F:ECEIVED

zn05 MAY -4 PM 2: 32

State ofNew Me*iooL ."F;:AiRS DiVISION

Office ofthe Governor

Bill Richardson

Governor

April 25, 2005

Dear Mayor Greene:

Mayor Richard Greene

Regional Administrator

U.S. Environmental Protection Agency, Region 6

1445 Ross Avenue

Dallas, TX 75202-2733

l\A SPEC ASST _.

On behalf ofthe New Mexico Environment Department (NMED), I am plleallea'to submit

to the Environmental Protection Agency (EPA) the enclosed revisions to the State

Implementation Plan. This revision includes an amendment to the New Mexico Air

Quality Control 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 oft:rent and Emissions Inventory Requirements, and 20.2.75 -

Construction Permit Fees. The hearing records for these SIP revisions are attached,

which include the filed regulations, transcripts, exhibits, public notices, affidavits of

publication, notices ofintent to testify, and public comments.

If there are any questions concerning this SIP submittal, please contact Mary Uhl, Acting

Air Quality Bureau Chief, at (505) 955-8086.

Sincerely,

Ik'<?'~·.( Bill Richardson

Governor ofNew Mexico

cc: Tom Diggs, EPA Region 6

David Neleigh, EPA Region 6

Ron Curry, NMED, Cabinet Secretary

Mary Uhl, NMED, Air Quality Bureau

State Capitol • Room 400 • Santa Fe, New Mexico 87501 • 5°5-476-2200 • www.governor.state.nm.us
FILED V/iTH

STATE RECO~DS (~Fi! TER

2005 Kp.R - 2 PH I: If 8

NMAC TRANSMITTAL FORM

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No x Yes

Name:

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Chair

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Date Si ned
TITLE 20

CHAPTER 2

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 or modifY a cotton ginning facility as defmed in this

part, except as otherwise provided by this part.

[20.2.66.2 NMAC - N, 04/07/05]

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, 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 at the end of a 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 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 under this part assure the maintenance of national 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).

[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 ofmeasurement to denote an amount oflint cotton with a nominal weight of

500 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 of any

regulated air contaminant for which there is a national ambient air quality standard, and that has 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.

E. "Fugitive emissions" means those emissions that could not reasonably 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 ID3D configuration. These designations refer to the ratio of cylinder to cone length, where D is the diameter ofthe

cylinder portion. 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 suspended particulates. A ID-3D cyclone would exhibit a cylinder length

of I x D and a cone length of 3 x D, with a ninety-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

cotton lint handling system and battery condenser.

I. "Non-attainment" means designated by the United States environmental protection agency as not

meeting one or more ofthe national ambient air quality standards.

J. "Opacity" means the degree to which emissions reduce the transmission oflight and obscure the

view of an object in the background.

20.2.66 NMAC
K. "Owner or operator" is any person who owns or operates a process or process equipment at the

source for which coverage under the permit has 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 part may be viewed at the New

Mexico environment department, air quality bureau, 2048 Galisteo Street, Santa Fe, 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 of an air quality construction permit under 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 meet the 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 of permit applications under Paragraphs (I) through (3), (5)

through (I 5) of Subsection A of20.2.72.203 NMAC and Subsections B through E of20.2.72.203 NMAC;

B. state that this part is applicable to the cotton ginning facility;

C. propose maximum allowable annual and hourly emissions from the facility, and include proposed

limitations to hours of operations and other limitations that will result in allowable emissions of no more than fifty

(50) tons per year of any regulated air contaminant for which there is a national ambient air quality standard; and

D. include the proposed best system of emissions reduction for the facility, which for purposes ofthis

part shall include at a minimum the controls, limitations, plans and practices set out 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 of emissions reduction, as well as other conditions, 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 emission

reduction system and limitations specified in the application.

B. Emissions control on high pressure exhausts.

(1) All emissions from high pressure exhausts shall be controlled by the use ofa high 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 of visible 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 of20.2.66.7 NMAC ) shall

be controlled by the use ofscreens with a mesh size of 70 by 70 or finer (United States sieve), or the use of

perforated condenser drums with holes not exceeding 0.045 inches in diameter, or with equipment of equivalent or

higher design efficiency, as determined by the department.

(2) The opacity of visible emissions from low pressure exhausts shall not exceed twenty percent

(20%).

D. A fugitive dust management plan that includes the following, or methods at least as effective in

controlling fugitive dust.

(1) Complete enclosure of all burr hoppers.

(2) Measures to be taken to control fugitive dust emissions from any source, process or operation

occurring within the cotton gin building to assure that no fugitive dust emissions to the outside atmosphere from any

door, vent, or window are visible.

20.2.66 NMAC 2
(3) Measures to be taken to minimize fugitive emissions from the handling, transportation or

disposition of any substance or material that is likely to be scattered by the air or wind at the facility, including but

not limited to materials in the gin yard and haul roads, including all open areas, right-of ways, storage piles, and

vehicles at the facility. Such measures shall be sufficient to assure that no visible fugitive dust emissions generated

from the property leave the property. Emissions may be controlled by watering, paving and cleaning, surfactants, or

other equivalent means.

(4) The posted speed limit for all vehicles on unpaved haul roads and in unpaved yard areas shall be

no more than 10 miles per hour.

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 other vehicles).

(1) Any emissions from fuel burning equipment shall not exhibit greater than 20 percent opacity.

(2) The owner or operator shall use only the following fuels: natural gas, liquefied petroleum gas

(LPG), propane, or No.2 diesel fuel with a sulfur content equal to or less than 0.05 percent by 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 ten (10) feet in all

directions, or the distance established in Paragraph (2) ofSubsection F of20.2.66.202 NMAC, whichever is 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 of PM10 per hour) and 0.2385,

plus the multiple ofthe maximum emission rate (in pounds ofPMIO per hour) and 54.0718, minus the value

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 gin to the nearest class I area shall be at least three miles.

G. Maintenance of equipment.

(1) All materials handling systems and control equipment shall be installed and operated as required

to assure that permit conditions will be met.

(2) The owner or operator shall conduct daily visual inspection ofthe material handling systems for

leaks, breaks or other visible signs of equipment malfunctions, and repair such leaks, breaks or malfunctions in a

timely manner.

(3) The owner or operator shall maintain a record ofthe daily inspections, including any equipment

malfunctions discovered and corrective action taken to repair the malfunction.

[20.2.66.202 NMAC - N, 04/07/05]

HISTORY OF 20.2.66 NMAC: [RESERVED]

20.2.66 NMAC 3
BILL RICHARDSON

Governor

July 28, 2003

Dear Sir or Madam;

State ofNew Mexico

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

Deputy Secretary

The New Mexico Environment Department will be proposing a new air quality regulation to

apply to cotton ginning facilities. If adopted, the regulation would be called 20.2.66 NMAC -

Cotton Gins, also referred to as 'Part 2.66'. Attached to this letter are the draft Part 2.66 and a

question-and-answer document that describes the regulation, the issues relevant to the regulation,

and how and to whom you may provide comments.

The regulation was developed in response to amendments last year to the Air Quality Control Act

NMSA 1978. The 2003 amendments to Sections 74-2-7(C) and (0) ofthe Act alter the process,

for issuing permits for cotton gins emitting 50 tons per year or less of a pollutant subject to

ambient air quality standards, by revising the grounds on which the Department may deny a

permit for such facilities. Specifically, the revised Act states that the Department may not deny

an application for a construction permit ifthe applicant proposes "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

minimum required effectiveness ofsuch a system. Part 2.66 includes the Environment

Department's proposed regulation on this issue.

The Environment Department will be appearing before the Environmental Improvement Board

on August 12, 2004 to request a hearing for the Board's consideration of Part 2.66. We anticipate

that the hearing will be set for October 5, 2004 in Las Cruces, New Mexico. I encourage you to

submit comments and questions about the regulation to Lany Weaver at the 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 contact Environmental Improvement Board secretary Geraldine

Chavez at (505) 827-2425.

Thank you for your interest in New Mexico's air quality.

raEly

Air Quality Bureau Chief
New Mexico Environment Department

Questions and Answers about Proposed 20.2.66 NMAC - Cotton Gins

July 28, 2004

What is 20.2.66 NMAC - Cotton Gins?

Proposed 20.2.66 NMAC - Cotton Gins, if adopted by the New Mexico Environmental

Improvement Board, would be a new Part (regulation) in Title 20, Chapter 2 ofthe New Mexico

Administrative Code (NMAC). In this document it is referred to as 'Part 2.66'. Contact

information may be found at the end ofthis document. Copies ofthe proposed regulation may

be found on the Department's web site at www.nmenv.state.nm.us/aqb/prop regs.html.

What does Part 2.66 do?

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 under the usual

air quality permit process without invoking Part 2.66. Ifthey do invoke Part 2.66 in their permit

application (see Section 201 of Part 2.66), they will not be required to perform a dispersion

modeling analysis ofthe air quality impacts oftheir emissions. However, in doing so they accept

the requirements of Part 2.66, which include control equipment requirements, opacity

limitations, a fugitive dust management plan, and a minimum setback distance from the gin to

the property line.

Why is the Environment Department Proposing Part 2.66?

The regulation was developed in response to amendments last year to 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) alter the process for issuing permits for cotton gins emitting 50

tons per year or less of a pollutant subject to ambient air quality standards by altering the

grounds on which the Environment Department may deny a permit for such facilities.

Specifically, the revised AQCA states that the Environment Department may not deny an

application for a construction permit ifthe applicant proposes "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

minimum required effectiveness ofsuch a system. Part 2.66 includes the Environment

Department's proposal on this issue for the Environmental Improvement Board's consideration.

What is the Exact Language o/The 2003 Air Quality Control Act Amendments?

The introductory line of Section 74-2-7(C) now reads: "Except as provided in Subsection 0 of

this section, the department or the local agency may deny any application for... ". The new

Subsection 0 is: "The department may not deny an application for a construction permit for a

cotton gin ifthe applicant proposes use ofthe best system of emissions reduction currently in use

1
by cotton gins in the United States, as specified by regulation ofthe environmental improvement

board, and the cotton gin has a potential emission rate, considering the use ofthe proposed

emissions reduction system and the proposed hours ofoperation, 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."

What Are The Other Statutory And Regulatory Requirements That Govern Part 2.66?

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 of Section 74-2-5(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 commenter has 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.

What Has the Environment Department Proposed As The Best System OfEmissions Control?

Part 2.66 requires the use of control equipment similar to those listed in Section 0 ofAir Quality

Control Act for exhaust air from the gin, requires effective management practices to control

fugitive dust from the building and gin yard, limits the opacity of emissions, 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 Valley Unified Air Pollution Control District in central California, Maricopa County in

Arizona, and the state ofNorth Carolina each have or have proposed the use of cyclones on all

emissions points; such equipment controls are more stringent than those required under Part

2.66. In addition, North Carolina's requirements for control offugitive dust are more

prescriptive than those in Part 2.66. However, the Environment Department believes that the

2
proposed combination of control equipment, fugitive dust management plan and setback

distances strike the best balance between stringency and flexibility while continuing to maintain

ambient air quality standards.

Why Not Require More Stringent Equipment Controls And/Or Drop The Setback Distances?

Under the revised Air Quality Control Act, all gins that will emit up to 50 tons per year of

particulate matter may use this regulation to facilitate their Part 2.72 permit application process.

As a result, the Environment Department's evaluation of ambient air quality impacts must

assume that the worst-case scenario is that of a gin emitting 50 tons per year. The worst-case

emissions, and thus the worst-case ambient air impacts, will be the same regardless ofwhether

the scenario is created by a large gin with very efficient control equipment, or a smaller gin with

less efficient control equipment. In response, the Environment Department is proposing

emissions controls typical of gins across the country, and addressing ambient air quality impacts

by including the minimum distance that would be needed between a 50 ton per year gin and its

property boundary in order to meet air quality standards.

How Should the Ambient Air Quality Impacts be Evaluated/or Cotton Gins?

The standard practice for predicting the ambient air impacts from emission of air pollutants is by

use of computer-based dispersion modeling conducted at the time of permit issuance, based upon

information presented in the permit application. The U. S. Environmental Protection Agency

recommends (under 40 CFR 51 Appendix W) the use ofthe computer model ISCST3 to

determine such impacts. However, the ISCST3 model was developed and evaluated with data

from tall power plant stacks, which have significantly different stack parameters than cotton

gins. For example, a power plant stack emits a high volume of varied pollutants at a high

temperature and high velocity. Cotton ginning operations emit particulate matter from small

diameter cyclone stacks that are 18-30 feet in height with relatively low stack velocity and

temperatures only slightly above ambient.

Dispersion modeling for cotton gin facilities in New Mexico using ISCST3 predicts ambient air

impacts that exceed the 24-hour National Ambient Air Quality Standard for PMIO (particulate

matter with diameters of 10 microns or less). However, at least two short-term studies have

demonstrated that ISCST3 over-predicts the 24-hour PMIO concentrations from cotton gins.

Appendix W of40 CFR 51 allows for the use of a robust monitoring study in lieu of a modeling

analysis where there is no applicable model. The Environment Department developed a plan for

a robust monitoring study for the 2003 ginning season at Mesa Farmers Cotton Gin to determine

concentrations ofPMIO associated with a large ginning facility. The plan was reviewed by the

Environmental Protection Agency for adequacy to determine maximum concentrations from

cotton gins for comparison with federal and state ambient air quality standards. The

Environmental Protection Agency provided grant funding for the project and Mesa Farmers

Cotton Gin and the U.S. Department ofAgriculture Cotton Ginning Laboratory in Las Cruces

provided support to the study. The study was conducted at the Mesa Farmers Cotton Gin in Las

3
Cruces, New Mexico, from September 2003 through January 2004, which covered the entire

cotton-ginning season.

The setback distances in Part 2.66 are based upon the results ofthis monitoring study. The

evaluation ofthe data has included extrapolation by use ofdispersion modeling.

How Can People And Organizations Provide Comments Regarding Part 2.66?

The Environment Department will be appearing before the New Mexico Environmental

Improvement Board on August 12,2004 to request a hearing for Part 2.66. We anticipate that

the hearing will be set for October 5, 2004 in Las Cruces, New Mexico. Prior to the hearing, the

public may submit comments and questions to Lany Weaver at the above address. She may also

be reached at (505) 955-8090 or at lany weaver@nmenv.state.nm.us. In addition, all interested

persons will be given a reasonable opportunity at the hearing to submit relevant evidence, data,

views, and arguments, orally or in writing, to introduce exhibits, and to examine witnesses. For

information regarding the hearing, please contact he Environmental Improvement Board

secretary Geraldine Chavez at (505) 827-2425.

In the event that the Board adopts Part 2.66, the Environment Department will submit the

regulation, as well as the amendments to the Air Quality Control Act adopted last year, to the

Environmental Protection Agency for approval. They will then evaluate the submittal for

adequacy to protect air quality standards, as well as the appropriateness ofusing monitoring

(rather than modeling) results to evaluate such adequacy. At that time, the Environmental

Protection Agency will be providing the public an additional opportunity for comment. For

more information regarding their public comment process, please contact Tom Diggs ofthe

Environmental Protection Agency'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. Sandra Ely

Chief, Air Quality Bureau

New Mexico Environment Department

2048 Galisteo St.

Santa Fe, NM 87501

Dear Ms. Ely;

This letter is to provide information regarding the New Mexico State

Implementation Plan ("SIP") requirements that result from the passage of New Mexico

House Bill 192. HB 192 amended the state Air Quality Control Act to provide permitting

standards for cotton gins. As amended, the statute directs the Environmental

Improvement Board to adopt a regulation specifying construction permit requirements 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 of a new

regulation that indirectly alters the provisions of Part 72) require U. S. Environmental

Protection Agency ("USEPA") review and approval as a SIP revision under Section 110

ofthe Clean Air Act..

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 standard that it implements." The

primary means by which the New Mexico SIP assures the maintenance of all national

ambient air quality standards is through pre-construction review under Part 72,

Construction Permits, ofthe ambient impacts of new and modifying sources of air

contaminants.

Any new or amended regulation ("control strategies") adopted for cotton gins in

New Mexico under the provisions of HB 192 must be evaluated by USEPA under the

provisions of 40 CFR 51, which states that "the adequacy of a control strategy [to protect

standards] shall be demonstrated by means of applicable air quality models, data bases,

and other requirements... ". You have informed EPA that New Mexico is considering the

use ofmonitoring data rather than dispersion modeling to demonstrate adequacy ofthe

above referenced SIP revision because of concerns about whether the recommended

dispersion modeling fairly represents the ambient impacts ofthese sources. As you are

aware, U. S. EPA approval must be 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 reviewed the monitoring study plan provided by Mary Uhl

of your staff and 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 comment rulemaking before we can approve the

revised regulation using this study. When you submit the revised regulation, this study

should be sent as part ofthe submitted SIP revision. The study appears to be a

conservative tool since it is being conducted at locations experiencing the highest PMlO

levels in the area. Also, this study is being conducted over the full ginning season of

October through December.

We appreciate the opportunity to work with you as you implement HB 192 and

conduct this special study. If you have any questions, please feel free to contact me or

have your staff work with Tom Diggs or Quang Nguyen in the Air Planning Section at

214-665-3102 or with Guy Donaldson or Daron Page in the Air Permitting Section at

214-665-7250.

Sincerely,

Donna M. Ascenzi

Acting Associate Director (6PD)
Ms. Gay Dillingham, Chair

Environmental Improvement Board

1190 S1. Francis Drive

Santa Fe, New Mexico 87502

State ofNew Mexico

ENVIRONMENT DEPARTMENT

Office ofthe Secretary

Harold Runnels Building

1190 St. Francis Drive, P.O. Box 26110

Santa Fe, New Mexico 87502-6110

Telephone: (50S) 827-2855 ... RON CURRY

Fax: (50S) 827-2836 :1 181920 _ SECRETARY

fo'\~:/\ <1~;: -.;; j ..... DERRITH WATCHMAN-MOORE

t:? DEPUTY SECRETARY

JUL 2004 .... 0 ~iVecl _r .J.~- ..._ t::J'"

d)

~.s>

$~~ L_ \,£,0<;"

July 19, 2004

BILL RICHARDSON

GOVERNOR

Re: Request for Public Hearing to Consider Proposed State Implementation Plan Revision

Dear Ms. Dillingham:

The New Mexico Environment Department (NMED) is requesting a hearing for consideration

of proposed 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 Department requests 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 approximately 4 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 of emissions 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 if the applicant proposes use ofsuch system of

emissions reduction and meets other requirements 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 of emissions from

cotton gins. As drafted, Part 66 assures that the ambient air impacts of cotton gins permitted

under this Part will not exceed National Ambient Air Quality Standards.
Ms. Gay Dillingham

July 19,2004

Page 2

We are requesting that the legal public notice period 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 community has been involved

in regulation development, and other potentially interested parties are being directly notified of

the draft regulation and related issues, creating an effective public notice period ofmore than

60 days. As a result, we believe that a shorter legal public notice period is appropriate. Under

the Air Quality Control Act, the Board has the discretion to allow a 30-day comment period.

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 Quality Bureau
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

THE NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARDNOTICE OF PUBLIC H

.. C
PROOF OF PUBLICATION

S5.

STATE OF NEW 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

"nd work background; 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,

New Mexico 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·

about this 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 thepu 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 xami newitne 55 e s.. 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- intent shall: , 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 of Dona 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.

THE NEW MEXICO

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 of Dona 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;,2iru~td ~¥t PUbli!i:Mwas

~J11)iJW// c2C:tLt

(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 of Bernalillo SS

to bef re me, a Notary Public, in and

for the County of B,~laH'no and State of New Mexico this

day of ?r=,,, 'j" of 20J!l!f

PRICE4 G:, 8, _ Statement to come at end of month.

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=Dq 8=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 of the. 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

by that person at the hearing.

The deadline lor the notice of Intent to present technical testimony is September 24,2004. 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. Any person who

wishes to submft a non-technical

written statement in lieu 01 oral

testlinony may do so at or belore

1he heanng without aprior filing.

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~ October 5, 2004

beginning at 9:30 a.m, at the Dona , Ana County'Health Services Cen- i

ter, Roonr1101,.1.17q N. Solano, I

Las CnuceS; New MexICO. 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 Air Quality COntrol Act. This

statutory amendment ,directs the

Board to specifY, by reguiation, the

best system 01 emissions reduction .eunrentiV in use by. cotton gins. Once estabflShed, the Environment

Department may .not deny an ap- plication lor an:air quality con: struction permR lor a cotlon gin ff

the applicant proposes use 01 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 air quality State Implementation Plan. :

The proposed regulation and statutory amendmenf can be lound on the Department's web-site at nmen v. stat Ii. 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 !his hearing.

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

other specific 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 a writlennotice of

intent to 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 a description 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 notify you ofmy intent to testify at the October 5, 2004 public hearing

regarding the consideration ofthe proposed regulation referenced above. I will be

testifying as a technical expert on cotton giooing in support ofThe New Mexico Cotton

Ginners Association. I have been working as a ginning technical resource for both The

New Mexico Cotton Ginners Association and the New Mexico Environmental

Department during the development ofthe proposed regulation. A summary ofmy

intended technical testimony is 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 State University; 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-present Research Leader and Agri cultural Engineer, USDA, ARS,

Southwestern Cotton Ginning Research Laboratory, Mesilla Park, 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 Engineer in the State ofNew Mexico, Registration

Number 12708

For the last 28 years I have been actively engaged in ginning research with the USDA,

ARS and have authored or co-authored over 160 technical publications. These

publications cover all areas of cotton ginning including particulate emissions from cotton

gin plants.

My intent at the upcoming hearing is to serve as a technical 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

brief comments as might be required during the course ofthe hearing. I would also hope

to serve as a technical resource related to cotton ginning for the NMED and the EIB as

might be required 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,.'52627<0' r.~7J <,9 v I\if..... O~ .... :.>

Summary of Testimony I'~ (~ ~.l \

0) ~'t ce\~

By S. E. Hughs \~ _~~~16 ZI \r . \1"'''' r .. /

\~ ~'l

\"?n ~/ Introduction,«'1;;{'':L ~J__~~

Cotton, is both a fiber 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 remainder is shorter staple upland cotton.

Pima is grown in Texas, New Mexico, Arizona and California while upland cotton is

grown in all 17 cotton producing states. In New Mexico in 2001, about 134,000 bales of

cotton and 50,000 tons of cottonseed were produced by about 400 farms and about

58,000 bales of upland cotton and about 13,000 bales of Pima cotton were ginned by the

seven gins. The rest ofthe cotton was ginned out ofstate, primarily in West Texas.

Several new gins have recently been built in West Texas close to the eastern New Mexico

boarder due to regulatory reasons. In New Mexico, cotton accounts for about 1000 jobs

(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 ofCotton, National Cotton Council website,

http://v..rww.cotton.org/econ/world/detail.cfm,)

Cotton is a perishable commodity that has value only after the seed-cotton (locks

containing seed with the fiber (lint) attached) is separated into lint and seed at the 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 a textile mill for processing into yam and fabric. The seed is either fed

directly as whole seed to dairy cattle or crushed at a cottonseed oil mill to produce

cottonseed oil for human consumption and cottonseed meal for animal feed. The gin

stand (machine used to separate fiber from the seed) is different for ginning Pima and

upland cottons, but otherwise the gin plants which process the two types of cotton are

very similar.

Commercial cotton gins use a significant amount of air during cotton processing The air

is used to transport, dry, or clean the cotton depending on the particular processing step.

A typical gin plant may use 50 to 60% ofits total power usage for moving air. Each of

these air streams becomes contaminated with varying amounts of particulate matter (PM)

during the process. This PM, which consists primarily of soil particles and plant

material, is about 75% total suspended particulate (TSP; very large PM), about 23%

PMlO (pMcoarse) and <2% PM2.5 (PMfine). It must be removed 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 that handle seed cotton and fine screens or perforated metal

drums are used on low pressure air systems that handle lint. Two types of cyclones that

are used are 2D2D and 1D3D cyclones. Both the body and the come of a 2D2D cyclone

are twice as long as the cyclone diameter. The body of a 1D3D cyclone is the same

length as the diameter, and the cone length is three times the diameter. All ofthe 900+

operating cotton gins in the United States use controls for particulate that are similar to

those described above and this is considered "best system of emissions reduction".

It is important to note that the emissions from cotton gin exhausts are generally not

dependent on the age ofthe gin or its size. The primary difference between a newly

constructed cotton gin plant and a 20 year old plant is the size ofthe equipment and its

expected material processing rate (throughput) in bales per hour. 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 of air required to be handled is directly proportional to the gin plant's

throughput rate. The total amount of air used and the PM emitted per hour will increase

as the gin plant gets larger, but the amount of air and PM per bale stays basically the

same, regardless ofthe size or relative age ofthe cotton gin plant.

Gin Permits

Cotton gins in New Mexico are not a major source ofparticulate (emits> 100tpy ofPM)

or exceed PSD levels (250tpy PM) under NSR. Since gins are a low level emitting

source, EPA models tend to over predict by about 4X, which is why the legislation and

this new rule are necessary.

There are two basic questions regarding the permitting·of cotton gin plants: 1) are they a

major source (i.e., a Title V source) and 2) do their emissions lead to the integrity ofthe

area not being maintained (cause the region to be non-attainment) (i.e., in New Mexico

do their PM emissions violate the National Ambient Air Quality Standards (NAAQS) at

their property line?

Are New Mexico cotton gins Title V major sources ?:

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 of Emission

Ca]culations"] cutoffs that States can use to establish generic prohibitory rules or general

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 a gin 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 a minor source that does not require a Title V federally enforceable permit.

·"
The official cotton production and giIUling records show that for the previous five crop

years up to 2003, New Mexico produced on average 108,670 running bales of cotton 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 discrepancy benveen

production and ginning is accounted for by the harvested 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. One reason 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 that none ofthe currently operating New Mexico gins come

close to major source status, according to Federal EPA guidance. Indeed, one gin plant

could gin all ofNew Mexico's current ginnings and still be significantly under major

source status for particulate matter. Given the status of agriculture 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 of operating gin plants in New Mexico will be reduced even

further.

Do gin PM emissions v'om a gin using the controls that are in the Federal EPA guidance

violate the National Ambient Air Oualitv Standards (NMQS) at their property line?:

Actual measurement of particulate matter at the gin property line should be the best

indicator of public exposure to gin particulate matter and whether a gin will contribute to

the integrity ofthe area not being maintained.

Boundary line PM measurements at a New Mexico gin. To help assess the risk to the

public from being exposed to PM l'O concentrations exceeding the Federal limit of 150

tLg!m3 [Summary of PM-l 0 & TSP Concentration Measurements at a New Mexico

Cotton Gin, by B. W. Shaw, and B. Fritz] on-site measurements were conducted at a New

Mexico cotton gin during the 1998 ginning season. Pairs ofhigh volume (for

determination oftotal suspended particulate, CTSP)) and PM-l 0 samplers were located on

all four edges ofthe gin property and were operated for a total of approximately 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 of wind

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 or more ofthe high

volume fihers during 5 ofthe 8 hour test runs. The 8 hour filter changes allowed for

accurate identification of upwind and downwind sampler positions when correlated with

on site meteorological data taken during each test run. Other weather factors included

variation from warm and sunny to windy and overcast with rain showers during the days

oftesting.
Results of 1998 boundary line PM measurement. The maximum upwind and downwind

total 24 hour concentrations ofPM-10 at the gin test site boundai-y line were 55.0 and

60.1 ).1g/dsm3

, respectively. The average upwind and downwind 24 hour concentrations.

oftotal PM-l 0 were 19.5 and 22.1 ).1g/dsm ,respectively at the boundary line. These

data indicate that, for this particular gin plant and over the variable weather conditions

experienced, the PM-Ioboundary line concentrations were far below the Federal limit.

The details of every 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 industry practice and were those used in the

Federal EPA guidance for cotton gins. There is no reason to think that other New

Mexico gin plants as well as the other 900+ gins in the USA, which are similarly

equipped, would not have similar results in PM-l 0 concentration at the boundary line.

,

The NMED conducted a boundary line sampling study during the 2003 ginning season

with results similar to the earlier study conducted in 1998. These results will be

presented by the NMED to the EIB at the appointed hearing time.

A second, though indirect indication, of gin 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 of Oklahoma and the Maricopa County Arizona Air Control

District have permitting regulations recognizing equipment based methods ofmeeting

NAAQS without resorting to other means of demonstrating compliance with Federal PM10 regulation. In crop year 2001, cotton production in Oklahoma, an attainment area for

PM-10, was 197,000 bales. Cotton production 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 should be noted

that all of the" other 16 states have EPA approved SIP's for PM-10. The basic design of

the gin plants and their pollution abatement systems in all these other states is basically

the same as the design of all six currently operating gin plants located in New Mexico.

Summary

In summary, the NMED, The New Mexico Cotton Ginners Association and the New

Mexico cotton industry have attempted to develop a regulation (following New Mexico

HB 192) foi- the cotton ginning industry in New Mexico that will allow gins to operate in

New Mexico, using regulatory requirements that are similar to those used 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 basically the same as the

other900+ cotton gins in the USA that are permitted in the other 16 states where cotton is

grown, shows that the integrity ofthe area is being maintained. This affords the state of

New Mexico a reliable way to demonstrate that a new cotton gin is not going to decrease

the air quality ofthe area, when controlled as HB 192 stipulates. New Mexico will be

using a method to permit the construction of a cotton gin that is similar to that used by

what the other 16 states where cotton is ginned, and almost 900 other gins are operated.
We believe the combination ofregulations, which are being proposed by the NMED in

order to comply with the requirements of HB 192, and the monitoring data which

demonstrates compliance with the NAAQS at the boundary line, results in a reasonable

solution for all parties. This regulation will allow the cotton ginning industry to operate

in New Mexico with reasonable regulatory requirements, while assuring the citizens of

New Mexico that the gins operating in this state meet the necessary requirements for

operation.
STATE OF NEW MEXICO

ENVIRONMENTAL IMPROVEMENT 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 Environment Department (NMED) submits this Notice ofIntent to

. Present Technical Testimony in 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 of each technical witness.

Lany Weaver. Lany Weaver is an Environmental Analyst in the Control Strategies

Section ofthe Air Quality Bureau. She has worked in the Air Quality Bureau since 1990 in the

areas ofregulation and permit development. Ms. Weaver holds a B.S. degree in Mechanical

Engineering from the University ofCalifornia at Davis.

Gi-Dong Kim. Mr. Gi-Dong Kim is an air dispersion modeler for the Atmospheric

Dispersion Modeling Section ofthe Air Quality Bureau. He has worked with the Air Quality

Bureau since January of2003. In that time, he has conducted more than twenty air quality

modeling projects similar to the study at issue here. He received both M.S. and Ph.D. degrees in

Environmental Engineering from The University ofTennessee, Knoxville and has attended

conferences and taken training courses in air modeling.

NOTICE OF INTENT - PAGE 1
Mary UhL Ms. UbI is the Manager ofthe Planning and Policy Section and has been with

the Air Quality Bureau since 1992, starting as an Environmental Engineering Specialist doing

computer-based air dispersion modeling in support of permit issuance, regulation development

and enforcement actions. In 1994, she was promoted to be the manager ofthe modeling section,

and held that position until she was promoted to be manager ofthe Planning and Policy Section

in 2001~ During her tenure with the Bureau, Ms. Uhl has completed over 500 dispersion

modeling analyses for air pollution facilities in the state, developed a comprehensive New

Mexico Air Dispersion Modeling Guideline, performed modeling for streamline and general

permit development and other regulations, testified as an expert witness in the area of air

dispersion modeling in several court cases and many public hearings, and published and

presented a peer-reviewed technical article discussing the conversion of oxides of nitrogen to

nitrogen dioxide at the Annual Air and Waste Management Association meetings. Mary is a cochair ofthe WRAP modeling forum and the WESTAR Technical Committee. She is the project

manager for the Farmington Ozone Study and the Corrales Air Toxics Study. Ms. Uhl received

her B.S. with a math and chemistry major from Purdue University in 1987. In 1989, Ms. Uhl

completed her M.S. degree in Atmospheric Sciences at Purdue University.

3. Whether the NMED supports or opposes the proposed revisions.

The NMED supports the proposed regulations and revisions.

4. Summary oftestimony.

The written testimony of Lany Weaver is attached to this Notice ofIntent. NMED

estimates that Ms. Weaver's direct testimony will take 30 minutes. Gi-Dong Kim and Mary Uh1

NOTICE OF INTENT - PAGE 2
may present brief oral direct testimony, which ifpresented, is estimated to last ten minutes. Ms.

UbI and Mr. Kim will also be available to answer questions regarding the proposed regulations.

5. A list and description of anticipated 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 ofLany Weaver

Cotton Gin Study Report

NMED Exhibits 1,3-4 are attached. NMED Exhibits 2 and 5 are being finalized.

Exhibit 5 is a report on the monitoring study NMED performed on the Mesa Farmers Cotton Gin.

The report describes the basis for the setback distances incorporated in the proposed regulation.

Exhibit 2 is the revised proposed regulation.

6. Reservation ofRights.

This Notice ofIntent to Present Technical Testimony is bas.ed on the NMED's petition.

The NMED reserves the right to call any person to testify and to present any exhibit in response

to another notice ofintent or public comment filed in this matter or to any testimony or exhibit

offered at the public hearing. The NMED also reserves the right to call any person as a rebuttal

witness and to present any exhibit in support thereof.

NOTICE OF INTENT - PAGE 3
NOTICE OF INTENT - PAGE 4

Respectfully submitted,

NEW MEXICO ENVIRONMENT DEPARTMENT

Ashley C. Schannauer

Tracy Hughes

Office ofGeneral Counsel

New Mexico Environment Department

1190 St. Francis Drive

Santa Fe, New Mexico 87502-6110

Telephone (505) 827-6891

Facsimile (505) 827-1628
TITLE 20 ENVIRONMENTAL PROTECTION

CHAPTER 2 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 or modify a cotton ginning

facility as defined in this Part, except as otherwise provided by this Part.

[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)(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 of a section or paragraph. .

[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 of Air Quality

Control Act, NMSA 1978 ("the Act"), Section 74-2-7(0), and to assure that permits

issued under this 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 a unit ofmeasurement to denote an amount oflint cotton

with a nominal weight of 500 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 of any regulated air contaminant for which

there is a NAAQS, and that has 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 not reasonably

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 refer to the ratio of

cylinder to cone length, where D is the diameter ofthe cylinder portion. A 2D-2D

cyclone would exhibit a cylinder length of 2 x D and a cone length of 2 x D, with a ninety

percent (90%) efficiency for Total Suspended Particulates. A ID-3D cyclone would

exhibit a cylinder length of I x D and a cone length of 3 x D, with a ninety-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 cotton lint handling system and battery condenser.

I. "Non-attainment" means designated by the U.S. EPA as not meeting one

or more ofthe National Ambient Air Quality Standards. Current non-attainment areas in

New Mexico are Anthony and Sunland Park in Dona Ana County.

J. "Opacity" means the degree to which emissions reduce the transmission

oflight and obscure the view of an 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 under the Permit has been granted.

L. "Part 2.72" 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 Part may be

viewed at the New Mexico Environment Department, Air Quality Bureau, 2048 Galisteo

Street, Santa Fe, 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 or revision of an air quality construction permit under 20.2.72 NMAC

[Part 2.72] to any cotton ginning facility, as defined in Section 7.C of this Part, ifthe

permit application and the pemlit conditions meet the requirements ofthis Part.

[MO-DY-YR]

20.2.66.201 PERMIT APPLICATION REQUIREMENTS: Pennit applications for

each permit issued in accordance with Section 200 of this Part shall:

A. Meet all requirements for the contents of permit applications under

20.2.72.203 NMAC Paragraphs A(l) through A(3), A(5) through A(l5), and B through

E',

B. State that this Part is applicable to the cotton ginning facility;

20.2.66 NMAC Draft - 19 July 2004 - Draft 2
C. Include proposed limitations to hours of operations and other limitations

that will result in allowable emissions of no more than fifty (50) tons per year of any

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 a minimum the controls, limitations, plans

and practices 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 other conditions, 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 emission reduction system and limitations specified in the application.

B. Emissions Control on High Pressure Exhausts

(1) All emissions from high pressure exhausts shall be controlled by the

use of a high 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 of visible 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 of 70 by 70 or finer

(U.S. Sieve), or the use of perforated condenser drums with holes not exceeding 0.045

inches in diameter, or with equipment of equivalent or higher design efficiency, as

determined by the Department.

(2) The opacity of visible emissions from low pressure exhausts shall not

exceed twenty percent (20%).

D. A Fugitive Dust Management Plan that includes the following, or methods

at least as effective in controlling fugitive dust

(1) Complete enclosure of all burr hoppers.

(2) Measures to be taken to control fugitive dust emissions from any

source, process or operation occurring within the cotton gin building to assure that no

fugitive dust emissions to the outside atmosphere from any door, vent, or window are

visible.

(3) Measures to be taken to minimize fugitive emissions from the

handling, transportation or disposition of any substance or material that is likely to be

scattered by the air or wind at the facility, including but not limited to materials in the gin

yard and haul roads, including all open areas, right-ofways, storage piles, and vehicles at

the facility. Such measures shall be sufficient to assure that no visible fugitive dust

emissions generated from the property leave the property. Emissions may be controlled

by watering, paving and cleaning, surfactants, or other equivalent means.

(4) The posted speed limit for all vehicles on unpaved haul roads and in

unpaved yard areas shall be no more than 10 miles per hour.

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 other vehicles).

(1) Any emissions from fuel burning equipment shall not exhibit greater

than 20 percent opacity.

(2) The owner or operator shall use only the following fuels: natural gas,

liquefied petroleum gas (LPG), propane, or No.2 diesel fuel with a sulfur content equal

to or less than 0.05 percent by 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 least three miles.

G. Maintenance of Equipment

(1) All materials handling systems and control equipment shall be installed

and operated as required to assure that permit conditions will be met.

(2) The owner or operator shall conduct daily visual inspection of the

material handling systems for leaks, breaks or other visible signs of equipment

malfunctions, and repair such leaks, breaks or malfunctions in a timely manner.

(3) The owner or operator shall maintain a record ofthe daily inspections,

including any equipment malfunctions 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) of Subsection A of Section 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 of Section 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 of Section 74-2-2 NMSA 1978 may assume jurisdiction as a local authority

2
by 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.

3
H. 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

4
of 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

5
application 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.

6
E. 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 that does 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

9
before 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

10
A. 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

12
accordance 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.

13
D. 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.

14
C. 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

15
gUilty 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.

16
B. 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
Testimony before the Environmental Improvement Board

Regarding Proposed 20.2.66 NMAC - Cotton Gins

Lany Weaver, NMED

This is the written testimony from Lany Weaver, representing the New Mexico

Environment Department. Lany Weaver is an Environmental Analyst for the Control

Strategies Section ofthe Air Quality Bureau. She has worked in the Air Quality Bureau

since 1990 in the areas ofregulation and permit development. Ms. Weaver holds a B.S.

degree in Mechanical Engineering from the University ofCalifornia at Davis.

1. Introduction

2. The Regulatory and Statutory Framework for Cotton Gins

3. The Regulatory Development Process for This Regulation

4. A Description of Proposed Regulation 20.2.66 NMAC - Cotton Gins

5. The Development of Setback Distances

6. Comparison to Cotton Gin Requirements in Other Jurisdictions

7. Conclusion

1. Introduction

The proposed 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 alternative procedure for cotton gin owners to obtain air

quality permits that is simpler than the current procedures involving air quality modeling.

The amendments, however, left it to the Environmental Improvement Board ("EIB") to

adopt the actual terms ofthe alternative procedure.

The regulations proposed here are intended to establish the alternative permitting

procedure for cotton gins envisioned by the legislature. The proposed regulations

prescribe certain minimum technical standards to minimize particulate matter emissions

and setback distances to ensure the maintenance of ambient air quality standards adjacent

to cotton gin properties.

2. The Regulatory and Statutory Framework for Cotton Gins

Cotton is grown and ginned in the southern portion ofNew Mexico. Cotton Gin facilities

are subject to air quality requirements due to their potential to emit particulate matter.

Particulate matter includes PM1 0 (with an aerodynamic diameter equal to or less than 10

microns), TSP (total suspended particulate, 50 microns or less), and, to a lesser extent,

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 of Lany Weaver

EXHIBIT 4

1
pennit regulation codified under 20.2.72 ofthe New Mexico Administrative Code

(NMAC).

Two levels ofstatutory requirements 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 meet requirements under the federal Clean Air Act,

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 meet requirements under the New Mexico Air Quality Act, including the

requirements that the regulations it promulgates are sufficient to attain and maintain the

NAAQS and prevent air pollution, and a new requirement to address the pennit

obligations of cotton gins.

As mandated under the federal Clean Air Act, the USEPA has developed NAAQS

representing the maximum concentrations of pollutants in the ambient air that 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 quality jurisdictions 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 implement the Clean Air Act. 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 subject to 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 other parts ofthe country include a combination oftechnical

equipment specifications and pre-construction pennitting requirements to ensure that the

gins will not cause the exceedance ofNAAQS. Many jurisdictions have adopted

regulations describing the minimum controls that apply to gins. Such requirements are

included in the air quality permits issued to gins in that area.

In addition to the equipment requirements, however, pennitting regulations in other states

also include mearis to address impacts to ambient air quality standards. Air quality

programs may require the perfonnance of air quality dispersion modeling on a pennit-bypennit basis 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 already been exceeded ("nonattainment areas"); in those areas, due to the high concentrations of pollutants already

present in the area, air quality modeling cannot show maintenance with ambient air

quality standards. Instead, permit regulations require that new emissions be offset by a

local reduction in emissions, resulting in a net decrease in the area's air pollution

Testimony of Lany Weaver 2
emissions. In New Mexico, such requirements are codified at 20.2.79 NMAC PermitsNonattainment areas.

The EIB is delegated rulemaking authority under the New Mexico Air Quality Control

Act [NMSA, 1978 §§74-2-1 et seq.]. The New Mexico Air Quality Control Act

("AQCA") is also an element ofNew Mexico's SIP; as a result, the amendments to the

AQCA are a revision to the SIP. A copy ofthe amended AQCA is attached as Exhibit 3.

Consistent with the federal Clean Air Act, Section 74-2-5.B ofthe AQCA states that

"The environmental improvement board... shall: (l) 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... "

The regulations that currently govern the permitting process 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 or modification of air pollution

sources without a permit. To obtain a permit or revise an existing permit, a source must

show that emissions from the facility will not violate ambient air quality standards. Part

2.72 generally requires that this showing be made with air dispersion modeling. Ifthe

owner or operator ofa facility cannot show that the ambient impacts ofthe facility's

emissions will not exceed air quality standards, then the department cannot issue that

facility an air quality permit.

The regulation being proposed was developed in response to amendments last year to the

Air Quality Control Act. The 2003 amendment to Section 74-2-7(C) and the addition of

a new Section (0) to the AQCA provide for an alternative process for issuing permits, to

cotton gins emitting 50 tons per year or less of a pollutant subject to ambient air quality

standards, by altering the grounds on which the Environment Department may deny a

pelmit for such facilities. Specifically, the revised AQCA states that the Environment

Department may not deny an application for a construction permit ifthe applicant

proposes "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 amendments also describe by example the minimum required effectiveness of

such a system.

3. The Regulatory Development Process for This Regulation

The proposed regulation was developed with input from a working group that included

the Department, the National Cotton Council ofAmerica, and the U.S. Department of

Agriculture Cotton Ginning Laboratory in Las Cruces. This group began meeting in May

of 2003 to discuss the elements of a proposed regulation. To provide further scientific

background to resolve issues around the ambient air impacts of cotton 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 information regarding this study.

Testimony of Lany Weaver 3
On July 28, 2004, the Department mailed (surface mail or email) a package of

information about the regulation to all persons we had reason to believe could be

interested in this regulation. The list included the working group members, all ginners in

the state, public interest groups, anyone on record as having submitted a complaint about

a gin, members ofthe public that have shown a general interest in air quality regulations,

and USEPA.

4. Description of Proposed Regulation 20.2.66 NMAC - Cotton Gins

Proposed 20.2.66 NMAC - Cotton Gins, if adopted by the New Mexico Environmental

Improvement Board, would be a new Part (regulation) in Title 20, Chapter 2 ofthe New

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 under the usual air quality permit process without invoking Part 2.66. Ifthey do

invoke Part 2.66 in their permit application (see Section 201 of Part 2.66), they will not

be required to perform a dispersion modeling analysis ofthe air quality impacts oftheir

emissions. However, in doing so they accept the requirements of Part 2.66.

Table 1 includes a description of each paragraph ofthe revised proposed regulation and

the source ofthe requirement. Part 2.66 includes permit application requirements, gin

control equipment requirements, opacity limitations, requirements for a fugitive dust

management plan, and a minimum setback distance from the gin to the property line.

The provisions ofthe proposed regulation stem from the Air Quality Control Act, the air

quality monitoring study mentioned above, and the formatting and content requirements

that apply to all NMAC regulations. Exhibit 1 is the proposed regulation as it was

available during the public comment period. 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 regulation reflect subsequent results from the air quality

monitoring study and feedback from the State Records Center regarding regulatory

formatting.

The proposed regulation would enable cotton gins to receive permits without demonstrating

that they will meet ambient air quality standards. However, the monitoring study performed

by the Department indicates that the technical equipment requirements alone are not

sufficient in all cases to prevent the exceedance of air 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 Department is also

proposing the inclusion ofminimum setback distances from the gin to the property boundary.

Consensus with other interested parties has not been reached on the inclusion ofsetback

distances. At least one commenter has stated that, based solely on the amendments to the Air

Quality Control Act, the regulation should be limited to describing proper gin emissions

Testimony of Lany Weaver 4
controls and management practices, and that the setback distance provisions proposed in

Exhibit 1 to address ambient standards are inappropriate. However, the Department believes

that the adoption of a regulation that would allow a cotton gin to cause an exceedance of

health-based ainbient air quality standards would violate the state's duty under the EPA's

regulations for SIPs and the EIB's duty under the AQCA to ensure the attainment and

maintenance of air quality standards.

5. The Development of Setback Distances

The standard practice for predicting the ambient air impacts from emission of air

pollutants is by use of computer-based dispersion modeling conducted at the time of

permit issuance, based upon information presented in the permit application. The

USEPA recommends (under 40 CFR 51 Appendix W) the use ofthe computer model

ISCST3 to determine such impacts. The ISCST3 model, however, may significantly

over-predict the dispersion of emissions from cotton gins.

The ISCST3 model was developed and evaluated with data from tall power plant stacks,

which have significantly different stack parameters than cotton gins. For example, a

power plant stack emits a high volume ofvaried pollutants at a high temperature and high

velocity. Cotton ginning operations emit particulate matter from small diameter cyclone

stacks that are 18-30 feet in height with relatively low stack velocity and temperatures

only slightly above ambient.

Dispersion modeling for cotton gin facilities in New Mexico using ISCST3 predicts

ambient air impacts that exceed the 24-hour National Ambient Air Quality Standard for

PMlO (the annual PMlO standard and the PM 2.5 standards are not at issue). However, at

least two short-term studies have demonstrated that ISCST3 over-predicts the 24-hour

PMlO concentrations from cotton gins. Appendix W ofthe federal rule 40 CFR 51 allows

for the use of a robust monitoring study in lieu of a modeling analysis where there is no

applicable model.

The Environment Department developed a plan for a robust monitoring study for the

2003 ginning season at Mesa Farmers Cotton Gin to determine concentrations ofPMlO

associated with a large ginning facility. The study plan was reviewed by the

Environmental Protection Agency for adequacy to determine maximum concentrations

from cotton gins for comparison with federal and state ambient air quality standards. The

Environmental Protection Agency provided grant funding for the project and Mesa

Farmers Cotton Gin and the U.S. Department ofAgriculture Cotton Ginning Laboratory

in Las Cruces provided support to the study. The study was conducted at the Mesa

Farmers Cotton Gin in Las Cruces, New Mexico, from September 2003 through January

2004, which covered the entire cotton-ginning season.

Exhibit 4 is the Air Quality Monitoring Study Report. The setback distances in Part 2.66

are based upon the results ofthis monitoring study. The evaluation ofthe data has

included extrapolation by use of dispersion modeling.

Testimony of Lany Weaver 5
6. Comparison to Cotton Gin Requirements in Other Jurisdictions

Part 2.66 requires the use of control equipment similar to that listed in Section 74-2-7(0)

ofthe Air Quality Control Act for exhaust air from the gin, requires effective

management practices to control fugitive dust from the building and gin yard, limits the

opacity of emissions, 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 Valley Unified Air Pollution

Control District in central California, Maricopa County in Arizona, and the state ofNorth

Carolina each have or have proposed the use of cyclones 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 stringent than those

required under Part 2.66. The North Carolina and Oklahoma rules have requirements for

control offugitive dust similar to those proposed in Part 2.66.

The Department is proposing emissions controls typical ofthose for gins across the

country. While some jurisdictions apply more stringent controls, the Environment

Department believes that the proposed combination of control equipment, fugitive dust

management plan and setback distances strikes the best balance between stringency and

flexibility while continuing to maintain ambient air quality standards. Establishing

setback distances based on a facility's allowable emissions (pounds per hour ofPMl 0)

rather than production rate (bales of cotton per hour) provides an incentive for gins to use

more stringent controls (fewer pounds of emissions per bale of cotton produced).

As discussed previously, all state and local jurisdictions are required to address the air

quality impacts offacilities as part oftheir SIPs. While other jurisdictions have not

included setback distances in their cotton gin control regulations, those jurisdictions have

implemented their controls in the context of air quality permit programs, which may

include requirements for air modeling or other measures to address ambient air impacts

of emissions. The cotton gin regulations in Oklahoma, for example, include equipment

and fugitive dust requirements similar to those proposed here. To address the potential

that the specified equipment will nevertheless not be sufficient to attain and maintain

NAAQS, the Oklahoma regulations contain the additional requirement that emissions

from the cotton gin will not cause an exceedance ofNAAQS, and they give the

regulatory agency the authority to require air modeling 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 include minimum equipment requirements, but it does not

limit the process or the regulation to including only those minimum equipment

Testimony of Lany Weaver 6
requirements. The amendment provides that the process will be established by the EIB

by regulation. This implicitly acknowledges the broader scope ofthe authority and duties

ofthe EIB (i.e., the duty to ensure that its regulations attain and maintain air quality

standards) when it promulgates regulations. lfthe implementing regulation only includes

the minimum equipment requirements outlined in Section 74-2-7(0), the Department will

not be able to address the impacts of emissions as part ofthe permit process. Thus, the

alternative process must include the specification ofminimum equipment requirements,

but the complete regulation that is finally adopted must also satisfy the other

requirements that apply to the BIB's rulemaking authority.

The regulation as proposed in Exhibit 2 would meet 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 the potential to cause

the exceedance of air quality ambient standards, additional protections are required. The

setback distances proposed by the Department assure that health-based state and national

ambient air quality standards will be maintained.

Testimony of Lany Weaver 7
Table 1 - Summary of Part 2.66 [20.2.66 NMAC]

Regulatory Description Source of Requirement

Cite

20.2.66.

1 Issuing agency is Enviromnental Improvement Board Standard NMAC language

2 Scope ofregulation. Note that this is the scope of who can invoke Part 2.66; the Standard NMAC language

requirements ofthe regulation do not apply unless the applicant invokes it.

3 Statutory authOlity by 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 after the 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 by the actual effective date ofthe regulation.

6 The objective ofthe regulation is to implement the amended Air Quality Control Standard NMAC language, and

Act. The regulation specifies the best system of emissions 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 Air Act.

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 of a ginning facility, the SIC code and NAISC code for cotton and AQCA Section 74-2-7(0).

gins, and an exclusion of gins that have the potential to emit more than 50 tons

per year of any 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 "Current non-attainment areas in New Mexico are Anthony and Sunland

Park in Dona Ana County." The sentence is not necessary and may become

inaccurate over time 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 Standard NMAC language

supersedes. There are no regulations amended or superseded by this Part.

9 Notation ofwhere the documents cited in this Part may be viewed. Standard NMAC language

10-199 Reserved sections. Standard NMAC practice

200 In keeping with AQCA Section 74-2-7(0), this section states that the department AQCA Section 74-2-7(0)

cannot deny issuance or revision of an air quality construction pennit to any

cotton gin that meets the requirements ofthis Part.

201.A Pennit applications must include everything required under Part 2.72, with the AQCA Section 74-2-7(0)

exception of a demonstration that the facility will meet ambient air quality

standards. That demonstration is being made with the development ofthis Part.

201.B The permit applicant must invoke this Part in order to make it applicable. AQCA Section 74-2-7(0)

201.C In order to meet the requirement under AQCA Section 74-2-7(0) that the gin AQCA Section 74-2-7(0)

emit no more than 50 tons per year, this section requires the applicant to propose

limitations that wil1limit emissions to no more than that amount. These

limitations will be included in the issued pennit. The department is proposing

clarifying language to this section.

201.D As required by AQCA Section 74-2-7(0), the application must also include the AQCA Section 74-2-7(0)

'best system of emissions reduction' for the facility. Under Part 2.66, this

includes at a minimum the controls, limitations, plans and practices set out in

Section 202 ofthis Part.

202 Section 202 includes the pennit requirements. Each permit must include the best AQCA Section 74-2-5 (C)(5)
system of emissions 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 pennit practice.

202.B The emissions controls on high-pressure exhausts are the same as that refelTed to AQCA Section 74-2-7(0),

in the amendments to the AQCA. A limitation of 20% opacity has been added, common practice

which is typical of opacity limitations imposed by 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 common practice

been added, which is typical of opacity limitations imposed by other states.

202.D The permit will include the fugitive dust management plan proposed in the Common pennit practice

application. This section lists the minimum requirements for such a plan. The

elements listed are typical of construction permits and similar to requirements

imposed by the Oklahoma and North Carolina programs.

202.E A lesser source of emissions from cotton ginning facilities is fuel-burning Standard pelmit practice, 20.2.61

equipment. This section includes standard limitations for such equipment, NMAC

including an opacity limitation 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 propeliy boundary is 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

Study RepOli (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 permit practice.

202.0 All equipment must be installed and maintained such that the pelmit conditions Standard permit practice

are met, and the operator must visually inspect the equipment daily and maintain

records ofsuch inspections.
Air Quality Monitoring Study Report for Cotton Gins

New Mexico Environment Department

September 29, 2004

Summary

This study was developed to gather monitoring data from four locations surrounding a large

cotton gin facility in New Mexico during the 2003 ginning season. The regulatory dispersion

model, ISCST3, appears to significantly over-predict short-term impacts from cotton ginning

facilities. The monitoring data was utilized to characterize the model's over-prediction (see

Figure 6), and to evaluate for cotton gins the minimum distance from gin to property line

("setback") required to assure maintenance ofstate and national ambient air quality standards.

Figure 8 illustrates the proposed setback distances as a function ofallowable gin emissions.

Background

This study was conducted in the context ofdevelopment of a new regulation, 20.2.66 NMAC -

Cotton Gins, which was developed in response to amendments to the New Mexico Air Quality

Control Act. Both the regulation and the amendments to the statute are elements of a revision to

the New Mexico State Implementation Plan, which must also include a demonstration of

adequacy to protect National and New Mexico Ambient Air Quality Standards (NAAQS and

NMAAQS, respectively). As a result, a specific goal ofthis study was to determine how near to

the property boundary a cotton gin could be located without creating exceedances ofthe NAAQS

and NMAAQS on neighboring properties.

The standard practice for predicting the ambient air impacts from emission of air pollutants is by

use of computer-based dispersion modeling. There is no existing air quality model that was

developed specifically to estimate the concentrations ofPMl0 (the NAAQS of concern) and TSP

(the NMAAQS of concern) that result from particulate emissions at cotton ginning facilities. In

the absence of a specific model for these operations, the U. S. Environmental Protection Agency

(USEPA) recommends (under 40 CFR 51 Appendix W) the use ofISCST3 to predict impacts

from these facilities.

The ISCST3 model was developed and evaluated with data from tall power plant stacks, which

have significantly different stack parameters than cotton gins. For example, a power plant stack

emits a high volume of varied pollutants at a high temperature and high velocity. Cotton ginning

operations emit particulate matter from small diameter cyclone stacks that are 18-30 feet in

height with relatively low stack velocity and temperatures only slightly above ambient. At least

two short-term studies have demonstrated that the ISCST3 model over-predicts the monitored

24-hour PMIO concentrations from cotton gins (Zwicke, 1998; Fritz, et aI, 2002). Additionally,

data on particle size distribution and deposition velocities of cotton gin particulate emissions that

might be used in ISCST3 to further refine the modeling analysis are not generally available.

Dispersion modeling for cotton gin facilities in New Mexico using ISCST3 predicts ambient air

impacts that exceed the NM 24-hour TSP standard and the 24-hour National Ambient Air

September 29, 2004 1
Quality Standard for PM10. Since ginning only occurs a few months each year, dispersion

models predict compliance with ambient standards based on annual averages. Due to the

expected size distribution ofparticulate matter in agricultural emissions, it is generally assumed

that ifthe PMlO standard is met at a cotton gin the PM2.5 standard will be easily met.

Appendix W of 40 CFR 51 allows for the use of a robust monitoring study in lieu of a modeling

analysis. The New Mexico Environment Department (NMED) developed a plan for a robust

monitoring study for the 2003 ginning season at Mesa Farmers Cotton Gin to monitor actual

PMlO ambient impacts resulting from emissions at a cotton ginning facility. The plan was

reviewed by the USEPA for adequacy to determine maximum concentrations from cotton gins

for comparison with federal and state ambient air quality standards. The USEPA provided grant

funding for the project and Mesa Farmers Cotton Gin and the U. S. Department ofAgriculture

Cotton Ginning Laboratory in Las Cruces provided support to the study.

Study Design

The study was conducted at the Mesa Farmers Cooperative, Inc. cotton gin from September 2003

through January 2004, which covered the entire cotton-ginning season. Mesa Farmers is the

largest cotton gin in New Mexico, and produced up to 19 bales of cotton per hour during the

study period. The gin is located south ofLas Cruces (New Mexico) in an agricultural area, with

a feedlot on its north boundary and a dairy on its west boundary. A frontage road parallel to

nearby Interstate highway 25 runs along the east boundary ofthe property. Partially vegetated

desert land lies to the south ofthe gin property. (See Figure 1-Map ofMesa Farmers Study

Area.)

During the study, Federal Reference Method (FRM) PM10 (Wedding) monitors were placed to

the north, south, west, and east ofthe gin (see Figure 1) to gather particulate concentration data

in accordance with the FRM. These FRM monitors collect particulate matter over a 24-hour

period every third day. Two continuous PM10 monitors (called TEOMs) were collocated with

the (east and south) Wedding monitors to characterize variations ofparticulate concentrations

throughout the day. These TEOM monitors provide hourly particulate matter concentrations. A

meteorological measurement station (2-meter wind sensor and data logger) was collocated with

the southern monitors. All monitors and the met station were installed, calibrated and operated

by NMED monitoring specialists, and filters were analyzed by the New Mexico Department of

Health Scientific Laboratory Division, using EPA-certified Federal Reference Method (FRM)

PMlO samplers in accordance with NMED's EPA-approved Ambient Monitoring Standard of

Operation (SOP) and Quality Assurance Project Plan (QAPP).

The Wedding monitors are the EPA reference method for determining compliance with National

Ambient Air Quality Standards. All monitors operated by the department (Wedding and TEOM)

measured PMlO. Although there is a NAAQS for PM2.5, due to the expected size distribution of

particulate matter (less than 2% ofPM10 emissions), it was assumed that when the PMlO

standard is met, the PM2.5 standard will be easily met.

September 29, 2004 2
The monitoring network was designed to ensure that this study would gather data regarding the

points ofpredicted maximum concentration. Since the gin is not located in complex terrain and

all the stacks are relatively similar in parameters, NMED assumed that four monitor locations

would provide adequate data. Because ofthe low stack temperatures and heights, plumes from

these sources do not have great buoyancy and it was also logical to assume that maximum

impacts will occur very near the plant. This eliminated the need for any monitoring at distant

sites. This assumption is supported by previous dispersion modeling using ISCST3 that

predicted that maximum concentrations ofPM10 would occur along the plant property boundary,

particularly at the southern property boundary when the 24-hour period includes very stable

meteorological conditions with light winds out ofthe north (typically at night).

The PMIO samples (24-hour, from midnight to midnight) were obtained at Wedding monitors on

a one in every third day schedule from October 21,2003 through the end ofJanuary 2004.

Sampling dates were consistent with standard EPA dates on which l-in-3-day samples are taken.

The TEOMs measured PM10 continuously on a daily basis for the entire study period. The

schedule included almost the entire ginning season at Mesa Farmers. The duration ofthe study

provided data regarding the impact ofthe cotton gin under a wide variation ofmeteorological

conditions. However, the elevated concentrations ofPM10 measured during high-wind events

that occurred in the region were viewed with caution.

The cotton gin, Mesa Farmers, provided electrical service at each monitoring site. Mesa Farmers

also performed dust suppression activities (watering truck) and maintained a daily (midnight to

midnight) log ofthroughput.

Observations

Monitoring staffnoted that they saw frequent watering ofMesa Farmers access roads and lots,

resulting in low fugitive emissions from the facility grounds. Staff also noted that they saw very

little, if any, visible particulate emissions from the gin's vents.

Monitoring staff also reported the presence oftwo significant sources offugitive particulate

matter; the well traveled dirt road running along the western edge ofthe gin property (at the

dairy) and the feedlot to the north ofthe gin. For example, they reported seeing a UPS driver

wearing a dust mask while driving down the dairy's access road, and noted the wisdom ofthis

due to the dustiness ofthat road. These observations are consistent with the resulting monitoring

data. On days during which the wind was still (the highest hourly average wind speed was less

than 2 meters/sec), the Wedding monitors measured an average of about 25 and 27 ug/m3 at the

southern and eastern monitors, respectively, about 55 ug/m3 at the northern monitor (near the

feedlot), and 86 ug/m3 at the western monitor (near the dairy and unpaved road) (see Figure 2-

Concentrations on Low Wind Days). Concentrations measured at the monitor near the unpaved

road were consistently higher than those measured elsewhere.

Winds blew from all directions, with the highest winds generally coming from the east and

northwest (see Figure 3 - Wind speed vs. Wind Direction). The highest particulate readings

occurred during the highest winds; this correlation indicates that fugitive dust (which increases

September 29, 2004 3
with wind speed) may overpower impacts from gin emissions (which are predicted to decrease

with greater dispersion from higher winds).

TEaM monitors measured significantly higher (by a factor of about 2) readings than their

collocated Wedding monitors (see Figure 4 - Wedding Data vs. TEaM Data). As a result,

during analysis NMED compared TEaM data to TEOM data, and Wedding data to Wedding

data.

Modeled predictions of concentrations were consistently higher than observed concentrations.

See Figure 6 - Comparison ofPredicted Concentration Downwind from the Facility Plus

Background Concentration (18 ug/m3) and Monitored Concentration. On average, the model

over-predicted observed PMIO concentrations by a factor of3.

Gin emissions were calculated using records ofdaily production and PMIO emissions factors

from AP-42. Facility contributions to ambient concentrations were calculated by subtracting

upwind from downwind concentrations. The facility contribution estimated in this manner

showed a relationship to wind speed. However, a direct comparison offacility contribution to

gin emissions did not reveal any relationship between them. It appeared that the interference

from neighborhood emissions would not allow this straightforward method of evaluation to be

effective. Further analysis was necessary.

Further Analysis ofStudy Data

A further analysis ofthe data was conducted using dispersion modeling to compare the modeled

and monitored concentrations at the locations ofthe four monitors. This section summarizes the

process of analysis; the following section includes a detailed modeler's report ofthe analysis.

In order to estimate the ambient concentrations that could be anticipated from cotton gins based

on the data collected during this study, NMED has made the following assumptions:

• The impacts ofgin emissions at those receptor points represented by the monitors are not

greater than the concentrations observed at those monitors, and are likely to be smaller

due to background contributions.

• While the magnitude ofpredicted concentrations using dispersion models is not

supported by observed concentrations, models may still be effective in predicting the

profile of emissions concentrations over a given area.

• Data collected during days with high wind events is not representative ofnormal

conditions.

• The east and south monitors, being generally more downwind ofthe gin and further from

interference from neighborhood emissions, are more representative ofgin impacts. Only

data from these monitors were used in this further analysis.

• The highest average concentration observed at the south and east monitors, during days

when the gin was not operating, are representative ofbackground concentrations. These

average concentrations were 14.6 for the south monitor and 18 for the east monitor. A

background concentration of 18 ug/m3 was used in this analysis.

September 29, 2004 4
• The AP-42 emissions factor of 1.2 pounds/hour ofPM10 per bale bale/hour production is

representative ofMesa Farmers in its current configuration.

The process of analyzing the data and determining the required setback for the regulation was as

follows:

• Four days ofworst-case meteorological conditions were selected from the study period

where wind speeds were relatively low, which results in higher concentrations of

particulate matter due to less dispersion of emissions from the gin. On these four days,

the predominant wind direction was from the west.

• The modeled concentrations were determined for each day using actual emission rates

from the ginning facility and on-site meteorological data for the day. A background

concentration (see above) was added to the predicted concentration at the receptor point

representing the downwind monitor. This sum was compared with the observed

concentration. On these four days, the predicted concentrations for the east monitor

(downwind from the gin) are higher than the actual concentrations by a factor of2 up to a

factor of7. Note that the predicted and observed concentrations to this point are both

based on the production level (gin emissions) present during that day.

• A mathematical relationship between downwind distance and the predicted maximum

concentration for that distance (in any direction) was determined. Predicted maximum

concentrations were utilized to find an optimized equation that would ensure a

conservative modeling analysis. This mathematical relationship is illustrated in Figure 7,

and provides a profile ofhow concentrations vary over distance from the gin.

• To determine the setback required for various sizes of gins in the state, a range of

different PMlO emission rates were modeled for each ofthe four worst-case meteorology

days. The predicted concentrations for each distance and production level for each day

were adjusted downward such that the predicted (including background) concentration at

the distance from the gin to the monitor for that day's production level was the same as

the actual concentration measured on that day. This profile is referred to as the

'hypothetical concentration'.

• For each production level, the distance at which the hypothetical concentration equals

150 ug/m3 was calculated. A relationship between the emission rate and distance to

maximum concentration was used to determine setback distances for various sizes of

cotton gin facilities. This was considered to be the minimum distance from gin to

property line ("setback") required to assure maintenance ofthe National Ambient Air

Quality Standard for PMIO.

• The New Mexico State Implementation Plan includes a state ambient air quality standard

of 150 ug/m3 for total suspended particulates (TSP). As a result, this process was

repeated to determine the minimum setback distances required to maintain the TSP

ambient standard.

Modeling methodology, Receptor grids, and Meteorological data

The latest version ofthe ISCST3-PRIME dispersion model was used for this analysis. The model

was run in the control pathway that specifies the use ofthe following options:

September 29, 2004 5
• Stack-tip downwash

• Gradual plume rise due to building downwash

• Buoyancy induced dispersion

• Default wind speed profile categories

• Default vertical potential temperature gradients

• No pollutant decay

Flat terrain was incorporated into the modeling analysis. In accordance with the Auer land use

classification methodology described in the EPA Guideline on Air Quality Models (GAQM),

rural dispersion coefficients were implemented in the modeling analysis because land use within

the area circumscribed by a three km radius around the facility is greater than 50 percent rural. A

building downwash analysis using the latest version ofBPIP-PRIME was conducted and

incorporated into the modeling analysis to account for potential eflluent downwash due to the

main building and storage building.

A Cartesian receptor grid was used in the analysis. Four receptors collocated with the monitors

were modeled for a simple comparison of concentrations predicted by model and those observed

at four Wedding monitors. For determination ofthe required setback distance, a 25-meter

spacing for a very fine grid resolution was extended out to I-km from the facility in each

direction. A 50-meter spacing for a fine grid resolution was extended out to 2-km from the

facility in each direction. For intermediate and rough grid resolutions, ISO-meter spacing and

300-meter spacing were extended out to 3.5-km and 5-km from the facility, respectively. On-site

surface meteorological data observed in 2003 was used for the modeling analysis with daytime

and nighttime mixing height of IOOO-meter and neutral stability ("COO) for daytime and a stable

("F") condition for nighttime.

Comparison ofthe predicted concentrations and the monitored concentrations for the facility at

Mesa Farmers

Instead ofmodeling each day ofthe entire gin season, the twelve calm days were selected from

all ofthe days at the facility on which the Wedding monitors, met station and gin were running.

Each day ofthe selected days was modeled with the actual emission rate and meteorological

conditions ofthe day so that the model was run twelve times separately. Then the sum ofthe

predicted concentration plus a representative background concentration ofthe area where the

facility is located was compared to the monitored concentration. The reason that calm days were

selected is that impacts are greater due to less dispersion. In addition, the dispersion from

neighboring fugitive emission sources is possibly lesser on low wind days resulting in a greater

portion ofthe concentration coming from the facility.

To determine the background concentration, all ofthe days (excluding high wind event days) on

which the Wedding monitors and met station were running and the gin was not were examined.

The 24-hour PMI0 average concentrations were calculated for the east and the south monitor. A

statistical analysis showed average background concentrations of 18.0 ug/m3 and 14.6 ug/m3 for

the east and south monitors, respectively. The higher concentration (18.0 ug/m3) was considered

as the background concentration and added to concentrations predicted by the model for further

September 29, 2004 6
analysis. The reason that the east and the south monitor were selected for determination ofthe

background concentrations is that they were the monitors downwind ofthe gin on the days used

for further analysis. These two monitors are more representative of gin and background impacts

and were not as directly affected by the unpaved road and dairy. According to Table 1, which

compares the sum ofthe model predictions plus the background concentration to the monitored

concentrations, the model overpredicted by a factor of 2 up to a factor of 7 for the east monitor

and by a factor of2 for the south monitor compared to the monitored concentrations on the 12

days selected for further analysis.

On the contrary, the concentrations for the west and north monitors are higher than the predicted

concentrations. It is likely that the neighboring sources ofthe unpaved road traffic on the west of

the facility and the dairy facility on the north ofthe facility (see the map ofMesa Farmers in

Figure 1) significantly contributed to the concentrations at these two locations. Figure 2 shows

that the ambient concentrations on still days were greatest near the dirt road (located adjacent to

the west monitor) and the feedlot (located north ofthe north monitor. The windrose plots in

Figure 5 demonstrate that the predominant wind direction is toward the east and the wind

sometimes blows towards the south. Over-predictions ofthe model occurred downwind ofthe

gin, under-predictions ofthe model occurred upwind ofthe gin and downwind ofthe

neighboring sources. Figure 5 also demonstrates the wind speeds ofthe selected days are

relatively low to compare with an average wind speed of 1.71 m/s and 1.01 m/s for the month of

November and December, respectively. Figure 6 shows comparison ofthe monitored

concentrations downwind ofthe facility and the sum ofthe predicted concentrations plus the

background concentration for the monitor's location.

Methodology to develop an equation to calculate the required setback distance for the facility at

Mesa Farmers

For the further analysis to determine the required setback distance for the facility, the four days

ofNovember 02 (over-predicted by a factor of 1.5), November 05 (over-predicted by a factor of

3), November 23 (over-predicted by a factor of7) and December 17 (over-predicted by a factor

of 2.5) were selected due to a higher over-prediction rate than the other days. All the predicted

concentrations were plotted against distance from the center ofthe facility to the corresponding

receptors for each day ofthe four days separately. Figure 7A shows the example ofNovember 5.

As shown in the figure, the X-axis represents distance from the gin and Y values are the

concentrations predicted at all the receptors modeled (in all directions from the gin). The highest

Y data points were picked for each corresponding X value. Then a scatter plot was used to show

a data trend ofthe picked highest predicted concentrations and the distances as shown in Figure

7B. To find an optimized equation to describe the nonlinear curvature ofthe data trends, a

number ofnonlinear equations were evaluated to identify mathematical equations that would

provide a reasonable fit. Table 2 summarizes the coefficients for the four equations and the high

R2

values are indicative of a strong relationship between the downwind distance and the

predicted maximum concentrations. The relationship was produced by the method as follows:

September 29, 2004 7
y =C1+C2*exP(~)+C4*exp(~) (1)

In the resulting equations, Y indicates concentration predicted by the model (ug/m3) and X

indicates distance, and the other parameters ofC1, C2, C3, C4 and C5 are constants. Due to

somewhat limited monitoring data, it is difficult to understand whether the difference between

the predicted concentration and the actual (observed) concentration tends to decrease or increase

over downwind distance. To overcome this lack ofdata, this study introduced a requisite

assumption that the model consistently over-predicts at the same ratio C'r) across all distances.

The ratio C'r) ofthe over-predicted concentration and the corresponding monitored concentration

downwind ofthe facility is in the following equation:

t = over - predicted concentration downwind (2)

corresponding monitored concentration

More specially, the concentrations predicted by the model (taking into account background

concentration) are 1.5 times, 3 times, 7 times and 2.5 times higher than the observed

concentrations for the days ofNovember 2, November 5, November 23, and December 17,

respectively. According to the conclusions ofseveral scientific studies that certain

meteorological conditions are characteristic ofday in a year, it is likely that the ratio (t) varies

depending on specific meteorological conditions. Then it is possible to calculate hypothetical

(corrected) concentrations at each distance (receptor) from the gin by multiplying eq (1) by the

corresponding ratio (t) for each day ofthe four days:

Using eq (3), minimum setback distances for each ofthe four days were calculated from the

center ofthe facility to where the concentration exceeds the 24-hour PM1 0 national standard

(150 ug/m3) for that day. The calculated minimum setback distances are 46 meters for

November 2 and zero for the days ofNovember 5, November 23 and December 17. Note that the

setback distances were determined with the actual PM10 emission rate calculated from the gin's

production rate for each ofthe four days.

The New Mexico State Implementation Plan includes a state ambient air quality standard of 150

ug/m3 for total suspended particulates (TSP). To establish the minimum setback distance needed

for maintenance ofthe TSP standard, first the average ratio ofTSP and PM10 ambient

concentrations in this area were calculated for the months ofOctober, November and December.

Both PM10 and TSP were measured at the nearby Anthony Elementary School during 1988 and

1989 (see Table 3). TSP concentrations for this study were calculated by multiplying the

hypothetical PMlO concentrations calculated using eq (3) by the average ratio ofTSP and PM10

September 29, 2004 8
(which equals 1.32). Then setback distance for TSP was determined from the center ofthe

facility to where the concentration exceeds the 24-hour TSP standard (150 ug/m3) for the four

days. The result ofthe setback distance analysis for TSP is similar to PMIO. The determined

minimum setback distances (for that day's emission rate) are 78 meters for November 2 and zero

for the days ofNovember 5, November 23 and December 17.

Methodology to determine setback distance required for different emission rates

The proposed regulation would apply to gins with emission rates up to 50 tons per year ofPMlO.

Assuming a gin season of 2 months and continuous production during that time, this is the

equivalent of approximately 69 pounds per hour. Emissions from existing gins in New Mexico

can range from approximately 6 to 25 pounds per hour. In order to allow for the entire range of

allowable emissions levels, calculations to determine setback distance for TSP and PMl0 were

developed using the same method as described above in order to determine required setback

distances as a function ofPM10 emissions rates. These distances, and the equations that

describe them, are shown in Figure 8. Note that a minimum setback distance of 10 feet has been

added. The equation in Figure 8, using emissions ofPMIO to calculate minimum setback

distances for the TSP ambient air quality standard, will be proposed in the upcoming rulemaking

(20.2.66 NMAC) for cotton gins. Note that in both equations (for PMIO and TSP) Y is in units

ofmeters; in the regulation, the output will be in feet.

Unlike many other pollutants, particulate matter settles out ofthe air over time. The Department

acknowledges that using dry plume depletion parameters for PMIO and TSP could make a

significant difference at larger emissions rates. However, those parameters (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 at this 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

low flow 20.45

77.98 18.21

low flow 19.9

60.89 49.48

39.01 181.93

153.27 20.43

low flow 21.94

63.42 28.34

September 29, 2004 9
PM10

Monitoring

Station

East

West

South

North

Dec. 11,2003

Monitored Predicted

u m3 u 1m3

low flow 18

150.49 28.02

low flow 18

low flow 18

Dec. 23, 2003

Monitored Predicted

u 1m3 u 1m3

18.13 60.75

42.19 18

21.33 18

32.86 30.65

Ta e • bl 2 Coeffi·Clents Iior thenonlinear curve fit Iior the modle prediti C on equation.

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

September 29, 2004 10
Figure 1 - Map of Area 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'"

u

Q) __E

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

September 29,2004

Range of Highest Hourly Windspeeds (m/s)

Figure 2. Concentrations on Low Wind Days

12
12

10 •

--- 8 , (J) ). --E'-"

"0

Q)

Q)

•

Cf)

0.. 6 .~ ., "0

" ., c •• -. ..

4

• ' •• J

.. ...

"..... •

..

... . , •• • . .

• ., •

2 • ••

.,

0

0 50 100 150 200 250 300 350

Wind Direction

Figure 3. Wind Direction vs. Wind Speed

September 29, 2004 13
e

East

y = 2.84195*x - 22.2326

R2 = 0.96

150 200 250

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

W

I200

100

0

0

Wedding Values (ug/m3

)

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

September 29,2004 14
Nov. 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) ::J 0 70 90 ::J 0" 0"

(J)

u.. Lt 4 ".

\ -- 3

240 /" 120

8

6

12 210 150

180 180

Hourly Avg. WS (m/s) =1.14 Hourly Avg. 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.. 6 240 .._--_.. 3 240 IJ ,~ 9

12 6 210 150

180 180

Hourly Avg. 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.

September 29,2004 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

Hourly Avg. WS (m/s) = 1.89

SO = 1.89

Dec. 02, 2003

0 9

6

3 >- ()

c

Q) 0 70 90 ::l

0-

LL 3

6

9 180

Hourly Avg. WS (rnIs) = 0.53

SO = 0.78

9

6

300

3

>- ()

c

Q) 0 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

Hourly Avg. WS (m/s) = 0.38

SO = 0.40

180

Hourly Avg. 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 16
120

_<0.5m/s

_0.5101m/s

90

Dec. 14, 2003

o

180

Hourly Avg. WS (mls) =0.03

SO =0.14

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6

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u.. 3

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_<0.5m/s

_0.5101 m/s

60

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

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Dec. 11,2003

o

330 30

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Hourly Avg. WS (mls) =0.07

SO =0.22

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12

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12

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------~- .--

Dec. 23, 2003

o _<0.5m/s

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_1101.5m/s

_1.5102m/s

60 _2103m/s

((~ oo-,,,,,m,,

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_1 10 1.5m/s

Dec. 17, 2003

o

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It 3

180

Hourly Avg. WS (mls) =0.53

SO =0.81

9

180

Hourly Avg. WS (mls) =0.55

SO =0.49

12 210 150

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

Station.

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200

• 180 •

.- 160 '"E M'-'" C»

E :::l • -- co 140 0>:::l __...... Slope =

--c:: c::

0 0

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..... ..... c:: c:: Q) • Q)

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a:l •

+ 40 •

20

0

0 20 40 60 80 100 120 140 160 180 200

Monitored Concentration (ug/m3

)

Figure 6. Comparison of Predicted Concentration Downwind from the Facility Plus

Background Concentration (18 ug/m3

) and Monitored Concentration.

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350

300

",- 250 E

--Cl

2- 200 c

0

:;:::>

C 150 CI>

U

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0

() 100

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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

500 1000 1500 2000 2500 3000

350

300

",- 250

E

--Cl

2- 200 c

0

:;:::>

C 150 CI>

U

C

0

() 100

50

0

0

Distance (meter)

Figure 7. Scatter Plot of the Predicted Concentrations and Determination of Setback

Distance.

September 29,2004 19
1200 ,....---~-----:'---~---~--~~------:---""7"-:r

'&

1200

3000

en

CD

2400 Ef

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'"o

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£

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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

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Q)

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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 Without Dry Plume

Depletion.

September 29,2004 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. Lany Weaver

NMED - Air Quality Bureau

New Mexico Environment Department

P.O. Box 26110

Santa Fe, 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 Quality Monitoring

Study Report for Cotton Gins

Dear Ms. Weaver:

Thank you for your letter dated July 28, 2004, in which you requested comments on

20.2.66 NMAC - Cotton Gins. The following comments should be addressed:

1. The proposed rule does not require an individual facility to perform a

dispersion modeling analysis of air quality impacts ifsuch facility complies

with the control requirements, minimum setback distance and other conditions

listed under the proposed rule. The revisions to this rule are based

on results from an air monitoring study. The Air Quality Monitoring Study

Report for Cotton Gins (monitoring study report) asserts that the approved

dispersion models consistently over predict impacts for cotton gins.

Appendix W of 40 Code ofFederal Regulations 51 allows the use ofmonitoring

when other models are found to be inappropriate. The monitoring study report

seeks to serve as the technical basis for demonstrating that certain prescribed

cotton gin facilities are no longer required to perform dispersion modeling

analysis of air quality impacts. Therefore, the monitoring study report must

show that each and every cotton gin meeting the conditions contained in the

rule and the report and thus getting a permit will not cause or contribute to the

violation or interfere with the attainment or maintenance of any ambient air

quality standards or increment.

2. The State must submit the monitoring report as part ofthe State

hnplementation Plan (SIP) revision and incorporate the report into the

New Mexico SIP.

3. The rule should clarify that it does not interfere with or supersede any

existing Federal air quality requirements.

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 Federal regulations requires the responsible agency to have a

means to prevent issuance of a permit ifit would result in violation ofthe

attainment or maintenance ofthe National Ambient Air Quality Standard

(NAAQS) or violate applicable portions of a control strategy.

5. The Department should have a provision that allows it to re-evaluate/modify

"best system of emissions reduction," controls, fugitive dust plans, setbacks,

etc. if data shows violations of air quality standards or interference with other

air programs such as regional haze.

6. The monitoring report cites to various assumptions. The proposed rule and

permits issued should have conditions or requirements that correlate to the

assumptions made throughout the study. For example, land use should be

limited to rural areas, and nearby terrain should be limited to flat terrain.

7. On pages 8 and 9, the study report says that a minimum setback distance

between the gin and property line of 46 meters for Particulate Matter nominally

10 microns and less and 73 meters for Total Suspended Particulates were

calculated using the hypothetical concentration of 150 uglm3

. Please explain

ifthis hypothetical concentration has the assumed background included and

how a property line concentration that is near the NAAQS of 150 uglm3 can

be protective ofthe NAAQS at all distances and locations beyond the property

line when combined with other potential sources.

8. Table 1 on page 9 ofthe study indicates that there were several instances

where the monitored concentration was higher than the predicted

concentration and was actually over 150 uglm3

• Please explain why these

are not considered to be exceeding the NAAQS.

9. The proposed mle should ensure maintenance ofreconls and inspections

are sufficient to demonstrate compliance with the rule.

I thank you for the opportunity to comment, and I hope that this is helpful. If you have

any questions, please call me at (214) 665-7250 or Daron Page ofmy staff at (214) 665-7222.

Sincerely yours,

J2;.!J~t jDavidl~feigh Chief

Air Permits Section
KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

(505\ 243-5018- Fax (505) 243-3606

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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.

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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 87

1505\ 243-501R- Fax 1505\ ?41-1flOfl
PAGE

I N D E X

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico

(505) 243-5018- Fax (505) 243-3606

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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

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87102

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E X H I BITS

MARKED/ADMITT

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 871

(505) 243-5018- Fax (505) 243-3606
KATHY 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

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 8

('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, 

7 will make orders as may be necessary to preserve decor

8 and to protect the orderly hearing process. To that

9 end, I ask that all persons at this hearing please tur

10 off all cell phones, pagers and beepers.

11 And then the hearing shall proceed as follow

12 All testimony shall be taken under oath.

13 As Hearing Officer, I will admit any relevan

14 evidence unless I determine that the evidence is

15 incompetent or unduly repetitious.

16 Any person offering an exhibit shall provid

17 an original to the Board administrator and a copy to

18 each of the Board members and to its legal counsel, a

19 shall also provide additional copies for persons

20 attending the hearing. If visual aids are used, legi

21 copies must be submitted for inclusion in the record.

22 Any person who wishes to make a brief openi

23 statement before presentation of his direct testimony

24 may do so.

25 Petitioner will present direct testimony on

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1 MS. DILLINGHAM: I'd like to call this meeting

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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 - Fax (505) 243-3606

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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 a

4 the direct testimony.

5 Any person who wishes to make a brief closin

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 Environmen

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 Departmen

20 I just wanted to give you a quick preview of what we'

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 testimon

25 of three witnesses. The witnesses are here, Mary Uhl 

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87

(505) 243-5018 - Fax (505) 243-3606
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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 - Fax (505) 243-3606

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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 pub

5 notice.

6 The second exhibit is the proposed regulatio

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 

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 tha

17 are being proposed in the regulation.

18 So with that as background, I'd like to sta

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 87

ISOS\ ?d1-'inlR - PriX ISO'i\ ?d1-1fiOfi
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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

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Q. Can you describe what the State Implementatio

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 th

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 871
maintained.

the state level.

Can you describe what the basis of air

PM There is also anot

10 A. As I said, there's

There are air quality standards -- ambient a

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87

(<;0<;) 741-<;01A - F'ilX ('i0";) 741-1606

national ambient air quality standard for -- referred 

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 t

ambient air quality standards is?

A. Air quality -- ambient air quality standards

have been developed based on health studies, and they

primarily set up to protect human health, especially t

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 a

quality standards have been established and that are

emitted by cotton gins?

Q. You mentioned that the proposal is subject t

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

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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 PM10 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.

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1 as TSP, total suspended particulate, and that includes

2 particulate matter that is 50 microns or less.

3 PM w ' 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 PM10 coming out of a cotton gin, maybe 2 percent, if

12 they meet the standard for PM w ' 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

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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 th

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 871

It:,,-.,t:,\ '1A':l_r::.nlQ _ 1:''''' ..... tc,r\t:,,\ ?A~_·::U:J\I':.:
Q.

A.

read it.

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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

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ambient air quality standard.

"The construction permit shall require that

the applicant use the proposed emission reduction sys

and limit the hours of operation to the hours specifie

in the application. For purposes of this subsection,

'best system of emissions reduction' for cotton gins

means a system that will result in emissions reductio

equal to or greater than that obtained by the use of

condenser screens, seventy-mesh screen or equivalent 

low-pressure exhausts and high-efficiency cyclone dus

collectors on high-pressure exhausts."

MR. SCHANNAUER: And for the Board's

reference, that -- Lany just was reading from languag

on page 10 of Exhibit 3, in case you need to refer to

that.

Q. What is the current permitting procedure fo

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 proc

under 2.72 includes the requirement that the source

demonstrate that the impacts of the emissions from th

source will not exceed ambient air quality standards.

This demonstration usually involves ambient

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87
management plan, which includes enclosure on all burr

system of emissions control?

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. Al

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 871

('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 

Section 202.F, paragraphs (1) and (2), based -- and,

That was referred to in the statute.

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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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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

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1 Q. How do the equipment and control requiremen

2 of the proposed Part 2.66 compare to requirements cott

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 attai

6 and maintain ambient air quality standards. And most

7 implement this via permit construction permit program

8 And so it's very difficult to compare different state

9 because most states are implementing -- are maintainin

10 standards via the permit program, and they all do it 

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 

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 ai

19 quality, you know. Central Valley, California, has m

20 stringent requirements, and they're a serious

21 nonattainment area for particulate matter, and so the

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 8

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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

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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 U

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 informati

23 about the Department's proposal, including a descripti

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 87

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 ca

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 87

'sos, ?dl-S01R - p"" 'sos, ?~l-lr;Oh

regarding the regulation and report, and some of that 

reflected in the comments that they sent.

Q. You mentioned that you received comments fro

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 -- thi

was available.

That was just a few minutes ago?

A. Yep. Fortunately, the other end of this

building has the Environment Department division -- o

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 re

And we have we're entering it into the record just 

that we can on the record respond to them. Most of

these things we've actually been in discussion with E

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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.

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I~nt:;\ '111?_t:;"10 _ 1:"'-"H /t:;nt:;,\ ')11"J_Jc,n,::

met that.

reductions is.

So we do have the means to revise this

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87

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 

And our response to that will be that if the

11.a T,,;,,

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 emission

before the Board, addressing those other issues, and w

can address the cotton gin regulation at that time if 

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 terrai

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 a

mountainous areas, just as a general matter, for

transportation purposes.

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KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

ISOS\ ?41-S01R - 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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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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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 

'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 t

how we've monitored concentrations during the study th

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 goi

to have higher concentrations, and there are provision

to take when we do have dust high -- high wind days. 

don't include that in determining whether we're meetin

standards, because those are referred to as exceptiona

events.

And number 9, the proposed rule should ensur

maintenance of records and inspections are sufficient 

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" adde

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87

(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 questi

Madam Hearing Officer, could I ask

No. We're open to --

MS. WARDWELL:

MR. TSO:

A.

Q. Okay.

That's what we're requesting for -- requesti

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 87

(S05\ 243-5018 - Fax (505) 243-3606

Well, I'd like to make the witnesses availab

CROSS EXAMINATION

regulation with the State Records Center. By

nonsubstantive changes, that would include fixing any

typos that we find and any formatting changes requeste

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

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

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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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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1 permit.

2 I heard your response to that.

3 Did they not write this after reading what 

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, thro

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 2.6

19 is going to be sufficient to assure that standards w

20 be met. So either they go through the permit proces

21 and -- in the regular way, and they demonstrate that

22 they are meeting standards, or they go to 2.66, and 

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 8

,..- roC" \ ..... " '") 1:1"\"1 Cl I r::nt: \ "") A") _"') c"c:
KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87

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, 

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 

be sworn in. Yes.

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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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heartburn

MS. HERRERA:

MS. WEAVER:

sufficient --

MS. HERRERA:

MS. WEAVER:

you.

You give them our phone numbe

No. That's -- the SIP is not

Just kidding.

-- and we would be back before
KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 8

(sns\ ?41-S01A - Fax 15051 243-360f;

the record. I don't know.

To continue on, and I do want to put this i

context, cotton in the State of New Mexico is an

important crop. It -- in the letter that I have, cal

Summary of Testimony, that was submitted to Geraldine 

September the 24th, you have some of that in there. 

I think you probably read that, and I don't need to g

through that now.

But 14 years ago, there was not a real mean

of permitting this -- the new cotton gin. We were no

able to do it under the existing regulations at that

time. And so there's a process of dealing with the N

Mexico Environmental Department under -- in various

ways, somewhat -- sometimes somewhat contentious.

But about five years ago, I was engaged wit

Texas A&M in my laboratory here in town on monitoring

boundary line conditions at the gin in question that 

needing a permit. And at that time, we established f

sure that that the gin met the NAAQS, that there w

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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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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MS. HERRERA:

MR. HUGHS:

No, I get it. I'm just kiddi

I assume you'll strike that from
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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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agricultural source. It is a -- it is a minor source.

It doesn't approach anything like a Title V source tha

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 o

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 b

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 871

ICAC.\ '">Il"'_l:;,"10 _ C',=,v {t;{'jt;\ ?II~-"':lh()h
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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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1 can just talk a little bit.

2 Gins use a lot of air in the processing of 

3 cotton. Something like 60 percent of the power using 

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 an

14 results that we've published in peer-reviewed journal

15 that back that up, if you' re interested in that.

16 But because it is -- the air must be cleane

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 g

21 as it exhaust -- as it's exhausted from whatever proc

22 it happens to be, the air comes into a cyclone -- and 

23 don't have a marker yet, do we -- comes into a cyclon

24 centrifugally starts going around in a circle, the a

25 comes -- goes down to the bottom of the cyclone, then 

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 8

ft:nC\ ')1l')_c.nlQ r.'::to"V' lc.nl:,.\ ?A"':t_':le::flh
43

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 871

tsns\ ?d1-<;nlA - 1""" (SOS) ?41-1h06

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 cotto

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. I

looks to the outside. Okay.

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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

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I ran out of an eraser here.

What the State did and what we had done

45

atmosphere.

Just use that piece of cotton

It's right there behind you,

This will work.

Seed cotton cleaning, there are vario

MS. CHAVEZ:

Okay.

MS. HERRERA:

MR. HUGHS:

Thank you.

right there.

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87

(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 

product that he can sell. And the farmer -- many of

stages of that. Then you get into the gin stand. An

the gin stand is sort of an Eli Whitney thing. There

a saw inside -- pardon me. That should be a saw. Se

cotton comes in. It goes through some -- the saw turn

to some ribs.

Greg.

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Your cyclone bank

Okay. Now, this kind of process, the seed

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

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102

Isns) ?41-SnlR - 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

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Does that answer your question?

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87

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 yo

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 -- t

last air change is called a battery condenser, and aft

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 t

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 t

holes and out. So there is an air change just prior t

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 i

the exhaust simply because there are just more soil

particles and things there.

And it decreases as you go through the gin.

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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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space around it.

49

But in a gin, there's a lot of material that a

Excuse me, Lany.

I don't know did -

This is an

I was --

Okay.

Exhibit 5 would be the monitor

So if you'd like to hand those

During the study, we had them

Yeah.

You have in your packet there -

Yeah, right.

The monitoring study, and in th

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 8

ISOS\ 741-SnlR - PrlX (0,05) 743-3606

And, also, we have

And then the monitor stations would be loca

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 

gin what was -- which ways was the wind blowing and h

hard was it blowing.

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No. In a gin -- 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

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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. Hugh

3 when I was young and healthy, I spent many hours in th

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 representative

9 that are here today, are they on board and supportive 

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 th

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 87

(505) 243-5018 - Fax (505) 243-3606
53

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 sh

Thank you.

MS. WARDWELL:

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87

(SOS\ ?41-S01A - PnX (SOS\ 241-3606

Bureau.

MS. ABEYTA: Thank you, Madam Hearing Offic

Cecilia Abeyta, New Mexico Farm and Livestoc

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

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MS. WARDWELL: Okay.

Thank you.

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witness?

Okay.

We're just in full support of what the

CCR License Number: 21

Expires: 12/31/04

12/12/07

ss.

I, CHERYL ARREGUIN, the officer before whom the

STATE OF NEW MEXICO

KATHY TOWNSEND COURT REPORTERS

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87

(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 take

given by said witnesses; that I am neither attorney no

interested in the action.

or counsel employed by the parties hereto or financial

and that I am not a relative or employee of any attorn

My Commission Expires:

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Then the record of

No, thank you.

The Department has no

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.

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BILL RICHARDSON

GOVERNOR

State ofNew Mexico

ENVIRONMENTDEPARTMENT

Office ofGeneral Counsel

Harold Runnels Building

1190 St. Francis Drive, P.O. Box 26110

Santa Fe, New Mexico 87502-6110

Direct Telephone (505) 827-6891

Facsimile (505) 827-1628

November 2, 2004

RON CURRY

SECRETARY

DERRITH WATCHMAN-MOORE

DEPUTYSECRETARY

Mary H. Smith, Esq.

New Mexico Attorney General's Office

111 Lomas Boulevard NW #300

Albuquerque, NM 87102-2368

Re: Cotton Gin Regulation

Dear Mary:

As we discussed, I'm providing a further explanation ofthe typographical correction we are

proposing, and I'm enclosing the relevant documents to illustrate the changes. Please note,

too, that the corrected version ofthe regulation also includes a minor change we requested

during the October 5, 2004 hearing to respond to EPA comments we received earlier that day.

1. Typographical Correction.

The typographical correction we are proposing is a correction to conform the regulation to the

evidence presented at the hearing and to the documents we published for public review and

comment.

a. Conforming the regulation to the evidence. In terms ofthe evidence, NMED's written

testimony stated that the setback distances in the regulation were determined based upon the

monitoring study of a working cotton gin:

"Exhibit 4 is the Air Quality Monitoring Study Report. The setback distances

in Part 2.66 are based upon the results ofthis monitoring study."

See Written Testimony ofLany Weaver, p. 5. Table 1 to the written testimony also cites to

the monitoring study as the source ofthe setback distances.

In addition, Lany Weaver's oral testimony at the Oct. 5, 2004 hearing cited the monitoring

study as the source ofthe setback distances:

"And the setback distances are a function ofhow much particulate matter the

gin is permitted to emit, or ifthe gin is going to emit 50 tons per year, then

they would need to have a greater distance to the property line -- the setback

distances were developed as part of an ambient air quality monitoring

study, which is Exhibit 5, is how we determine what those setback distances

need to be to assure that at the property line ambient standards are met."
Tr. 16 (Emphasis added).

The typographical error occurred when we tried to express the setback distances in the

regulation.

b. The typographical error.

The equation in Figure 8 ofthe monitoring study is correct:

y= -248.74457 + 16.48113 X + 0.0771 X2 [in units ofmeters]

The mistake occurred when we tried to transfer the equation into the regulation. We wanted

to express the distances in feet in the regulation, but we mistakenly used the metric

coefficients. The equation in the revised proposed regulation NMED Exhibit 2 contains the

error -- using the same metric coefficients from the monitoring study but describing the

distances in the regulation in units offeet:

y= -248.74457 + 16.48113 X + 0.0771 X2 [in units offeet]

The correct equation is stated below. The coefficients in the equation in the corrected

regulation should be converted into feet:

y= -816.0886 + 54.0718 X + 0.02385 X2 [in units offeet]

The correction is made by merely multiplying the metric coefficients by 3.28083 to convert

from meters to feet.

Accordingly, we're proposing to correct the typographical error by revising section 202.F(2)

as follows:

(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 ofPMI0 per hour) and 0.07271 0.02385,

plus the multiple ofthe maximum emission rate (in pounds ofPM10 per hour)

and 16.4g113 54.0718,minus the value 248.74457 816.0886.

c. Conforming the regulation to the documents shared with the public. As you requested,

I'm also enclosing a copy ofthe public notice we published in the New Mexico Register and

the web page where we posted documents for public review and comment. As you'll see, the

monitoring studies that were discussed with the cotton ginners are the documents that were

presented for public comment. The version ofthe regulation with the typographical error was

not published on the web site. It was first used when it was submitted into the record at the

October 5 hearing.

2
2. Further Change Requested and Approved at Oct. 5 Hearing.

During the testimony at the October 5 hearing, the NMED requested a further minor change to

the regulation to address the comments ofthe EPA which were received a few minutes prior

to the hearing. Ms. Weaver requested that the language "and applicable requirements" be

added to section 202. Tr. 26, 30-31. This was in response to a comment made by the EPA in

its October 5, 20041etter which was faxed to the NMED that day and submitted into the

record (See attachment).

Please let me know ifthis answers your questions. 1'd be happy to discuss this with you

further or provide any other information you need. Thanks for your cooperation.

Very truly yours,

~·~:v·/

~"'v ,/'". //~

AsWey C. Schannauer

cc: Mary Uhl, Air Quality Bureau

3
, '1"\~'\ ~Op : . t...., STATE OF NEW MEXICO '--_,~/

ENVIRONMENTAL IMPROVEMENT BOARD

PETITION FOR PUBLIC 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

The New MexicoEnvironment Department (Department) hereby moves the

Environmental Improvement Board (EIB) to resume its deliberations and reopen the

record for the purpose of correcting a mistake made by the Department in the version of

the regulation voted upon at the EIB's October 5, 2004 hearing.

1. On July 19, 2004, the Department filed a petition with the EIB for the

adoption of a new chapter to the New Mexico Administrative Code regulating emissions

from cotton gins. The proposed regulations had two primary elements -- (i)

specifications for air pollution control equipment to minimize emissions and (ii) setback

distances to ensure that remaining emissions would not adversely affect ambient air

quality on adjoining properties.

2. The Department developed the proposed regulation, in part, through the

performance of a monitoring study (NMED Exhibit 5) to determine the appropriate

setback distances and through consultations with affected parties, including the cotton gin

industry.

3. The monitoring study produced a mathematical formula that determined

the appropriate setback distance for any level of emissions. The mathematical formula

and all evidence that backed the formula was compiled in a technical support document
for the proposed regulation (NMED Exhibit 5). This document was available on the

NMED website and was provided to all interested parties. It was the Department's intent

to incorporate the formula into the proposed regulation.

4. The EIB held a hearing on the proposed regulation on October 5, 2004,

during which the Department presented testimony and several exhibits. The exhibits

included the monitoring study (NMED Exhibit 5) and a proposed regulation (NMED

Exhibit 2) in which the Department attempted to incorporate the formula from the

monitoring study.

5. Two additional people testified at the hearing, both ofwhom supported the

Department's proposal, and, at the conclusion ofthe hearing, the EIB voted to approve it.

6. After the hearing, the Department discovered that the proposed regulation

in NMED Exhibit 2 was in error. \Vhen attempting to incorporate the formula from

NMED Exhibit 5 into NMED Exhibit 2, the Department failed to fully convert the

formula from meters into feet.

7. The error was not in tlie monitoring study (NMED Exhibit 5), which is the

document the parties had been discussing in the collaborative process prior to the hearing.

The monitoring study was the apparent basis on which the cotton gin industry supported

the proposed regulation.

8. The error was also not in the draft regulation that had been circulated to

interested parties prior to the hearing. The first document that contained the error was the

version ofthe regulation (NMED Exhibit 2) submitted to the Board when the Department

presented its testimony on the day ofthe hearing, October 5, 2004.

2
9. The monitoring study expressed the formula for calculating setback

distances in meters, and the Department intended to express the setback distances in the

regulations in feet. In preparing NMED Exhibit 2, the Department included a formula

that labeled the calculations produced in the formula in "feet" but used 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 + 0.0771 X2 [in units ofmeters]

11. The formula in NMED Exhibit 2 contains the error. It attempts to express

the formula in feet, but it uses the same metric coefficients as were used in the

monitoring study:

y= -248.74457 + 16.48113 X + 0.0771 X2 [in units offeet]

12. The correct formula is stated below. The correction is made merely by

multiplying the metric coefficients by the conversion factor of 3.28083 to convert from

meters to feet:

y= -816.0886 + 54.0718 X + 0.02385 X2 [in units offeet]

13. When corrected, section 202.F(2) ofthe proposed regulation should read

as follows:

(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 of

the maximum emission rate (in pounds ofPM10 per hour) and 0.07271

0.2385, plus the multiple ofthe maximum emission rate (in pounds of

PM10 per hour) 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

regulation nor has it filed the regulation with the State Records Center and Archives for

publication in the New Mexico Register. The regulation does not become final until it is

published in the New Mexico Register.

15. The Department is requesting the correction ofthe regulation now instead

of allowing the mistaken regulation to become effective and proceeding later with a new

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. \\!hen properly adopted, the proposed regulations will

promote the use ofthe air pollution controls specified in the regulation and the

implementation ofthe setback distances. These measures will help control air pollution,

the primary goal ofthe EIB's air pollution regulations.

17. Ifthe new mistaken regulation is allowed to become final, it will create

confusion and forestall efforts to control air pollution. As was noted at the 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 by the U.S.

Environmental Protection Agency (EPA). Ifthe regulation approved by the Board is

inconsistent (i.e., less stringent) than the formula developed in the monitoring study

(NMED Exhibit 5), EPA will not approve the regulation's inclusion in the SIP. This

prospect will cast immediate doubt on the enforceability ofthe regulations and on the

validity of any permits issued under them.

18. Ifthe EIB finalizes the mistaken regulation, the confusion regarding the

validity ofthe regulations will likely delay the installation ofthe control equipment

4
required by the regulations causing the continuation of current levels of air pollution 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 conflict with the purposes ofthe AQCA.

Wherefore, the Department respectfully requests that the EIB resume its

deliberations and reopen the record for the purposes ofintroducing the corrected version

ofthe proposed regulation, NMED Exhibit 6, and approving the corrected regulation.

Respectfully submitted,

Ashley C. Schannauer

Assistant General Counsel

Certificate of Service

I certify that on February 7,2005 a copy ofthe foregoing Motion was sent via

first class mail to:

Ed Hughs

Southwestern Cotton Ginning Research Laboratory

300 East College Drive

P.O. Box 578

Mesilla Park, NM 88047

Cecilia Abeyta

New Mexico Farm and Livestock Bureau

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 ISSUING AGENCY: Environmental hnprovement Board.

[20.2.66.1 NMAC - N, MO-DY-YR]

20.2.66.2 SCOPE: All persons who intend to construct or modify a cotton ginning facility

as defined in this part, except as otherwise provided by 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 except where a later date is cited at the end

of a section.

[20.2.66.5 NMAC - N, 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 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 Air Act, Section 110(a).

[20.2.66.6 NMAC - N, 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 a unit ofmeasurement to denote an amount oflint cotton with a

nominal weight of 500 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 of any regulated air contaminant for which there is a national

ambient air quality standard, and that has 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.

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 of cylinder to cone length,

where D is the diameter ofthe cylinder portion. A 2D-2D cyclone would exhibit a cylinder

length of 2 x D and a cone length of2 x D, with a ninety percent (90%) efficiency for total

suspended particulates. A ID-3D cyclone would exhibit a cylinder length of 1 x D and a cone

length of 3 x D, with a ninety-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 cotton lint handling system and battery condenser.

I. "Non-attainment" means designated by the United States environmental

protection agency as not meeting one or more ofthe national ambient air quality standards.

J. "Opacity" means the degree to which emissions reduce the transmission oflight

and obscure the view of an 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 under the permit has 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 part may 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 UNDER 20.2.72 NMAC: The department shall not

deny issuance or revision of an air quality construction permit under 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 of permit applications under Paragraphs (1)

through (3), (5) through (15) of Subsection A of 20.2.72.203 NMAC and Subsections B through

E of 20.2.72.203 NMAC;

B. state that this part is applicable to the cotton ginning facility;

C. propose maximum allowable annual and hourly emissions from the facility, and

include proposed limitations to hours of operations and other limitations that will result in

allowable emissions of no more than fifty (50) tons per year of any regulated air contaminant for

which there is a national ambient air quality standard; and

20.2.66 NMAC 2
D. include the proposed best system of emissions reduction for the facility, which for

purposes ofthis part shall include at a minimum the controls, limitations, plans and practices set

out in 20.2.66.202 NMAC.

[20.2.66.201 NMAC - N, MO-DY-YR]

20.2.66.202 PERMIT REQUIREMENTS: Permits issued in accordance with 20.2.66.200

NMAC shall include the following best system of emissions reduction, as well as other

conditions, including but not limited to recordkeeping, monitoring, reporting requirements, and

test methods, as required to ensure the enforceability ofpermit conditions and applicable

requirements.

A. Limitations from application: except as modified by the department, the proposed

emission reduction system and limitations specified in the application.

B. Emissions control on high pressure exhausts.

(1) All emissions from high pressure exhausts shall be controlled by the use of a

high 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 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 controlled by the use ofscreens with a mesh size of 70 by 70 or finer

(U. S. sieve), or the use ofperforated condenser drums with holes not exceeding 0.045 inches in

diameter, or with equipment of equivalent or higher design efficiency, as determined by the

department.

(2) The opacity of visible emissions from low pressure exhausts shall not exceed

twenty percent (20%).

D. A fugitive dust management plan that includes the following, or methods at least

as effective in controlling fugitive dust.

(1) Complete enclosure of all burr hoppers.

(2) Measures to be taken to control fugitive dust emissions from any source,

process or operation occurring within the cotton gin building to assure that no fugitive dust

emissions to the outside atmosphere from any door, vent, or window are visible.

(3) Measures to be taken to minimize fugitive emissions from the handling,

transportation or disposition of any substance or material that is likely to be scattered by the air

or wind at the facility, including but not limited to materials in the gin yard and haul roads,

including all open areas, right-of ways, storage piles, and vehicles at the facility. Such measures

shall be sufficient to assure that no visible fugitive dust emissions generated from the property

leave the property. Emissions may be controlled by watering, paving and cleaning, surfactants,

or other equivalent means.

(4) The posted speed limit for all vehicles on unpaved haul roads and in unpaved

yard areas shall be no more than 10 miles per hour.

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 other vehicles).

(1) Any emissions from fuel burning equipment shall not exhibit greater than 20

percent opacity.

20.2.66 NMAC 3
(2) The owner or operator shall use only the following fuels: natural gas, liquefied

petroleum gas (LPG), propane, or No.2 diesel fuel with a sulfur content equal to or less than

0.05 percent by 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 ten

(10) feet in all directions, or the distance established in Paragraph (2) of Subsection F of

20.2.66.202 NMAC, whichever is 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 ofPMlO per hour) and 0.07271 0.2385, plus the multiple ofthe maximum

emission rate (in pounds ofPMlO per hour) 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 gin to the nearest class I

area shall be at least three miles.

G. Maintenance of equipment.

(1) All materials handling systems and control equipment shall be installed and

operated as required to assure that permit conditions will be met.

(2) The owner or operator shall conduct daily visual inspection ofthe material

handling systems for leaks, breaks or other visible signs of equipment malfunctions, and repair

such leaks, breaks or malfunctions in a timely manner.

(3) The owner or operator shall maintain a record ofthe daily inspections,

including any equipment malfunctions 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 of Repealed Material: [RESERVED]

Other History: [RESERVED]

20.2.66 NMAC 4
STATE OF NEW MEXICO

ENVIRONMENTAL IMPROVEMENT BOARD

PETITION FOR PUBLIC HEARING TO CONSIDER

ADOPTION OF 20.2.66 NMAC -- COTTON GINS

EIB 04-06

NEW MEXICO ENVIRONMENT DEPARTMENT'S

BRIEF IN SUPPORT OF ITS MOTION FOR THE BOARD TO RESUME

DELIBERATIONS AND REOPEN THE RECORD

1. Introduction.

The Environmental Improvement Board (EIB) has the power to avoid finalizing a

regulation it knows to be in error. Ifthe EIB votes to approve a regulation but before it

takes the actions required to make its decision final (i.e., adopting a Statement ofReasons

and publishing the regulation in the New Mexico Register), the EIB learns that the

regulation contains a mistake, the EIB has the power to resume its deliberations and

reopen the record to correct the mistake.

In regard to the specific facts at issue here, the EIB has the power to resume its

deliberations and reopen the record to correct the mistake made by the Department in

transferring the formula in NMED Exhibit 5 into the version ofthe proposed regulation

submitted to the EIB in NMED Exhibit 2.

2. The Board has the power to reopen the record under section 400.G(4) of

the Board's Rulemaking Procedures.

Section 400.G(4) ofthe Board's Rulemaking Procedures states that the Board

may reopen the hearing on a proposed regulation during deliberations ifthe Board

determines that additional evidence is necessary for a proper decision on a proposed

regulatory change:
(4) If, during the course of deliberations, the Board determines that

additional testimony or documentary evidence is necessary for a proper

decision on the proposed regulatory change, the Board may, consistent

with the requirements of due process, reopen the hearing for such

additional evidence only.

20.1.1.400.G(4) NMAC.

In the present proceeding, the Board voted on the proposed regulatory change at

its October 5, 2004 hearing. The Board still, however, has not adopted a Statement of

Reasons or filed the proposed regulation with the State Records Center and Archives

(SRCA). The Board retains jurisdiction (and the power to act on a regulation) until the

regulation is filed with the SRCA. Only upon filing with the SRCA does the regulation

become final and subject to appeal. NMSA 1978, §74-2-9.A., B. The Board,

accordingly, still has jurisdiction over the proposed regulation and can continue its

deliberations to make a proper decision on the proposed regulatory change.

The Department's motion informs the Board that the proposed regulation in

NMED Exhibit 2 contains a mistake -- the incorrect expression ofthe correct formula for

setback distances contained in NMED Exhibit 5. The additional evidence the

Department proposes to admit is a revised version (NMED Exhibit 6) ofthe proposed

regulation. NMED Exhibit 6 contains a correct expression ofthe correct formula for

setback distances developed in NMED Exhibit 5. This additional evidence is "necessary

for a proper decision on the proposed regulatory change." Without the additional

evidence and the correction, the Board will be adopting a regulation that the Board knows

is incorrect.

2
The requirements of due process can be satisfied by serving the motion upon all

persons who testified during the October 5, 2004 hearing and by notifying the public of

the motion through the mailing the Board undertakes ofits meeting agenda.

3. The Board also has implied and inherent powers to act to prevent the

adoption of a regulation the Board knows to contain an error.

Administrative agencies have the powers explicitly stated in their enabling

statutes and regulations and such additional implied and inherent powers to implement

the purposes ofthe statutes they are charged with implementing. "It is a fundamental rule

of construction that when a power is conferred by statute everything necessary to carry

out the power and make it effective and complete will be implied." 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 subject to the need

to exercise such powers.

a. Implied Powers. Regulations on procedural issues cannot provide for every

eventuality in the course of an administrative proceeding. Agencies sometimes need to

exercise additional powers that are similar to and implied from powers that are

specifically authorized. See AA 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 Board the

express authority to open a record by holding a hearing, 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 of deliberations. As long as the

Board retains jurisdiction ofthe regulation (i.e., before the regulation is filed with the

3
SRCA), it appears implicit that the EIB would also have the authority to reopen the

record to correct a mistake (so long as the Board affords parties notice ofits actions).

Since the regulation is not final until it is published in the New Mexico Register, there

would appear to be no reason why the EIB could not exercise this related, implicit

power.

1

b. Inherent Powers. Courts have also upheld the exercise ofinherent powers

when the powers are required to effectuate the purposes ofthe statute they are charged

with implementing. See Baca v. Grisolano, 57 N.M. 176,256 P.2d 792 (1953) (Supreme

Court approved the inherent power ofthe Chief ofthe Division of Liquor Control to

revoke a liquor license that had been granted by mistake on the grounds the revocation

was necessary to carry out the purposes ofthe statute); Property Tax 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 Act is to prevent or

abate air pollution. NMSA 1978, §74-2-5.A. A closely related duty is to adopt

regulations "to attain and maintain national ambient air quality standards and prevent or

abate air pollution. NMSA 1978, §74-2-5.B.

It seems clear that proceeding forward to finalize a regulation (with the adoption

of a Statement ofReasons and the publication of a regulation) that the EIB knows is

mistaken will not prevent air pollution, the primary purpose ofthe EIB under the AQCA.

Indeed, a decision not to act under these circumstances would appear to conflict with the

1 The procedural aspects ofthe conduct of an agency's proceedings are often considered to be

parliamentary in nature and left to the guidance ofRobert's Rules ofOrder. Indeed, Robert's Rules of

Order provides for the "reconsideration" of a body's decision. Robert's Rules of Order, Revised, §36

(1996).

4
purposes ofthe Air Pollution Control Act. It, therefore, seems reasonable to interpret the

EIB's powers to include the power to continue its deliberations and reopen the record for

the purpose of correcting the mistake.

Indeed, the EIB used its inherent power to reconsider a rulemaking decision in

Kerr-McGee Nuclear Corporation v. New Mexico Environmental Improvement Board,

97 N.M. 88,637 P.2d 38 (1981). Kerr McGee involved the exercise ofthe Board's

power to reconsider radiation protection regulations. After adoption ofthe regulations on

November 18, 1979, Kerr-McGee filed a petition with the EIB on March 14, 1980 asking

the EIB to reconsider its decision and to schedule time on its April agenda for further oral

argument. In response, the EIB voted to "suspend" the regulations until the April

meeting, but at the April meeting, the EIB failed in a tie vote to approve the lifting ofthe

suspension. The court addressed the issue ofwhether the suspension had failed to have

been lifted or whether the suspension merely expired at the April meeting. The Board's

authority to reconsider the regulations was presumed and not challenged.

Under the facts ofthe present case, ifthe EIB does not reopen 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 at the 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 by the U.S. Environmental Protection Agency (EPA). Ifthe

regulation approved by the Board is inconsistent (i.e., less stringent) than the formula

developed in the monitoring study (NMED Exhibit 5), EPA will not approve the

5
regulation's inclusion in the SIP. This prospect will cast immediate doubt on the

enforceability ofthe regulations and on the validity of any permits issued under them.

As things stand now, certain cotton gins are waiting for the adoption ofthe new

regulations to obtain permits. When properly adopted, the proposed regulations will

promote the use ofthe air pollution controls specified in the regulation and the

implementation ofthe setback distances. These measures will help control air pollution -

- the primary goal ofthe EIB's air pollution regulations.

Ifthe EIB finalizes the mistaken regulation, the confusion regarding the validity

ofthe regulations will likely delay the installation ofthe control equipment required by

the regulations causing the continuation of current levels of air pollution 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 conflict with the purposes ofthe AQCA.

As a result, the power to reopen the record to correct a regulation before it has

become a final decision can be considered an inherent power ofthe EIB.

4. The Board's authority to reopen the record to correct mistakes is similar

to the authority under Rule 1-060 of the New Mexico Rules of Civil Procedure.

The authority to continue the Board's deliberations and to reopen the record to

gather the additional evidence required to correct mistakes is similar to the authority

courts exercise under the New Mexico Rules ofCivil Procedure. Rule 1-060 grants

courts the authority to reopen the record to correct even final decisions for mistakes and

other reasons. Rule 1-060 NMRA.

Although the Rules ofCivil Procedure do not apply directly to administrative

agencies, they do illustrate the prevalence ofthe principle that the power to reopen a

6
record to correct mistakes is necessary to effectuate the purposes of decision-making

bodies.

5. Conclusion.

Because the EIB has not adopted a Statement ofReasons and published the

regulation in the New Mexico Register, it still has jurisdiction over the Cotton Gin

regulations. The Department's Motion informs the EIB that the regulation it voted on at

its October 5, 2004 meeting contains an error. The Department believes that the EIB has

the explicit and implicit power to act to correct the regulation while it has the chance to

do so, and the Department is requesting that the error be corrected. There are no apparent

legal or practical reasons to proceed with the actions (i.e., adoption of a Statement of

Reasons and publication ofthe mistaken regulation) required to finalize the mistaken

regulation, to thereby create confusion in the implementation ofthe regulation and then to

start an entirely new rulemaking proceeding process to correct the regulation ifthe

correction can be accomplished now.

Respectfully submitted,

Ashley C. Schannauer

Assistant General Counsel

7
Certificate of Service

I certify that on February 7,2005 a copy ofthe foregoing Briefwas sent via

first class mail to:

Ed Hughs

Southwestern Cotton Ginning Research Laboratory

300 East College Drive

P.O. Box 578

Mesilla Park, NM 88047

Cecilia Abeyta

New Mexico Farm and Livestock Bureau

P.O. Box 20004

Las Cruces, NM 88004

Ashley C. Schannauer

Assistant General Counsel

8
BILL RICHARDSON

GOVERNOR

State ofNew Mexico

ENVIRONMENTDEPARTMENT

Office ofGeneral Counsel

Harold Runnels Building

1190 St. Francis Drive, P.O. Box 26110

Santa Fe, New Mexico 87502-6110

Direct Telephone (505) 827-6891

Facsimile (505) 827-1628 RON CURRY

SECRETARY

-February24; 2005

Barbara Claire

Board Administrator

Environmental Improvement Board

1190 St. Francis Drive

Santa Fe, NM 87502

Re: Cotton Gin Regulation, Em 04-06

Dear Ms. Claire:

Please substitute the enclosed page 3 in the Department's Motion for the Board to Resume

Deliberations and Reopen the Record in the above proceeding. The substitute page does not

change the Department's proposal to have the Board adopt NMED Exhibit 6 (attached to the

original Motion), and it does not change the text ofNMED Exhibit 6. The changes relate

merely to the Department's description ofthe mistake that the Department is proposing to

correct.

The following are the changes:

Paragraph 10: The number 0.0771 is changed to 0.07271.

Paragraph 11: The number 0.0771 is changed to 0.07271

Paragraph 12: The number 0.02385 is changed to 0.2385

The substitute page has also been faxed to the people who presented testimony at the October

5, 2004 hearing.

Thank you for your cooperation. Please let me know ifyou have any questions.

Very truly yours,

Ashley C. Schannauer

cc: Ed Hughs

Cecilia Abeyta

Mary Uhl, Air Quality Bureau
9. The monitoring study expressed the formula for calculating setback

distances in meters, and the Department intended to express the setback distances in the

regulations in feet. In preparing NMED Exhibit 2, the Department included a formula

that labeled the calculations produced in the formula in "feet" but used 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 [in units ofmeters]

11. The formula in NMED Exhibit 2 contains the error. It attempts to express

the formula in feet, but it uses the same metric coefficients as were used in the

monitoring study:

y= -248.74457 + 16.48113 X + 0.07271 X2 [in units offeet]

12. The correct formula is stated below. The correction is made merely by

multiplying the metric coefficients by the conversion factor of 3.28083 to convert from

meters to feet:

y= -816.0886 + 54.0718 X + 0.2385 X2 [in units offeet]

13. When corrected, section 202.F(2) ofthe proposed regulation should read

as follows:

(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 of

the maximum emission rate (in pounds of PM10 per hour) and 0.07271

0.2385, plus the multiple ofthe maximum emission rate (in pounds of

PMI0 per hour) and 16.48113 54.0718, minus the value 248.74457

816.0886.

(Proposed NMED Exhibit 6, attached hereto).

3
2-25-05; 12:40PM;USDA ARS

USDA

iiiIIIi

United States Department of Agriculture

Research, Education and Economics

Agricultural Research Service

February 24, 2004

Ms. Gay Dillingham, Chair

Environmental Improvement Board

1190 St. Francis Drive

Santa Fe, New Mexico 87502

Re: Public Hearing Regarding Cotton Gins

Dear Ms. Dillingham:

;5055251076 # 2/

On October 5, 2004, I testified at the Environmental Improvement Board 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 advisor to the work group that developed the regulation, and testified in support ofthe regulation as

proposed by the Environment Department. It has come to my attention that this regulation has not yet come into

effect due to questions regarding a typographical error in one ofthe exhibits.

I would like to assure you that, when I gave my supporting testimony regarding this regulation, I did so with the

understanding that NMED Exhibit 2 was the correct version ofthe regulation, and was consistent with the

Monitoring Study report (NMED Exhibit 5). My understanding is that the typo was inserted into the exhibit at the

last minute due to confusion between feet (the units in the regulation) and meters (the units in the report). Because

the regulation that was sent to the work group about a week prior to 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 in the text ofNMED Exhibit 6, attached to the Department's motion

relating to Cotton Gin Regulation, EIB 04-06, and as modified by the February 24, 2005 letter from Ashley C.

Schannauer to Barbara Claire. I urge you to act on this matter as soon as possible. It will greatly benefit Mesa

Farmer's Cooperative Gin in particular and the New Mexico ginning industry in general to have this regulation in

place. The regulation gives clear guidance to New Mexico gins as to how they may meet particulate emission

control requirements. Time is important because both the NMED and Mesa Farmer's Coop Board desire to have

their approved permit in place before the next ginning season which will start this September. This gives only

seven months to get all the paperwork completed, approved and the permit in place.

Thank you in advance for your cooperation. Please let me know ifyou have any questions.

cc: Cecilia Abeyta, Farm Bureau

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

Sandra Ely, 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 MATTER having come before the Environmental Improvement Board (Board)

upon the Petition ofthe New Mexico Environment Department (NMED or Department) to

consider adoption of20.2.66 NMAC, Cotton Gins, the Board hereby FINDS:

1. The NMED filed a Petition for a Public Hearing to Consider Adoption of20.2.66

NMAC, Cotton Gins ("Cotton Gin Regulation) in Title 20, Chapter 2 ofthe New Mexico

Administrative Code on July 19,2004.

2. The Board scheduled a hearing in this matter for October 5,2004. Notice ofthe

Public Comment Period and Hearing for the proposed regulation was published in the New

Mexico Register on August 31,2004.

3. On September 24,2004, NMED filed a Notice ofIntent to Present Technical

Testimony. The Notice ofIntent listed three potential witnesses: Ms. Lany Weaver, Mr. GiDong Kim and Ms. Mary UbI. The Notice ofIntent also identified NMED's proposed exhibits.

4. On September 24, 2004, Ed Hughs, Research Leader and Agricultural Engineer of

the U.S. Department ofAgrIculture also filed a Notice ofIntent to Present Technical Testimony.

Mr. Hughs indicated he would be testifying in support ofthe proposal on behalf ofthe New

Mexico Cotton Ginners Association.

5. A hearing was convened in this matter on October 5, 2004, before a quorum of

the Board. Ms. Gwen Wardwell, Board member, presided as the designated Hearing Officer.
6. At the hearing, the NMED presented oral testimony and the following exhibits:

Exhibit Title

NMED Exhibit 1

NMED Exhibit 2

NMED Exhibit 3

NMED Exhibit 4

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, an Environmental Analyst in the Control Strategies Section of

the NMED Air Quality Bureau, provided technical testimony in support ofthe Cotton Gin

Regulation. Ms. Weaver submitted written testimony (NMED Exhibit 4) and oral testimony.

Ms. Mary Uhl answered questions from the Board.

8. Ed Hughs presented written testimony and answered questions from the Board.

Mr. Hughs stated his support for the Cotton Gin Regulation.

9. As Ms. Weaver testified, the Cotton Gin Regulation 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 of certain cotton gins (i.e., those emitting 50 tons per year or less of a

pollutant subject to ambient air quality standards) to obtain air quality permits that is simpler

than the current procedures. The legislative amendments state that the Environment Department

may not deny an application for a construction permit ifthe applicant proposes "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." 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 or modification of air pollution sources without a permit. To obtain a permit or

revise an existing permit, a source must show that emissions from the facility will not violate

ambient air quality standards. Part 2.72 generally requires that this showing be made with air

dispersion modeling. Ifthe owner or operator of a facility cannot show that the ambient impacts

ofthe facility's emissions will not exceed air quality standards, then the Department cannot issue

that facility an air quality permit. (NMED Exhibit 4).

11. The proposed Cotton Gin Regulation establishes an alternative permitting

procedure that does not require air dispersion modeling, as envisioned by 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 management plan) to minimize particulate matter emissions and setback distances

to ensure the maintenance of ambient air quality standards adjacent to cotton gin properties.

(NMED Exhibit 4).

12. The minimum technical standards are typical ofstandards for gins across the

country. These standards are consistent with the definition of "best system of emissions

reduction" in the 2003 statutory amendments. (NMED Exhibit 4).

13. A monitoring study performed by the Department, however, indicates that the

minimum technical standards alone are not sufficient in all cases to prevent the exceedance of air

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 a part, 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 at the Mesa Farmers 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 of a robust monitoring

study in lieu of a modeling analysis where there is no applicable model. (NMED Exhibit 4).

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 Center regarding regulatory formatting. (NMED

Exhibit 4).

16. The NMED requested that the Board adopt the proposed Part 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 added to the end ofthe first sentence in section 202

ofthe proposed regulation. (Tr. 30-31). Finally, the NMED requested that it be granted

permission to correct typographical errors and make any additional non-substantive formatting

changes requested by the State Records and Archives Center prior to filing the rule (Tr. 31-32;

NMED Exhibit 4).

17. After the conclusion ofthe testimony, the Board approved the Cotton Gin

Regulation in accordance with the Nl\.1ED's request.

II
18. After conclusion ofthe hearing, the NMED noticed an error in NMED Exhibit 2.

The Monitoring Study (NMED Exhibit 5) on which NMED Exhibit 2 was based described the

recommended setback distances in a formula expressed in meters and stated that the 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 New Mexico Register, the NMED,

on February 7, 2005, filed a Motion for the Board to Resume Deliberations and Reopen the

Record pursuant to 20.1.1.400.G(4) NMAC. The Motion asked the Board to resume

deliberations and reopen the record for the purpose of approving a corrected version (proposed

NMED Exhibit 6) ofthe proposed Cotton Gin Regulation. The Motion was served upon the

people who testified at the 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

sent by the Board to the public.

20. In response to the NMED's Motion, Ed Hughs, who testified at the October 5,

2004 hearing, sent a letter to the Board, informing the Board that he agreed that the mistake in

NMED Exhibit 2 was a typographical error. He requested the Board to approve the correctly

stated version ofthe regulation in NMED Exhibit 6.

21. On March 1, 2005, the Board considered the NMED's Motion to Resume

Deliberations and Reopen the Record and voted to resume deliberations and reopen the record.

The Board voted to admit NMED Exhibit 6 into the record and then voted to adopt the 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 air that are consistent with public health, including the consideration of

impacts on sensitive populations, such as the very young, the elderly, and those with respiratory

conditions. NAAQS standards are in effect for PMlO and PM2.5.

2. The federal Clean Air Act requires state and local air quality jurisdictions 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 use to implement the Clean

Air Act. The New Mexico SIP includes a New Mexico Ambient Air Quality Standard for total

suspended particulates (TSP) established by 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 New Mexico SIP and all revisions to it are subject to review and approval by

the EIB and the USEPA.

5. The Board has the authority to "adopt, promulgate, publish, amend and repeal

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 Gin Regulation 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 of air quality ambient standards,
additional protections are required. The setback distances proposed by the Department assure

that health-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 of ambient 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 caused by air pollution.

9. The Cotton Gin Regulation is technically practicable and economically

reasonable.

10. The error in NMED Exhibit 2 is acknowledged and the corrected version ofthe

regulation in N1v1ED Exhibit 6 should be approved.

11. The effective date ofregulations approved by the Board is no sooner than thirty

days after the filing ofthe Cotton Gin Regulation under the State Rules Act. NMSA, 1978 §74-

1-9.G.

The Board therefore ORDERS:

1. The Cotton Gin Regulation as proposed by the Department in NMED Exhibit 6,

to be codified in Title 20, Chapter 2, Part 66 NMAC and with any appropriate formatting or

other changes necessary to file this regulation with the New Mexico State Records Center, is

hereby adopted.

2. The New Mexico SIP is hereby amended to incorporate the Cotton Gin

Regulation approved in this Order.

3. The Cotton Gin Regulation will become effective on April 7,2005.
APPROVED

=A~ Chairperson

Environmental Improvement Board

Dated this day of /fV}t::.{L ,2005.

o
STATE OF NEW MEXICO

ENVIRONMENTAL IMPROVEMENT BOARD

IN THE l\1ATTER OF THE PETITION

FOR PUBLIC HEARING CONSIDER ADOPTION

OF 20.2.66 NMAC - COTTON GINS

CERTIFICATE OF SERVICE

NO. EIB-04-06

I hereby certify that the foregoing Statement ofReasonsfor Adoption 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, Santa Fe,

NM 87502 on March 17,2005. A copy will be provided to the Environmental

Improvement Board members at the next meeting, scheduled for AprilS, 2005.

I hereby certify that on the 1i h day ofMarch, 2005 a true and correct copy ofthe

attached Statement ofReasonsfor Adoption was sent by 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

Santa Fe, New Mexico 87502

(505) 827-2425 Phone

(505) 827-2836 Fax