through, and they sell it at this point. 3 Okay. 4 And all

-- everywhere through here, there are 5 several different changes of air. It depends on the 6 design of the gin, but there's probably at least five or 7 six changes of air depending on how things are handled 8 and how it's designed. 9 And the high on the

-- prior to this

-- the 10 reason I put the gin here is this is kind of the split 11 point of the process. In the regulation, it talks about 12 the high-pressure system. And this is important to what 13 the regulation says. 14 The high-pressure system of the regulation 15 goes into these cyclones, okay, because there's quite a 16 bit more air, quite a bit more dirt involved, 17 particularly, you know, soil particles, plant material. 18 After the gin, there's still air handling of 19 the fiber, but much less particulate matter, much less 20 dirt involved. That's where the screen -- the screen 21 baskets that are -- or the condenser screens are 22 involved, the low-pressure system. But those are also 23 covered in the regulation. 24 And then that's

-- you know, that's basically 25 it. 

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But in a gin, there's a lot of material that a Excuse me, Lany.

did

-- I I don't know This is an

I was -- Okay.

Exhibit 5 would be the monitoring

So if you'd like to hand those During the study, we had them

Yeah. You have in your packet there

-- I

Yeah, right. The monitoring study, and in that I see. And we also had a met station, a

MR. HUGHS: MR. HUGHS: MS. WEAVER: MR. HUGHS: MS. WEAVER:

MR. TSO: MR. HUGHS:

MS. WEAVER:

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 ISOS\ 741-SnlR

- PrlX (0,05) 743-3606 And, also, we have 50 And then the monitor stations would be located at various points on the perimeter there?

you have a schematic of the setup, do you not? MS. WEAVER: Yes. Yeah. Figure 1. a -- direction. located around, not exactly necessarily north, east,

think you probably wrote this.

out
-- introduction

-- study. south and west, but we went
-- tried to go in each

think it's called Exhibit 1 of the summary, you have meteorological measuring station, so that we knew at the gin what was -- which ways was the wind blowing and how hard was it blowing. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

23 24 25 18 19 20 21 22 

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-- if I may answer Or is it You're saying property line.

Yes. MR. TSO:

MR. TSO: plot of earth, and then you had four monitoring

The property line

-- can the property line be

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (SO".\ 741-".01 R

- Fax (505\ 243-3606 Does that answer your question? measurements that go with the setback system? MS. WEAVER: It's from the center of the gin. You know, there's a building, and a building could be in any shape, but the measurement would be from the center

setback distance. of the gin to the nearest property line. MR. TSO: Okay. And that's called a setback. MS. WEAVER: That's what we refer to as the

processes -- well, Mesa Farmers handles 18 bales an hour. That is a lot of cotton. So you need a big yard in which to store that. So you've got to have a lot of that.

gin handles. A 500-pound bale takes 1,500 pounds of material roughly to handle that. And if a gin the building walls? MR. HUGHS: stations, where is the setback and, I guess, the

18

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1 MS. CHAVEZ: Here. 2 MR. HUGHS: I was co-author on this. 3 (Discussion off the record.) 4 MS. WARDWELL: All right. 5 MR. HUGHS: Madam Hearing Officer, may 6 Mr. Reid speak? He's a ginner from the east side of the 7 state? Is that okay? 8 MR. REID: I just wanted to make a point, 9 since you don't have a visual guide there yet that 10 you've looked at, a lot of the gins, not all of them, 11 use the air to move the cotton up into the upper portion 12 of the building, then it's gravity flows back down 13 through the various cleaners, and that's the ginning 14 process. 15 There's some gins that don't use as much air, 16 but you use the air to move the cotton up into the 17 cleaners in the drying process. And the air movement is 18 a big portion of the ginning process. 19 MS. WARDWELL: Are you content now, Mr. Tso? 20 MR. TSO: Yes, ma'am. I think most of my -- 21 MR. HUGHS: Is that more than you ever wanted 22 to hear about a gin? 23 MR. TSO: Well, I'd still like to hear more, 24 but this is fine. Yes, sir. Thank you. 25 MS. WARDWELL: Does anyone else

-- does KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (5051 243-5018

- Fax (505) 243-3606 

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1 anybody want to cross-examine this witness? 2 MR. STROUD: Madam Hearing Officer, Mr. Hughs, 3 when I was young and healthy, I spent many hours in the 4 cotton fields picking the cotton my grandfather raised 5 the old-fashioned way, with a bag, hanging bag, many 6 feet, then we sent it down in Loving, which is a gin 7 represented here today, which leads to a question. 8 In your opinion, the industry representatives 9 that are here today, are they on board and supportive of 10 these proposed regulations? 11 MR. HUGHS: As far as I'm aware, everybody 12 that you see in the room behind us is supportive of the 13 regulation. 14 MR. STROUD: And another question. Are you 15 aware of individuals in the industry that are not in 16 support of regulations? 17 MR. HUGHS: I have not personally heard from 18 any that are not. 19 MR. STROUD: Thank you. 20 MS. WARDWELL: Anyone else? 21 MS. HERRERA: I have a question, just a 22 clarification question. 23 So this process does not include any other 24 type of emissions, one? 25 Two, do you use any type of heat or water? KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018

- Fax (505) 243-360653

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018

- Fax (505) 243-3606 Once in a great while, if it's too dry, which
we often get in New Mexico, at dry times you may have to rehumidify it, and that is a minor process. You just
use humid air, really, and transport the cotton. MS. HERRERA: The third part of that question, and I don't know if it's going to be like a part of the question, but is your daughter's wedding dress cotton? MR. HUGHS: Boy, it better be. MS. HERRERA: If not, fine him. MR. HUGHS: There

-- in the early stages, where I drew the seed cotton cleaning there, that first stage mayor may not have some heated air. It-- usually it's fairly low temperature. Some years, depending on the weather conditions

-- you heard the thunder a while ago. If it's wet, the wetter it is, the
more heat you may have to use. The reason being, cotton, like most organic materials, process -- processes the best for the highest quality at a certain moisture level, 6 to 8 percent moisture. So if

-- and cotton, though, to be harvested and kept in a module, has to be harvested less than 12 percent moisture. So you may sometimes have to bring it down.

Shouldn't you -- shouldn't she Thank you. MS. WARDWELL:

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (SOS\ ?41-S01A

- PnX (SOS\ 241-3606 Bureau. MS. ABEYTA: Thank you, Madam Hearing Officer. Cecilia Abeyta, New Mexico Farm and Livestock54 Is there

-- there's no further cross-examination?

MS. SMITH: Yes. MS. WARDWELL: Yes. Could you, please? (CECILIA ABEYTA was duly sworn or affirmed.) MS. WARDWELL: Okay. Does anybody want to cross-examine this Do we have people in the audience

-- anybody who wants to make nontechnical

-- give nontechnical

be sworn in? testimony?

regulations. We'd just like to commend the Department and thank them for working with our producers that I represent, and just thank you again for all their hard work and sitting at the table and listening to their input and so forth. That's all I have to say. We ask that you would support these proposed 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

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We're just in full support of what the

CCR License Number: 21 Expires: 12/31/04
12/12/07 56

ss.

I, CHERYL ARREGUIN, the officer before whom the STATE OF NEW MEXICO

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 (505) 243-5018

- Fax (505) 243-3606 COUNTY OF BERNALILLO

personally recorded the testimony by machine shorthand; the witnesses whose testimony appears in the foregoing foregoing proceeding was taken, do hereby certify that

counsel for, nor related to or employed by any of the that said transcript is a true record of the testimony transcript were dUly sworn or affirmed; that I

parties to the action in which this proceeding is taken, given by said witnesses; that I am neither attorney nor

interested in the action. or counsel employed by the parties hereto or financially and that I am not a relative or employee of any attorney

My Commission Expires: 6 7 8 5

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No. No.

Everybody just wants to go

No further statements.

MS. WARDWELL: All right. MR. HUGHS: MR. SCHANNAUER:

MS. WARDWELL: MR. SCHANNAUER: MS. WARDWELL: Would the petitioner like to Is there any rebuttal testimony to anything?

(Proceedings adjourned at 4:13 p.m.) So now it's up to
-- to Gay. And there's no one else in the audience that 55

KATHY TOWNSEND COURT REPORTERS 110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102**(~05)** 243-5018

- Fax (505) 243-3606 Department's done. rebuttal.

home, right?

wants to make any closing statement, person presenting

make it

-- we don't need to leave it open. this public hearing is now closed. And we don't need to make a closing argument?

technical

-- Mr. Hughs. 1 2

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# I I I I I IBILL RICHARDSON GOVERNOR 

### State of NewMexico ENVIRONMENTDEPARTMENT Office of General Counsel HaroldRunnelsBuilding 1190St. FrancisDrive, P.O. Box26110

Santa Fe, NewMexico 87502-6110

Direct Telephone (505) 827-6891 Facsimile (505) 827-1628

November2, 2004 RON CURRY SECRETARY DERRITH WATCHMAN-MOORE DEPUTYSECRETARY


### MaryH. Smith, Esq. New Mexico AttorneyGeneral's Office 111 Lomas BoulevardNW#300 Albuquerque, NM 87102-2368 Re: Cotton GinRegulation DearMary: As we discussed, I'mproviding afurther explanation ofthetypographical correctionwe are proposing, and I'm enclosing therelevant documents to illustratethe changes. Please note, too, thatthe correctedversion oftheregulation also includes aminorchange werequested during the October5, 2004 hearingto respondto EPA comments wereceived earlierthatday. 

### 1. Typographical Correction. The typographical correction we areproposingis a correctionto conformthe regulationto the evidencepresented atthehearing andto the documents wepublished forpublicreview and comment.
a. Conforming the regulation to the evidence. 

### In terms ofthe evidence, NMED's written testimony statedthatthe setback distances in theregulationwere determinedbasedupon the monitoring studyofaworking cotton 

### gin: "Exhibit4 is theAir QualityMonitoring StudyReport. The setback distances 

### in Part2.66 arebasedupon theresults ofthis monitoring study." SeeWrittenTestimonyofLanyWeaver, p. 5. Table 1 to the written testimony also cites to themonitoring study as the source ofthe setbackdistances. 

### In addition, LanyWeaver's oral testimony atthe Oct. 5, 2004 hearing citedthemonitoring studyas the source ofthe setbackdistances: "Andthe setbackdistances are afunction ofhow muchparticulatematterthe 

### gin is permittedto emit, orifthe 

### gin is goingto emit 50tons peryear, then they wouldneedto have a greaterdistanceto thepropertyline

-- the setback distances were developed as partofan ambient airquality monitoring study, which is Exhibit5, is how we determinewhatthose setback distances needto be to assurethat atthepropertyline ambient standards aremet."

### Tr. 16 (Emphasis added). Thetypographical erroroccurredwhenwe tried to express the setbackdistances inthe regulation. 

### b. The typographical error. The equationinFigure 8 ofthemonitoring studyis correct: y= -248.74457 

### + 16.48113 X 

### +0.0771 X2 

### [inunits ofmeters] Themistake occurredwhenwetried to transferthe equationinto theregulation. We wanted to express the distances in feetin theregulation, butwe mistakenlyusedthemetric coefficients. The equationintherevisedproposedregulationNMED Exhibit2 contains the error -- using the samemetric coefficients from themonitoring studybutdescribing the distances intheregulation inunits offeet: y= -248.74457 

### + 16.48113 X 

### + 0.0771 X2 

### [inunits offeet] The correctequationis statedbelow. The coefficients inthe equationinthe corrected regulation shouldbe convertedinto feet: y= -816.0886

### +54.0718 X 

### +0.02385 X2 

### [inunits offeet] Thecorrectionis madebymerelymultiplyingthemetric coefficients by 3.28083 to convert from meters to feet. Accordingly, we'reproposingto correctthe typographical errorbyrevising section 202.F(2) as follows: (2) Theminimum distance 

### (in feet) 

### in all directions from the cotton 

### gin to the propertyboundary shallbe calculated as themultiple ofthe square ofthe maximumemissionrate 

### (in pounds ofPMI0 perhour) and 0.07271 0.02385, plus themultipleofthemaximum emissionrate 

### (in pounds ofPM10 perhour) and 16.4g113 54.0718,minus thevalue 248.74457 816.0886.


### c. Conformingthe regulation to the documents sharedwiththe public. As yourequested, I'm also enclosing a copyofthepublicnoticewepublishedin theNew Mexico Register and the webpage where weposted documents forpublicreview and comment. As you'll see, the monitoring studies thatwere discussedwiththe cotton ginners arethe documents that were presentedforpublic comment. Theversion oftheregulationwiththetypographical errorwas notpublished onthe web site. 

### Itwas first usedwhenitwas submittedinto the record atthe October 5 hearing.

2

### 2. Further ChangeRequested and Approved at Oct. 5 Hearing. Duringthetestimony atthe October 5 hearing, theNMED requested a further

### minorchangeto theregulationto address the comments ofthe EPAwhich werereceived afew minutes prior to thehearing. Ms. Weaverrequested thatthe language "and applicablerequirements" be added to section202. Tr. 26, 30-31. This was 

### inresponseto a commentmadebythe EPAin its October5, 20041etterwhichwas faxed to theNMED thatdayand submittedinto the record (See attachment). Please letmeknow ifthis answers yourquestions. 1'dbehappyto discuss this with you further orprovide any otherinformationyouneed. Thanks for yourcooperation. Verytrulyyours,**~·~:v·/ ~"'v**  ,/'".**//~** 

### AsWey C. Schannauer

cc: MaryUhl, 

### Air QualityBureau

3

## ~' , '1"\ \**~Op** 

# :

. t ...., STATE OF NEW MEXICO

### '--_,~/ 

## ENVIRONMENTALIMPROVEMENTBOARD
PETITION FORPUBLIC HEARING TO CONSIDER ADOPTION OF 20.2.66 NMAC -- COTTON GINS
NEW MEXICO ENVIRONMENT DEPARTMENT'S MOTION FOR THE BOARD TO RESUME DELIBERATIONS AND REOPEN THE RECORD 

### TheNew MexicoEnvironmentDepartment (Department) herebymoves the Environmental Improvement Board (EIB) to resume its deliberations andreopen the record for thepurpose ofcorrecting amistake made by the Departmentin the version of the regulationvoted upon atthe EIB's October 5, 2004 hearing. 1. On July 19, 2004, theDepartment filed apetition with the EIB for the adoption ofanew chapterto the New Mexico Administrative Coderegulating emissions from cotton gins. Theproposedregulations had two primary elements -- (i) specifications for airpollution control equipmentto minimize emissions and (ii) setback distances to ensure thatremaining emissions would not adversely affect ambient air quality on adjoiningproperties. 2. The Department developed the proposed regulation, inpart, through the performance ofamonitoring study (NMED Exhibit 5) to determine the appropriate setback distances and through consultations with affectedparties, including the cotton gin industry. 3. The monitoring study produced amathematical formula that determined the appropriate setback distance for any level ofemissions. The mathematical formula and all evidence thatbacked the formula was compiled in atechnical support document

### for theproposed regulation (NMED Exhibit 5). This document was available on the NMED website and was providedto all interestedparties. It 

### was the Department's intent to incorporate the formula into the proposed regulation. 4. The EIB held ahearing on the proposedregulation on October 5, 2004, during which the Departmentpresentedtestimony and several exhibits. The exhibits includedthemonitoring study (NMED Exhibit 5) and aproposedregulation (NMED Exhibit2) in which the Department attemptedto incorporate the formula from the monitoring study. 5. Two additional people testified atthehearing, both ofwhom supportedthe Department's proposal, and, atthe conclusion ofthehearing, the EIB voted to approve it. 6. Afterthe hearing, the Department discovered that theproposedregulation inNMED Exhibit 2 was in error. \Vhen attemptingto incorporate the formula from NMED Exhibit 5 into NMED Exhibit 2, the Departmentfailed to fully convertthe formula from meters into feet. 7. The errorwas notin tlie monitoring study (NMED Exhibit 5), which is the documenttheparties hadbeen discussing in the collaborativeprocess prior to the hearing. Themonitoring studywas the apparentbasis onwhichthe cotton gin industry supported the proposedregulation. 8. The errorwas also notin the draftregulationthathadbeen circulatedto interested parties priorto thehearing. The first document that contained the errorwas the version oftheregulation (NMED Exhibit 2) submitted to the Boardwhen the Department presented its testimony on the day ofthe hearing, October 5, 2004.

2

### 9. Themonitoring study expressed the formula for calculating setback distances in meters, and the Departmentintended to express the setbackdistances in the regulations in feet. In 

### preparing NMED Exhibit 2, the Department included a formula that labeled the calculations produced inthe formula in "feet" butused the same coefficients from the metric formula 

### in the monitoring study. 10. The formula in Figure 8 ofthe monitoring studytechnical support document (NMED Exhibit 5) is correct: y= 

### -248.74457 

### + 16.48113 X 

### + 0.0771 X2 

### [inunits ofmeters] 11. The formula inNMED Exhibit 2 contains the error. It attempts to express the formula 

### in feet, butituses the samemetric coefficients as wereused inthe monitoring study: y= 

### -248.74457 

### + 16.48113 X 

### + 0.0771 X2 

### [inunits offeet] 12. The correct formula is statedbelow. The correction is made merelyby multiplying the metric coefficients by the conversion factor of3.28083 to convert from meters to feet: y= 

### -816.0886 

### + 54.0718 X 

### + 0.02385 X2 

### [inunits offeet] 13. When corrected, section 202.F(2) ofthe proposedregulation shouldread
as follows: (2) Theminimum distance (in feet) 

### in all directions from the cotton ginto the propertyboundary shall be calculated as the multiple ofthe square of the maximum emission rate (inpounds ofPM10 perhour) and 0.07271 

### 0.2385, plus the multiple ofthe maximum emission rate (inpounds of PM10 perhour) and 16.48113 

### 54.0718, minus the value 248.74457 

### 816.0886. (Proposed NMED Exhibit 6, attached hereto).

3

### 14. The EIB has not, to date, approved a Statement ofReasons for the regulationnorhas it filed the regulation with the StateRecords Center and Archives for publication in the New Mexico Register. The regulation does notbecome final until it is published in the New Mexico Register. 15. The Departmentis requesting the correction oftheregulationnow instead ofallowing the mistakenregulationto become effective andproceeding laterwith anew rulemaking to amend the regulation for the following reasons: 16. As things stand now, certain cotton gins are waiting for the adoption ofthe
new regulations to obtain permits. \\!henproperly adopted, theproposedregulations will promote the use ofthe airpollution controls specifiedinthe regulation and the implementation ofthe setback distances. These measures will help control airpollution, theprimary goal ofthe EIB's airpollutionregulations. 17. Ifthe new mistakenregulation is allowed to become final, itwill create confusion and forestall efforts to control airpollution. As was noted at the October 5, 2004 hearing, the newly-adoptedregulations will becomepart ofthe New Mexico State Implementation Plan (SIP) whichis subjectto review and approval bythe U.S. Environmental ProtectionAgency (EPA). Iftheregulation approvedbythe Board is inconsistent (i.e., less stringent) thanthe formula developed in the monitoring study (NMED Exhibit 5), EPAwill not approve theregulation's inclusion in the SIP. This prospectwill castimmediate doubt onthe enforceability ofthe regulations and on the validity ofanypermits issuedunderthem. 18. Ifthe EIB finalizes the mistakenregulation, the confusionregarding the validity ofthe regulations will likely delay the installation ofthe control equipment

4

### requiredbythe regulations causing the continuation ofcurrentlevels ofairpollution and potentially discourage existing companies from making modifications that would require
new permits and new companies from building facilities requiring permits. All ofthese results are in conflictwith thepurposes ofthe AQCA. Wherefore, the Departmentrespectfullyrequests thatthe EIB resume its deliberations andreopen therecord for the purposes ofintroducing the corrected version ofthe proposedregulation, NMED Exhibit 6, and approving the correctedregulation.
Respectfully submitted,
Ashley C. Schannauer Assistant General Counsel

Certificate ofService I 

### certifythat on February 7,2005 a copy ofthe foregoing Motionwas sentvia first class mail to: Ed Hughs Southwestern Cotton Ginning Research Laboratory 300 East College Drive P.O. Box 578 MesillaPark, NM 88047 Cecilia Abeyta New Mexico Farm and LivestockBureau P.O. Box 20004 Las Cruces, NM 88004
Ashley C. Schannauer Assistant General Counsel

5

### TITLE 20 

### ENVIRONMENTAL 

### PROTECTION CHAPTER 2 AIR QUALITY (STATEWIDE) PART 66 

### COTTON GINS
20.2.66.1 

### ISSUINGAGENCY: Environmental hnprovement Board. [20.2.66.1 NMAC

- N, MO-DY-YR] 20.2.66.2 

### SCOPE: All persons who intend to construct ormodify a cotton ginning facility as defined in this part, except as otherwiseprovidedby this part. [20.2.66.2 NMAC

- N, MO-DY-YR] 20.2.66.3 

### STATUTORY AUTHORITY: Environmental Improvement Act, NMSA 1978, Section 74-1-8(A)(4) and Air Quality Control Act, NMSA 1978, Sections 74-2-1 et seq., including specifically, Section 74-2-5(A) and (B), and Section 74-2-7(A)(l), (B), (C), (D) and (0). 

### [20.2.66.3 NMAC

- N, MO-DY-YR] 20.2.66.4 

### DURATION: Permanent. [20.2.66.4 NMAC

- N, MO-DY-YR] 20.2.66.5 

### EFFECTIVE DATE: MO-DY-YR exceptwhere alater date is cited at the end ofa section. [20.2.66.5 NMAC

- N, MO-DY-YR] 20.2.66.6 

### OBJECTIVE: The objective ofthis part is to specify thebest system of emissions reduction for cotton ginning facilities underthe provisions ofAir Quality Control Act, NMSA 1978 ("the Act"), Section 74-2-7(0), andto assure thatpermits issued under this part assure the maintenance ofnationa1 ambient air quality standards, in accordance with Section 74- 2-5 (A) and (B)(1) ofthe Act and the federal Clean AirAct, Section 110(a). [20.2.66.6 NMAC

- N, MO-DY-YR] 20.2.66.7 

### DEFINITIONS: In additionto the terms defined in 20.2.2 NMAC (Definitions), as used in this part: A. 

### "Bale" means aunit ofmeasurementto denote an amount oflint cottonwith a nominal weight of500 pounds. 

### B. "Class I 

### area" means any federal land areathat is classified orreclassified as class I as described in 20.2.74.108 NMAC. 

### C. "Cotton ginning 

### facility" or 

### "facility" means any facility that separates seed, lint, and trash from raw cotton, andbales lint cotton for furtherprocessing, that will emitno more than fifty (50) tons per year ofany regulated air contaminant for which there is a national ambient air quality standard, andthathas the standard industrial classification code 0724 (cotton ginning) and the North Americanindustrial standard classification code 115111 (cotton ginning). 

### D. "Department" is the state ofNew Mexico environment department. E. "Fugitive emissions" means those emissions that could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

20.2.66 NMAC 

### NMED EXHIBIT 

### #6

### F. "High efficiency cyclone dust collector" means any cyclone type collector ofthe 2D-2D or ID-3D configuration. These designations refer to the ratio ofcylinderto cone length, where D is the diameter ofthe cylinderportion. A 2D-2D cyclone would exhibit a cylinder length of2 x D and a cone length of2 x D, with a ninetypercent (90%) efficiency for total suspended particulates. A ID-3D cyclone would exhibit a cylinderlength of 1 x D and a cone length of3 x D, with aninety-five percent (95%) efficiency for total suspendedparticulates. 

### G. "High pressure exhausts" means the exhaust from all airhandling systems located at a cotton gin that are not defined as 'low pressure exhausts'. 

### H. "Lowpressure exhausts" means the exhaust from systems at a cotton gin that handle air from the cotton linthandling system and battery condenser. 

### I. "Non-attainment" means designatedby the United States environmental protection agency as not meeting one ormore ofthe national ambient air quality standards. J. 

### "Opacity" means the degree to which emissions reduce the transmission oflight and obscure the view ofan objectin the background. 

### K. "Owner or Operator" is anyperson who owns or operates a process orprocess equipment at the source for which coverage under the permithas been granted. 

### L. "20.2.72 NMAC" means the air quality control regulation 20.2.72 NMAC (Construction Permits); that is, Part 72 ofTitle 20, Chapter 2 ofthe New Mexico administrative code. [20.2.66.7 NMAC

- N, MO-DY-YR] 

### 20.2.66.8 [RESERVED] 

### 20.2.66.9 DOCUMENTS: Documents incorporated and cited in this partmay be viewed at the New Mexico environment department, air qualitybureau, 2048 Galisteo Street, Santa Fe, NM 87505. [20.2.66.9 NMAC

- N, MO-DY-YR] 

### 20.2.66.10 to 20.2.66.199 [RESERVED] 

### 20.2.66.200 ISSUANCE OF PERMIT UNDER20.2.72 NMAC: The department shall not deny issuance orrevision ofan air quality constructionpermitunder 20.2.72 NMAC to any cotton ginning facility, as defined in Subsection C of20.2.66.7 NMAC, ifthe permit application and the permit conditions meet the requirements ofthis part. [20.2.66.200 NMAC

- N, MO-DY-YR] 

### 20.2.66.201 PERMIT APPLICATION REQUIREMENTS: Permit applications for each permit issued in accordance with Subsection A of20.2.66.200 NMAC shall: 

### A. meet all requirements for the contents ofpermit applications under Paragraphs (1) through (3), (5) through (15) ofSubsection A of20.2.72.203 NMAC and Subsections B through E of20.2.72.203 NMAC; B. state thatthis partis applicable to the cotton ginning facility; 

### C. propose maximum allowable annual and hourly emissions from the facility, and includeproposed limitations to hours ofoperations and otherlimitations that will result in allowable emissions ofno more than fifty (50) tons per year ofany regulated air contaminant for which there is anational ambient air quality standard; and

20.2.66 NMAC 2

### D. include theproposedbest system ofemissions reduction for the facility, which for purposes ofthis part shall include at aminimumthe controls, limitations, plans and practices set outin 20.2.66.202 NMAC. [20.2.66.201 NMAC

- N, MO-DY-YR] 20.2.66.202 PERMIT REQUIREMENTS: Permits issuedin accordance with 20.2.66.200 NMAC shall include the followingbest system ofemissions reduction, as well as other conditions, includingbutnotlimitedto recordkeeping, monitoring, reporting requirements, and testmethods, as required to ensurethe enforceability ofpermit conditions and applicable requirements. A. Limitations from application: except as modifiedbythe department, the proposed emissionreduction system and limitations specified in the application. B. Emissions control on highpressure exhausts. (1) All emissions from highpressure exhausts shall be controlledbythe use ofa high efficiency cyclone dust collectors (the terms highpressure exhaust and high efficiency cyclone dust collectors are definedin 20.2.66.7 NMAC ). (2) The opacity ofvisible emissions from cyclones shall not exceed twenty percent (20%). C. Emissions control on low pressure exhausts. (1) 

### All emissions from low pressure exhausts (as defined in Subsection H of 20.2.66.7 NMAC ) shall be controlledbythe use ofscreens with amesh size of70 by 70 or finer (U. S. sieve), or the use ofperforated condenser drums withholes not exceeding 0.045 inches in diameter, orwith equipmentofequivalentorhigher design efficiency, as determinedbythe department. (2) The opacity ofvisible emissions from low pressure exhausts shall not exceed twentypercent (20%). D. A fugitive dustmanagementplan thatincludes the following, ormethods at least as effective in controlling fugitive dust. (1) Complete enclosure ofall burrhoppers. (2) Measures to be taken to control fugitive dust emissions from any source, process or operation occurring within the cotton ginbuilding to assure that no fugitive dust emissions to the outside atmosphere from any door, vent, orwindow are visible. (3) Measures to be takento minimize fugitive emissions from the handling, transportation or disposition ofany substance ormaterial thatis likely to be scatteredby the air orwind atthe facility, includingbut notlimited to materials in the gin yard andhaul roads, including all open areas, right-ofways, storagepiles, and vehicles atthe facility. Suchmeasures shallbe sufficientto assure that no visible fugitive dust emissions generated from the property leave theproperty. Emissions maybe controlledby watering, paving and cleaning, surfactants, orotherequivalentmeans. (4) Theposted speed limit for all vehicles on unpavedhaul roads and in unpaved yard areas shall be no morethan 10 miles perhour. E. Requirements for fuel burning equipment. This subsection applies to fuel burning equipment such as driers andhumidifiers, but does not apply to mobile sources (such as loaders, haul trucks, and othervehicles). (1) Any emissions from fuel burning equipment shall not exhibit greaterthan 20 percentopacity.

20.2.66 NMAC 3

### (2) 

### The owneror operator shall use onlythe following fuels: natural gas, liquefied petroleum gas (LPG), propane, orNo.2 diesel fuel with a sulfur content equal to or less than 0.05 percentby weight. (3) 

### The owner or operator shall operate and maintain the equipment such that emissions and opacity limitations in the permit are met. F. 

### Location restrictions. (1) 

### The distance from the cotton gin to the propertyboundary shall be at leastten (10) feet in all directions, orthe distance established in Paragraph (2) ofSubsection F of 20.2.66.202 NMAC, whicheveris greater. (2) 

### The minimum distance (in feet) in all directions from the cotton ginto the propertyboundary shall be calculated as the multiple ofthe square ofthe maximum emission rate (inpounds ofPMlO perhour) and 0.07271 0.2385, 

### plus the multiple ofthe maximum emissionrate (inpounds ofPMlO perhour) and 16.48113 54.0718, 

### minus the value 248.74457 816.0886. (3) 

### The distance from the cotton gin to the nearest existing state park, recreation area, or school shall be at least 0.25 miles. The distance from the cotton ginto the nearest class I area shall be at leastthree miles. G. 

### Maintenance ofequipment. (1) 

### All materials handling systems and control equipment shall be installed and operated as required to assure thatpermit conditions will be met. (2) 

### The owneror operator shall conduct daily visual inspection ofthe material handling systems for leaks, breaks or othervisible signs ofequipmentmalfunctions, and repair such leaks, breaks ormalfunctions in atimelymanner. (3) 

### The owneror operator shall maintain arecord ofthe daily inspections, including any equipmentmalfunctions discovered and corrective action taken to repair the malfunction. [20.2.66.202 NMAC

- N, MO-DY-YR] HISTORY OF 20.2.65 NMAC: Pre-NMAC History: 

### None. History ofRepealed Material: 

### [RESERVED] Other History: 

### [RESERVED]

20.2.66 NMAC 4

### STATE OFNEWMEXICO ENVIRONMENTAL IMPROVEMENT BOARD
PETITION FOR PUBLIC HEARINGTO CONSIDER ADOPTION OF 20.2.66 NMAC

-- COTTON GINS EIB 04-06

NEW MEXICO ENVIRONMENT DEPARTMENT'S BRIEFIN SUPPORT OF ITS MOTION FORTHE BOARD TO RESUME DELIBERATIONS AND REOPEN THE RECORD 1. Introduction. The Environmental ImprovementBoard (EIB) has thepowerto avoid finalizing a regulation itknows to bein error. Ifthe EIB votes to approve aregulation butbefore it takes the actions required to make its decision final (i.e., adopting a Statement ofReasons and publishing theregulation in the New Mexico Register), the EIB learns that the regulation contains amistake, the EIB has the powerto resume its deliberations and reopen the record to correctthe mistake. In regard to the specific facts at issue here, the EIB has thepowerto resume its deliberations and reopen the record to correctthe mistake madeby the Departmentin transferring the formula inNMED Exhibit 5 into the version oftheproposedregulation submittedto the EIB inNMED Exhibit 2. 

### 2. The Board has the powerto reopen the record under section 400.G(4) of the Board's Rulemaking Procedures. Section400.G(4) ofthe Board's Rulemaking Procedures states that the Board mayreopen the hearing on aproposedregulation during deliberations ifthe Board determines that additional evidence is necessary for a proper decision on aproposed regulatory change:

### (4) If, during the course ofdeliberations, the Board determines that additional testimony ordocumentary evidence is necessary for aproper decision ontheproposedregulatory change, the Board may, consistent with therequirements ofdue process, reopenthe hearing for such additional evidence only. 20.1.1.400.G(4) NMAC. In thepresentproceeding, the Boardvoted onthe proposedregulatory change at its October 5, 2004 hearing. The Board still, however, has not adopted a Statement of Reasons orfiled theproposed regulation with the State Records Center andArchives (SRCA). The Boardretainsjurisdiction (andthepowerto act on aregulation) until the regulationis filed with the SRCA. Onlyupon filing with the SRCA does theregulation become final and subjectto appeal. NMSA 1978, §74-2-9.A., B. The Board, accordingly, still hasjurisdictionovertheproposed regulation and can continue its deliberations to make aproper decision onthe proposedregulatory change. The Department's motion informs the Boardthattheproposedregulation in NMED Exhibit2 contains amistake -- the incorrect expression ofthe correct formula for setbackdistances containedinNMED Exhibit 5. The additional evidence the Departmentproposes to admitis arevised version (NMED Exhibit 6) oftheproposed regulation. NMED Exhibit 6 contains a correct expression ofthe correctformula for setback distances developed inNMED Exhibit 5. This additional evidence is "necessary for aproper decision ontheproposedregulatory change." Withoutthe additional evidence and the correction, the Board will be adopting aregulationthatthe Boardknows is incorrect.

2

### The requirements ofdue process canbe satisfiedby serving the motion upon all persons who testified during the October 5, 2004 hearing andbynotifying the public of the motion through the mailing the Boardundertakes ofits meeting agenda. 

### 3. The Board also has implied and inherent powers to act to preventthe adoption ofa regulation the Board knows to contain an error. Administrative agencies have the powers explicitly stated in their enabling statutes andregulations and such additional implied and inherentpowers to implement the purposes ofthe statutes they are charged with implementing. "Itis a fundamental rule ofconstructionthat when apoweris conferredby statute everything necessary to carry outthe power and make it effective and complete will beimplied." Reese v. Dempsey, 48 N.M. 417,424, 152 P.2d 157 (1944); State ex reI. Clancy v. Hall, 23 N.M. 422, 168 P. 715 (1917). Regulations on administrative procedures are especially subjectto the need to exercise suchpowers.


### a. Implied Powers. Regulations on procedural issues cannotprovide for every eventualityin the course ofan administrativeproceeding. Agencies sometimes need to exercise additional powers that are similarto and implied from powers that are specifically authorized. SeeAA Oilfield Service, Inc. v. New Mexico State Corporation Commission, 118 N.M. 273, 881 P.2d 18 (1994); Redman v. Board ofRegents ofNew Mexico School for Visually Handicapped, 102 N.M. 234, 693 P.2d 1266 (1985). In the present case, the Board's Rulemaking Procedures grant the Boardthe express authority to open arecord by holding ahearing, to close the record upon the conclusion ofthe hearing, to allow the record to remain open following the conclusion of

a hearing, and to reopen the record during the course ofdeliberations. As long as the Board retainsjurisdiction ofthe regulation (i.e., before the regulation is filed with the

3

### SRCA), it appears implicitthat the EIB would also have the authorityto reopen the recordto correct amistake (so long as the Board affords parties notice ofits actions). Since the regulation is not final until itis publishedin the New Mexico Register, there would appear to be no reason why the EIB could not exercisethis related, implicit power. 1 

### b. InherentPowers. Courts have also upheld the exercise ofinherentpowers whenthe powers are required to effectuate thepurposes ofthe statute they are charged with implementing. See Bacav. Grisolano, 57 N.M. 176,256 P.2d 792 (1953) (Supreme Court approved the inherentpower ofthe Chiefofthe Division ofLiquor Control to revoke aliquorlicense thathadbeen grantedbymistake onthe grounds the revocation

was necessaryto carry out the purposes ofthe statute); PropertyTax Dept. v. Molycorp, Inc., 89 N.M. 603,605,555 P.2d 903, 905 (1976); Reese v. Dempsey, 48 N.M. 417, 152 P.2d 157 (1944); State ex reI. Clancy v. Hall, 23 N.M. 422, 168 P. 715 (1917). The primary duty ofthe EIB under the Air Pollution Control Actis to prevent or abate airpollution. NMSA 1978, §74-2-5.A. A closelyrelated duty is to adopt regulations "to attain and maintainnational ambient air quality standards andprevent or abate airpollution. NMSA 1978, §74-2-5.B. It seems clearthatproceeding forward to finalize aregulation (withthe adoption ofa Statement ofReasons and thepublication ofaregulation) thatthe EIB knows is mistaken will notprevent airpollution, the primarypurpose ofthe EIB under the AQCA. Indeed, a decision notto actunderthese circumstances would appear to conflictwith the

1 The procedural aspects ofthe conduct ofan agency's proceedings are often considered to be parliamentary in nature and leftto the guidance ofRobert's Rules ofOrder. Indeed, Robert's Rules of Orderprovides for the "reconsideration" ofabody's decision. Robert's Rules ofOrder, Revised, §36 (1996).



### 4

### purposes ofthe AirPollution Control Act. It, 

### therefore, seems reasonable to interpretthe EIB's powers to include thepowerto continue its deliberations and reopen the record for the purpose ofcorrecting the mistake. Indeed, the EIB used its inherentpowerto reconsider arulemaking decision in Kerr-McGee Nuclear Corporation v. New Mexico Environmental ImprovementBoard, 97 N.M. 88,637 P.2d 38 (1981). KerrMcGee involved the exercise ofthe Board's power to reconsiderradiationprotectionregulations. After adoption ofthe regulations on November 18, 1979, Kerr-McGee filed apetitionwiththe EIB on March 14, 1980 asking the EIB to reconsiderits decision and to schedule time on its April agenda for further oral argument. Inresponse, the EIB voted to "suspend" the regulations until the April meeting, but atthe April meeting, the EIB failed in atie vote to approve the lifting ofthe suspension. The court addressed the issue ofwhetherthe suspension had failed to have been lifted orwhetherthe suspension merely expired atthe April meeting. The Board's authorityto reconsiderthe regulations was presumed and not challenged. Underthe facts ofthepresent case, ifthe EIB does notreopen its deliberations and proceeds instead with the adoption ofa statement ofreasons and the publication of the regulation, the new regulation will create confusion and forestall efforts to control air pollution. As was noted atthe October 5,2004 hearing, the newly-adopted regulations will become part ofthe New Mexico State Implementation Plan (SIP) which is subject to review and approval bythe U.S. Environmental Protection Agency (EPA). Ifthe regulation approved bythe Board is inconsistent (i.e., less stringent) thanthe formula developed in the monitoring study (NMED Exhibit 5), EPA will not approve the

5

### regulation's inclusion inthe SIP. This prospectwill castimmediate doubt on the enforceability oftheregulations and onthe validity ofanypermits issued underthem. As things stand now, certain cotton gins are waiting for the adoption ofthe new regulations to obtainpermits. Whenproperly adopted, theproposedregulations will promote the use ofthe airpollution controls specified in the regulation and the implementation ofthe setback distances. Thesemeasures will help control airpollution

-

- theprimary goal ofthe EIB's airpollutionregulations. Ifthe EIB finalizes the mistaken regulation, the confusionregarding the validity oftheregulations will likely delay the installation ofthe control equipmentrequiredby the regulations causing the continuation ofcurrentlevels ofairpollution and potentially discourage existing companies from making modifications that would require new permits and new companies from building facilities requiring permits. All ofthese results are in conflictwiththepurposes ofthe AQCA. As aresult, thepowerto reopen the record to correct a regulationbefore ithas become a final decision canbe considered an inherentpower ofthe EIB. 

### 4. The Board's authority to reopen the record to correct mistakes is similar to the authority under Rule 1-060 ofthe New Mexico Rules ofCivil Procedure. The authority to continue the Board's deliberations and to reopenthe record to gatherthe additional evidencerequired to correctmistakes is similar to the authority courts exerciseunderthe New Mexico Rules ofCivil Procedure. Rule 1-060 grants courts the authority to reopen therecord to correct even final decisions for mistakes and otherreasons. Rule 1-060 NMRA. Although the Rules ofCivil Procedure do not apply directly to administrative agencies, they do illustrate theprevalence oftheprinciple thatthepowerto reopen a



### 6

### record to correctmistakes is necessary to effectuate thepurposes ofdecision-making bodies. 5. Conclusion. Because the EIB has not adopted a StatementofReasons and published the regulation in the New Mexico Register, it still hasjurisdictionover the Cotton Gin regulations. The Department's Motion informs the EIB thatthe regulation itvoted on at its October 5, 2004 meeting contains an error. The Departmentbelieves thatthe EIB has the explicit and implicit powerto act to correct the regulation while ithas the chance to do so, and the Departmentis requesting thatthe errorbe corrected. There are no apparent legal orpractical reasons to proceed with the actions (i.e., adoption ofa Statement of Reasons andpublication ofthe mistaken regulation) required to finalize the mistaken regulation, to thereby create confusion in the implementation ofthe regulation and then to start an entirelynewrulemaking proceedingprocess to correctthe regulation ifthe correction canbe accomplishednow.
Respectfully submitted,
Ashley C. Schannauer Assistant General Counsel

7

### Certificate ofService 

### I certifythat on February 7,2005 a copy ofthe foregoing Briefwas sentvia first class mail to: Ed Hughs Southwestern Cotton Ginning Research Laboratory 300 East CollegeDrive P.O. Box 578 MesillaPark, NM 88047 CeciliaAbeyta New Mexico Farm and Livestock Bureau P.O. Box 20004 Las Cruces, NM 88004

Ashley C. Schannauer Assistant General Counsel

8BILL RICHARDSON GOVERNOR 

### State of NewMexico ENVIRONMENTDEPARTMENT Office of GeneralCounsel HaroldRunnelsBuilding 1190St. FrancisDrive, P.O. Box26110

Santa Fe, NewMexico 87502-6110

Direct Telephone (505) 827-6891 Facsimile (505) 827-1628 RONCURRY SECRETARY 

### -February24; 2005 BarbaraClaire BoardAdministrator Environmental ImprovementBoard 1190 St. Francis Drive SantaFe, NM 87502 Re: Cotton GinRegulation, Em 04-06 DearMs. Claire: Please substitutethe enclosedpage 3 intheDepartment's Motion fortheBoardto Resume Deliberations and ReopentheRecord inthe aboveproceeding. The substitutepage does not changethe Department'sproposal to have the Board adoptNMED Exhibit6 (attachedto the original Motion), anditdoes notchangethetext ofNMED Exhibit

### 6. The changesrelate merelyto theDepartment's description ofthemistake thattheDepartmentis proposingto correct. Thefollowing arethe changes: Paragraph 10: Thenumber 0.0771 is changedto 0.07271. Paragraph 11: Thenumber0.0771 is changedto 0.07271 Paragraph 12: Thenumber0.02385 is changedto 0.2385 The substitutepagehas also been faxed to thepeoplewho presentedtestimony atthe October 5, 2004 hearing. Thankyou for yourcooperation. Pleaseletmeknow ifyouhave anyquestions. 

### Verytrulyyours,
Ashley C. Schannauer


### cc: Ed Hughs CeciliaAbeyta MaryUhl, 

### AirQualityBureau

### 9. The monitoring study expressedthe formula for calculating setback distances inmeters, and the Departmentintendedto express the setback distances in the regulations in feet. In preparingNMED Exhibit 2, the Department included a formula thatlabeled the calculations produced in the formula in "feet" butused the same coefficients from the metric formula in the monitoring study. 10. The formula in Figure 8 ofthe monitoring study technical support document (NMED Exhibit 5) is correct: 

### y= -248.74457 

### + 16.48113 X 

### + 0.07271 X2 

### [inunits ofmeters] 11. The formula inNMED Exhibit 2 contains the error. It 

### attempts to express the formula in feet, but 

### it uses the same metric coefficients as wereused in the monitoring study: 

### y= -248.74457 

### + 16.48113 X 

### + 0.07271 X2 

### [inunits offeet] 12. The correct formula is statedbelow. The correction is made merelyby multiplying the metric coefficientsbythe conversion factor of3.28083 to convert from meters to feet: 

### y= -816.0886 

### + 54.0718 X 

### + 0.2385 X2 

### [inunits offeet] 13. When corrected, section 202.F(2) oftheproposed regulation shouldread
as follows: (2) The minimum distance (in feet) in all directions from the cotton gin to thepropertyboundary shall be calculated as the multiple ofthe square of the maximum emissionrate (inpounds ofPM10 perhour) and 0.07271 0.2385, plus the multiple ofthe maximum emission rate (inpounds of PMI0 perhour) and 16.48113 54.0718, minus the value 248.74457 816.0886. (ProposedNMED Exhibit 6, attachedhereto).



### 32-25-05; 12:40PM;USDA ARS 

# USDA 

# iiiIIIi
United States Department ofAgriculture Research, Education and Economics Agricultural Research Service February 24, 2004 Ms. GayDillingham, Chair Environmental ImprovementBoard 1190 St. Francis Drive Santa Fe, New Mexico 87502 Re: Public HearingRegarding Cotton Gins Dear Ms. Dillingham: ;5055251076 # 2/

On October 5, 2004, I testified at the Environmental ImprovementBoard hearing to consider a new regulation for cotton gins. You may recall that as an employee ofthe USDA, Agricultural Research Service, I was involved as a technical advisorto the workgroup that developed the regulation, and testified in support ofthe regulation as proposedby the Environment Department. Ithas come to my attention that this regulation has not yet come into effect due to questions regarding atypographical error in one ofthe exhibits. I would like to assure you that, when I gave my supporting testimonyregarding this regulation, I did so with the understanding thatNMED Exhibit2 was the correct version ofthe regulation, and was consistent withthe Monitoring Study report (NMED Exhibit 5). My understanding is that the typo was insertedinto the exhibit at the last minute due to confusionbetween feet (the units inthe regulation) and meters (the units inthe report). Because the regulationthat was sentto the work group about a weekpriorto the hearing was correct, I didn't know about the typo at the time ofthe hearing. I encourage you to take the appropriate action necessary to bring this regulation into force. I believe it to be correct and support the language contained inthe text ofNMED Exhibit 6, attached to the Department's motion relating to Cotton GinRegulation, EIB 04-06, and as modified by the February 24, 2005 letterfrom Ashley C. Schannauerto Barbara Claire. I urge you to act on this matter as soon as possible. It will greatlybenefitMesa Farmer's Cooperative Gin inparticular andthe New Mexico ginning industry in general to have this regulation in place. The regulationgives clearguidance to NewMexico gins as to how they may meetparticulate emission control requirements. Time is importantbecause boththe NMED andMesaFarmer's Coop Board desire to have their approvedpermitinplace before the next ginning season which will startthis September. This gives only sevenmonths to get all the paperworkcompleted, approved andthe permitinplace. Thank you in advance for your cooperation. Please letme know ifyou have any questions.

cc: CeciliaAbeyta, FarmBureau Gregory Green, Secretary, EIB Harold Tso, Member, EIB Ken Marsh, Member, EIB Tracy Hughes, Attorney, NMED Clifford Stroud, Vice Chair, EIB Gwen Wardwell, Member, EIB Dolores Herrera, Member, EIB Mary Smith, Attorney, EIB SandraEly, Bureau Chief, Air Quality Bureau

Southern Plains Area Southwestern Cotton Ginning Research Laboratory. 300 East College Drive. P.O. Box 578 Mesilla Park, NM 88047 Voice: (50S) 526-6381 • FAX: (505) 525·1076. E-mail: swcgrl@nmsu.edu

### STATE OF NE\" MEXICO**ENV1RONMENTALI~ROVEMENTBOARD** 

### PETITION FOR PUBLIC HEARING TO CONSIDER ADOPTION OF 20.2.66 NMAC -- COTTON GINS 

## Em 04-06

STATEMENT OF REASONS FOR ADOPTION 

### THIS MATTERhaving come before theEnvironmental ImprovementBoard (Board) upon the Petition ofthe NewMexico EnvironmentDepartment (NMED orDepartment) to consider adoption of20.2.66 NMAC, Cotton Gins, the Board hereby FINDS: 1. 

### The NMED filed aPetition for aPublic Hearing to ConsiderAdoption of20.2.66 NMAC, Cotton Gins ("Cotton Gin Regulation) in Title 20, Chapter2 ofthe NewMexico Administrative Code on July 19,2004. 2. The Board scheduled a hearing inthis matter for October 5,2004. Notice ofthe Public CommentPeriod and Hearing for the proposed regulation was published in the New Mexico Register on August 31,2004. 3. On September 24,2004, NMED filed aNotice ofIntentto Present Technical Testimony. TheNotice ofIntentlisted three potential witnesses: Ms. Lany Weaver, Mr. 

### GiDong Kim and Ms.Mary UbI. The Notice ofIntent also identifiedNMED's proposed exhibits. 4. On September 24, 2004, Ed Hughs, Research Leader and Agricultural Engineerof the U.S. Department ofAgrIculture also filed aNotice ofIntentto Present Technical Testimony. Mr. 

### Hughs indicated he wouldbe testifying in support ofthe proposal onbehalfofthe New Mexico Cotton Ginners Association. 5. A hearing was convened in this matter on October 5, 2004, before a quorum of the Board. Ms. GwenWardwell, Board member, presided as the designated Hearing Officer.

### 6. Atthe hearing, the NMED presented oral testimony and the following exhibits: Exhibit Title NMED Exhibit 1 NMED Exhibit 2 NMED Exhibit 3 NMED Exhibit4 NMED Exhibit 5 Proposed 20.2.66 NMAC Revised Proposed 20.2.66 NMAC New Mexico Air Quality Control Act Testimony ofLany Weaver Cotton Gin Study Report 7. Ms. Lany Weaver, anEnvironmental Analyst in the Control Strategies Section of the NMED Air Quality Bureau, providedtechnical testimony in support ofthe Cotton Gin Regulation. Ms. Weaver submitted written testimony (NMED Exhibit 4) and oral testimony. Ms. Mary Uhl answered questions from theBoard. 8. EdHughs presented written testimony and answered questions from the Board. Mr. 

### Hughs stated his support for the Cotton Gin Regulation. 9. As Ms. Weavertestified, the Cotton GinRegulation implements the requirements ofthe 2003 legislative amendments to the Air Quality Control Act (AQCA) (NMSA, 1978 §§74- 2-1 et seq.) (NMED Exhibit 3). The legislative amendments provided for an alternative procedure for owners ofcertain cotton gins (i.e., those emitting 50 tons peryear orless ofa pollutant subjectto ambient air quality standards) to obtain air quality permits thatis simpler than the currentprocedures. The legislative amendments state thatthe EnvironmentDepartment may not deny an application for a construction permit ifthe applicant proposes "use ofthe best system ofemissions reduction currently in use by cotton gins in the United States, as specified by regulation ofthe environmental improvementboard." NMSA, 1978 §74-2-7(O)(2003). (NMED Exhibit 3). 10. The regulations that currently govern the permitting process for cotton gins are codified in 20.2.72 NMAC

- Construction Permits ("Part 2.72"). Part 2.72 prohibits the

### construction ormodification ofair pollution sources without apermit. To obtain a permitor revise an existing permit, a source must show that emissions from the facility will notviolate ambient air quality standards. Part 2.72 generally requires thatthis showing be made with air dispersion modeling. Ifthe owner or operator ofa facility cannot showthatthe ambient impacts ofthe facility's emissions will not exceed air quality standards, then the Department cannot issue thatfacility an air quality permit. (NMED Exhibit4). 11. The proposed Cotton Gin Regulation establishes an alternative permitting procedure that does not require air dispersion modeling, as envisionedby the 2003 legislative amendments. The regulation prescribes minimum technical standards (i.e., permit application requirements, gin control equipment requirements, opacity limitations, and requirements for a fugitive dust managementplan) to minimize particulate matter emissions and setback distances to ensure the maintenance ofambient air quality standards adjacentto cotton gin properties. (NMED Exhibit4). 12. The minimumtechnical standards are typical ofstandards for gins across the country. These standards are consistent with the definition of"best system ofemissions reduction" in the 2003 statutory amendments. (NMED Exhibit4). 13. A monitoring study performedby the Department, however, indicates thatthe minimum technical standards alone are not sufficient in all cases to preventthe exceedance ofair quality standards (NMED Exhibit 5). Because the specification ofsuch standards alone will not satisfy the state's duty to ensure that its State Implementation Plan, ofwhich the proposed regulation is apart, ensures the attaimnent and maintenance ofNAAQS and NMAAQS, the Department also proposed the inclusion ofminimum setback distances from the gin to the property boundary. (NMED Exhibit 4).

### 14. The minimum setback distances are based upon the monitoring study conducted by the Department atthe MesaFarmers Cotton Gin in Las Cruces, New Mexico, from September 2003 through January 2004, which covered the entire cotton-ginning season. This is consistent with Appendix W ofthe federal rule 40 CFR 51, which allows for the use ofarobust monitoring study in lieu ofa modeling analysis where there is no applicable model. (NMED Exhibit4). 15. The initial draft ofthe proposed Cotton Gin Regulation (NMED Exhibit 1) was replaced at the October 5 hearing with a revised version ofthe proposed regulation (NMED Exhibit 2). The revised version was intended to incorporate the setback distances contained in the Department's monitoring report (NMED Exhibit 5). NMED Exhibit 2 also contained preliminary feedback from the State Records Centerregarding regulatory formatting. (NMED Exhibit4). 16. The NMED requestedthatthe Board adoptthe proposedPart 66 to 20.2. NMAC and approve the amendment to the New Mexico State Implementation Plan (SIP) to incorporate the resulting regulatory changes. Further, to address a comment received from the U.S. Environmental Protection Agency (USEPA) on the day ofthe hearing, the NMED requested that the words "and applicable requirements" be addedto the end ofthe first sentence in section 202 ofthe proposed regulation. (Tr. 30-31). Finally, the NMED requested that itbe granted permission to correcttypographical errors and make any additional non-substantive formatting changes requested by the StateRecords and Archives Centerpriorto filing the rule (Tr. 31-32; NMED Exhibit 4). 17. Afterthe conclusion ofthe testimony, the Board approved the Cotton Gin Regulation in accordance with the Nl\.1ED's request.

II

### 18. Afterconclusion ofthe hearing, the NMED noticed an error inNMED Exhibit 2. The Monitoring Study (NMED Exhibit 5) on which NMED Exhibit2 was based described the recommended setback distances in a formula expressed in meters and statedthatthe formula will be expressed in feet in the regulation. When transferring the formula to NMED Exhibit 2, however, the formula was mistakenly not expressed in feet. 19. Before the Board acted to finalize the Cotton Gin Regulation through the adoption ofthe regulation and the publication ofthe regulation in the NewMexico Register, the NMED,
on February 7, 2005, filed aMotion for the Board to Resume Deliberations and Reopenthe Record pursuantto 20.1.1.400.G(4) NMAC. TheMotion askedthe Boardto resume deliberations and reopen the record for the purpose ofapproving a correctedversion (proposed NMED Exhibit 6) ofthe proposed Cotton Gin Regulation. The Motion was servedupon the people who testified atthe October 5,2004 hearing, and notice ofthe scheduled consideration of the Motion at the Board's March 1, 2005 meeting was included in the agenda for the meeting sentby the Boardto the public. 20. In response to the NMED's Motion, Ed Hughs, who testified atthe October 5, 2004 hearing, sent a letterto the Board, informing the Board that he agreed thatthe mistake in NMED Exhibit 2 was a typographical error. He requested the Board to approve the correctly stated version ofthe regulation inNMED Exhibit 6. 21. On March 1, 2005, the Board considered the NMED's Motion to Resume Deliberations and Reopen the Record andvoted to resume deliberations and reopen the record. The Boardvoted to admitNMED Exhibit 6 into the record and then voted to adoptthe regulation proposed in NMED Exhibit 6.

### The Board hereby CONCLUDES: 

### 1. As required by the federal Clean Air Act, the USEPA has developed National Ambient Air Quality Standards (NAAQS) representing the maximum concentrations of pollutants in the ambient airthat are consistent with public health, including the consideration of impacts on sensitive populations, such as the very young, the elderly, andthose with respiratory conditions. NAAQS standards are in effectfor PMlO and PM2.5. 2. The federal Clean Air Act requires state and local air qualityjurisdictions to develop State Implementation Plans ("SIPs") to assure thatthe air quality standards are met. SIPs are the body ofstate statutes, regulations and policies that states use to implementthe Clean AirAct. The New Mexico SIP includes aNew Mexico Ambient Air Quality Standard for total suspended particulates (TSP) establishedby the EIB. 3. The USEPA's regulations (40 CFR 51.112) require each state to demonstrate that its SIP contains legally enforceable provisions adequate to attain and maintain ambient air quality standards. 4. The NewMexico SIP and all revisions to it are subjectto review and approval by the EIB and the USEPA. 5. The Board has the authority to "adopt, promulgate, publish, amend andrepeal regulations consistent \\lith the Air Quality Control Act to attain and maintain national ambient air quality standards and prevent or abate air pollution " NMSA, 1978 §74-2-5.B. 6. The Cotton GinRegulation will meet the requirements to establish the "Best System ofEmissions Reduction" for cotton gin facilities consistent with the 2003 legislative amendments to the Air Quality Act. For cotton gins that comply with the minimum equipment requirements but still pose the potential to cause the exceedance ofair quality ambient standards,

### additional protections are required. The setback distances proposedby the Department assure thathealth-based state and national ambient air quality standards will be maintained. 7. The Cotton Gin Regulation is in the public interest, because it satisfies the requirements ofthe 2003 legislative amendments to the Air Quality Control Act and because it enables the NMED to ensure the attainment and maintenance ofambient air quality standards. 8. The Cotton Gin Regulation is reasonable given the character and degree ofinjury to or interference with health, welfare, visibility and property causedby airpollution. 9. The Cotton Gin Regulation is technically practicable and economically reasonable. 10. The errorin NMED Exhibit 2 is acknowledged and the correctedversion ofthe regulation in N1v1ED Exhibit 6 shouldbe approved. 11. The effective date ofregulations approved by the Board is no soonerthan thirty days afterthe filing ofthe Cotton Gin Regulation underthe State Rules Act. NMSA, 1978 §74- 1-9.G. The Boardtherefore ORDERS: 1. The Cotton Gin Regulation as proposed by the DepartmentinNMED Exhibit 6, to be codified in Title 20, Chapter2, Part 66 NMAC and with any appropriate formatting or other changes necessary to file this regulation with the NewMexico State Records Center, is hereby adopted. 2. TheNewMexico SIP is hereby amended to incorporate the Cotton Gin Regulation approved in this Order. 3. The Cotton GinRegulation will become effective on April 7,2005.

### APPROVED

# =A~ Chairperson Environmental ImprovementBoard Dated this day of

# /fV} t::.{

# L ,2005.

o

## STATEOFNEWMEXICO ENVIRONMENTAL IMPROVEMENTBOARD

IN THE l\1ATTER OF THE PETITION FOR PUBLIC HEARING CONSIDERADOPTION OF 20.2.66 NMAC - COTTON GINS

CERTIFICATE OF SERVICE NO. EIB-04-06

I hereby certify that the foregoing Statement of ReasonsforAdoption 

### in the above captioned case was hand delivered to Ashley C. Schannauer, Assistant General Counsel, New Mexico Environment Department, Runnels Building, 1190 St. Francis Dr, SantaFe, NM 87502 on March 17,2005. A copy will beprovided to the Environmental Improvement Board members at the next meeting, scheduled for AprilS, 2005. I hereby certifythat on the 1

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### day ofMarch, 2005 atrue and correct copy ofthe attached Statement of ReasonsforAdoption 

### was sentby first class mail to: Ed Hughes Southwestern Cotton Ginning Research Laboratory 300 East College Dr POB 578 Mesilla Park, NM 88047 Cecilia Abeyta New Mexico Farm and Livestock Bureau POB 20004 Las Cruces, NM 88004

Barbara Claire, Administrator Environmental Improvement Board 1190 St. Francis Drive, Room N-2150 SantaFe, New Mexico 87502 (505) 827-2425 Phone (505) 827-2836 Fax