Bill Richardson Governor 

# State ofNew Mexico Office ofthe Governor
November 2, 2006

....v rn 

### o rn 

## < m o. 

# " :x N Mayor Richard Greene R(;gional Administrator U.S. Environmental Protection Agency, Region 6 1445 Ross Avenue Dallas, Texas 75202-2733
Dear Mayor Greene: rt1 X -,i
:z:
r » ."

::0 (f) C < ift W 

## e C7\ On behalfofthe New Mexico Environment Department, I am pleased to submif'fo the Environmental Protection Agency the enclosed revisions to the New Mexico State Implementation Plan (SIP). This revision includes amendments to New Mexico Administrative Code (NMAC) regulations 20.2.3 NMAC

- AmbientAir Quality Standards; 20.2.70 NMAC

- Operating Permits; 20.2.72 l\TMAC

- Construction Permits; and 20.2.99 NMAC

-- Conformity to the State Implementation Plan ofTransportation Plans, Programs andProjects. The hearing records for these SIP revisions are attached, which include the filed regulations, transcripts, exhibits, public notices, affidavits ofpublication, notices ofintent to testify and public comments.
Should you have any questions concerning this SIP submittal, please contact Richard Goodyear, Acting Air Quality Bureau Chief, at 505-827-1494. Sincerely, 

# M!ZJ-J.-

Bill Richardson Governor ofNew Mexico
BR/mw Cc: David Neleigh, EPA Region 6 Peggy Wade, EPA Region 6 Tom Diggs, EPA Region 6 Ron Curry, NMED, Cabinet Secretary Richard Goodyear, NMED, Air Quality Bureau 6RA.•..•..•.......6EN•....•.•........• 60RA 6WQ

. 6MD 

### 6SF

. 60EJ 6RC··· if············· 6 PD 

# v:. 6XA

..kkr:

..

### cn,:~ 

# .. t'A,z 1'L'6-{

State Capitol • Room 400 • Santa Fe, New Mexico 87501 • 505-476-2200 • www.govemor.state.nm.us(' L 

### NMAC TRANSMITTAL FORM

" .c>II'**~d'd ,"~"**  "**,-~,-** -- P.O. Box 26110,1190 St. Francis Drive, Santa Fe, New Mexico 87502

t4l'l"COntach-wson 

# .**-~** -**~,** - ,;,.**'"";~~-** 

### • 

# ..**.~ "'&'J!T'~;~"._~~~**  

# . -, 

### Name Tannis Fox . -. - ../(505)

- FAX (505)**827~1628** Phone# 1827-1603



### - -- E-mail Tannis.fox@state.nm.us

New 

# W Amendment 

# D Renumber 

# D Repeal 

# D Emergency 

# 0

m Title Environmental Protection 8/1/06

. Chapter .Pa Air Quality (Statewide) Ambient Air Quality Standards 9/6/06

-;.. - • I... I

2 1. Please Nstattachments andInternetsite(s) if' applicable ,

### ~~~~-.",~._**~.,** •.

### ~.**~. ~}~~J-~~**  

### me"

..meR' on .'

- 

### men**m~mt';S.c** Limitation ofApplicability to 20.2.70 NMAC 20.2.3.9 NMAC 

### Amended one f)e.ctiDn

No X Yes

3.

"
YesD Public domain

# 0

Name:

Title: Gay Dillingham



### --s Checkifdelegated authority 

## D**8~** 

## J-Ob Date Si ned

SRC·2000-02 5/26/2000i' L**,,~.** ;

-. ,-.- 1-

This is an amendment to 20.2.3 NMAC, the addition oftext in Section 9 effective on 9/6/06.
20.2.3.9 LIMITATION OF APPLICABILITY TO 20.2.70 NMAC. The requirements ofthis part are not applicable requirements under 20.2.70 NMAC, as definedby thatpart. This section does not limit the applicability ofthis part to sources required to obtain apermitunder20.2.72 NMAC, nor does it limit which terms and conditions ofpermits issuedpursuant to 20.2.72 NMAC are applicable requirements for permits issued pursuant to 20.2.70 NMAC. [20.2.3.9 NMAC

- N, 9/6/06] (20.2.3.9] 20.2.3.10 to 20.2.3.107 [RESERVED]

20.2.3 NMAC· I; 

### G 

## NMACTRANSMITTAlFORM 1.24.10 NMAC [Sequence # ]

I Environmental Improvement Board 

## 1_ 6

_ 6

_

7

## _°°

_ '3;iAaencv:i;Address'iJl;:ii;;'; nl' ",,;ii; P.O. Box 26110, 1190 St. Francis Drive, Santa Fe, New Mexico 87502

h 

# IPhone # (505) 

# - FAX (505) 827-1628 Name Tannis Fox 827-1603 E-mail Tannis.fox@state.nm.us

New 

# 0 Amendment 

# W Renumber 

# D Repeal 

# U Emergency 

# 0

9/6/06**~~2;Amr#ltiffi~nf'IMKc(el~iiJW;!10j:** 20.2.70.5 NMAC 20.2.70.7 NMAC 20.2.70.201 NMAC 20.2.70.300 NMAC 20.2.70.302 NMAC 20.2.70.304 NMAC 8/1/06

Effective Date Definitions Requirement for a Permit Permit Applications Permit Content Emer en Provision

Reference / Internet site No X Yes Please listattachments andInternetsite(s) if applicable 1.
2 3. 

# NoD YesD Public domain

# 0

SRC-2000-02 5/26/2000This is an amendment to 20.2.70 NMAC, Sections 5, 7, 201,300,302 and 304 effective on 9/6/06.
20.2.70.5 EFFECTIVE DATE: 11130/95, except where alater date is cited atthe end ofa section. [11130/95; 20.2.70.5 NMAC

- Ro, 20 NMAC 20.2.70.1.104,06/14/02; A, 9/6/06] [The latest effective date ofany section in this Partis 9/6/06.]
20.2.70.7 DEFINITIONS: In addition to the terms defIned in 20.2.2 NMAC (defInitions), as used in this partH the following defmitions shall apply. A. "Acid rain source" has the meaning given to "affected source" in the regulations promulgated underTitle IV ofthe federal act, and includes all sources subjectto Title IV ofthe federal act. B. "Affected programs" means all states, local airpollution control programs, and Indian tribes and pueblos, that are within 50 miles ofthe source. C. "Air pollutant" means an airpollution agent or combination ofsuch agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation ofany airpollutant, to the extentthe administratorhas identifIed suchprecursor or precursors for the particularpurpose for which the term "airpollutant" is used. This excludes watervapor, nitrogen (N2), carbon dioxide (C02), oxygen (02), methane and ethane. D. "Airpollution control equipment" means any device, equipment, process or combination thereof, the operation ofwhich would limit, capture, reduce, confIne, or otherwise control regulated airpollutants or convert for the purposes ofcontrol any regulated airpollutantto another form, another chemical or anotherphysical state. This includes, but is not limited to, sulfurrecovery units, acid plants, baghouses, precipitators, scrubbers, cyclones, water sprays, enclosures, catalytic converters, and steam or water injection. E. "Applicable requirement" means all ofthe following, as they apply to a Part70 source or to an emissions [I:lflits] unit at a Part 70 source (including requirements thathave beenpromulgated or approved by the board or US EPA through rulemaking atthe time ofpermit issuance buthave future-effective compliance dates)[-:-L (1) Any standard or otherrequirementprovided for in the New Mexico state implementationplan approved byUS EPA, orpromulgated by US EPA through rulemaking, under Title I ofthe federal act to implement the relevant requirements ofthe federal act, including any revisions to thatplan promulgated in40 CFR, Part**52[~L** (2) Any term or condition ofany preconstructionpermitissued pursuant to regulations approved or promulgated throughrulemaking under Title I, including Parts CorD, ofthe federal act, unless that term or condition is determined by the department to be no longerpertinent[tL (3) Any standard or otherrequirementunder Section 111 ofthe federal act, including Section 11 1(d)[tL (4) Any standard or otherrequirementunder Section 112 ofthe federal act, including any requirement concerning accidentprevention under Section l12(r)(7) ofthe federal act[tL (5) Any standard or otherrequirement ofthe acid rainprogramunder Title IV ofthe federal act orthe regulations promulgated**thereunder[~L** (6) Anyrequirements established pursuant to Section 504(b) or Section 114(a)(3) ofthe federal act[tL (7) Any standard orotherrequirement governing solid waste incineration under Section 129 ofthe federal act[tL (8) Any standard or otherrequirement for consumer and commercialproducts under Section 183(e) ofthe federal act[tL (9) Any standard or otherrequirement for tankvessels under Section l83(f) ofthe federal**act[~L** (10) Any standard orotherrequirement ofthe regulations promulgated to protect stratospheric ozone under Title VI ofthe federal act, unless the administrator has determined that such requirements need notbe contained in a Title V permit[tl (11) Any national ambientair quality**standard[~l** (12) Any increment orvisibility requirement under PartC ofTitle I ofthe federal act, but only as it would apply to temporary sources permitted pursuantto Section 504(e) ofthe federal**act[t-aHd]~** (13) Any regulation adoptedby the board pursuantto the New Mexico Air Quality Control Act, Section 74-2-5(B) NMSA 1978. F. "CFR" means the Code ofFederal Regulations. G. "Draft permit" means a version ofa permit whichthe department offers for public participation or affected programreview. H. "Emission limitation" means arequirement established by US EPA, the board, or the

20.2.70 NMACdepartment, that limits the quantity, rate or concentration, or combination thereof, ofemissions ofregulated air pollutants on acontinuous basis, including anyrequirements relating to the operationormaintenance ofa source to assure continuous reduction. I. "Emissions allowable under the permit" means: (1) any state orfederally enforceable permitterm or condition that establishes an emission limit (including a workpractice standard) requestedby the applicant and approved bythe department or determined at issuance orrenewal to be required by an applicable requirement; or (2) any federally enforceable emissions cap that the permittee has assumed to avoid an applicable requirement to which the source would otherwise be subject. J. "Emissions unit" means any part or activity ofa stationary source that emits orhas thepotential to emit any regulated airpollutant orany airpollutantlisted pursuantto Section 112(b) ofthe federal act. This term is notmeant to alter oraffect the defInition ofthe term "unit" forpurposes ofTitle IV ofthe federal act. K. Federally enforceable" means all limitations and conditions which are enforceable bythe administrator, including those requirements developedpursuantto 40 CFRParts 60 and 61, requirements within the New Mexico state implementation plan, and any permit requirements establishedpursuantto 40 CFR 52.21 orunder regulations approved pursuant to 40 CFR Part 51, Subpart I, including 40 CFR 51.165 and40 CFR 51.166. L. "Final permit" means the version ofan operating permit issued bythe department that has met all review requirements of20.2.70.400 NMAC

- 20.2.70.499 NMAC. M. "Fugitive emissions" are those emissions which could notreasonably pass through a stack, chimney, vent, or otherfunctionally-equivalent opening. N. "General permit" means an operating permit thatmeets the requirements of20.2.70.303 NMAC. O. "Hazardous air pollutant" means an air contaminant that has been classifIed as ahazardous air pollutantpursuantto the federal act. P. "Insignificant activities" means those activities whichhave been listed by the department and approved bythe administratoras insignifIcant on the basis ofsize, emissions orproduction rate. Q. "Major source" means any stationary source (orany group ofstationary sources that are located on one ormore contiguous or adjacentproperties, and are under common control ofthe same person(s» in which all ofthe pollutantemitting activities at such source belong to the same major group (i.e., all have the same two-digit code), as described in the standard industrial classifIcation manual, 1987, and that is described in Paragraphs (1), (2) or (3) below.(1) A major source under Section 112 ofthe federal act, which is defIned as the following.[7] (a) Forpollutants otherthan radionuclides, any stationary source or group ofstationary sources located within a contiguous area andunder common control that emits orhas the potential to emit, in the aggregate, 10 tons or more peryear ofany hazardous airpollutant which has been listedpursuantto Section 112 (b) ofthe federal act, 25 ormore tons peryearofany combination ofsuch hazardous airpollutants (including any major source offugitive emissions ofany suchpollutant, as determinedbyrule by the administrator), or such lesser quantity as the administratormay establishbyrule. Notwithstanding the preceding sentence, hazardous emissions from any oil orgas exploration orproduction well (with its associated equipment) and hazardous emissions from anypipeline compressororpump station shall notbe aggregated with hazardous emissions from othersimilarunits, whether ornot such units are in a contiguous area orundercommon control, to determine whether such units or stations are major sources. (b) Forradionuclides, "major source" shall have the meaning specifiedby the administratorby rule. (2) A major stationary source ofairpollutants that directly emits orhas the potential to emit, 100 or more tons peryear ofany air pollutant (including any major source offugitive emissions ofany suchpollutant, as determinedbyrule by the administrator). The fugitive emissions ofa stationary source shall notbe considered in determining whetheritis a major stationary source for the purposes ofthis paragraph, unless the source belongs to one ofthe following categories ofstationary sources: (a) coal cleaning plants (with thermal dryers); (b) kraft pulp mills; (c) portland cementplants; (d) primary zinc smelters; (e) iron and steel mills; (f) primary aluminum ore reductionplants; (g) primary copper smelters; (h) municipal incinerators capable ofcharging more than 250 tons ofrefuse perday;

20.2.70 NMAC 2(i) hydrofluoric, sulfuric, ornitric acid plants; (j) petroleumrefineries; (k) lime plants; (1) phosphate rockprocessing plants; (m) coke ovenbatteries; (n) sulfurrecovery plants; (0) carbonblackplants (furnace process); (P) primary lead smelters; (q) fuel conversionplant; (r) sintering plants; (s) secondary metal productionplants; (t) chemical process plants; (u) fossil-fuel boilers (or combination thereot) totaling more than 250 millionBritishthermal units perhour heat input; (v) petroleum storage and transferunits with a total storage capacity exceeding 300,000 barrels; (w) taconite oreprocessing plants; (x) glass fiber processing plants; (y) charcoalproductionplants; (z) fossil fuel-fired steam electric plants ofmore than 250 million Britishthermalunits perhour heatinput; (aa) any other stationary source category, which as ofAugust 7, 1980 is being regulatedunder Section 111 or 112 ofthe federal act. (3) A major stationary source as defined in PartD ofTitle I ofthe federal act, including: (a) for ozone non-attainment areas, sources with thepotential to emit 100 tons ormoreperyear ofvolatile organic compounds ornitrogen oxides in areas classified as "marginal" or "moderate," 50 tons ormore peryearin areas classified as "serious," 25 tons ormore peryear in areas classified as "severe," and 10 tons ormore peryearin areas classified as "extreme"; exceptthat the references in this paragraphto 100,50,25, and 10 tons per yearofnitrogen oxides shall not apply with respect to any source for which the administratorhas made a fmding, under Section 182(t)(l) or (2) ofthe federal act, thatrequirements under Section 182(t) ofthe federal act do not apply; (b) for ozone transport regions establishedpursuantto Section 184 ofthe federal act, sources withthe potential to emit 50 tons ormore peryearofvolatile organic compounds; (c) for carbonmonoxide non-attainment areas (1) that are classified as "serious," and (2) in which stationary sources contribute significantly to carbonmonoxide levels as determined underrules issued by the administrator, sources with thepotential to emit50 tons ormoreperyear ofcarbon monoxide; and (d) forparticulate matter (PMI0) non-attainment areas classified as "serious," sources with the potential to emit 70 tons ormoreperyear ofPMlO. R. "Operating permit" or "permit" (unless the context suggests otherwise) means any permitor group ofpermits covering a source that is issued, renewed, modified orrevised pursuantto this part. S. "Operator" means the person orpersons responsible for the overall operation ofa facility. T. "Owner" means theperson orpersons who own a facility orpart ofa facility. U. "Part" means an air quality controlregulationunder Title 20, Chapter2 ofthe New Mexico Administrative Code, unless otherwise noted; as adopted oramendedby the board. V. "Part 70 source" means any source subjectto the permitting requirements ofthis part, as provided in 20.2.70.200NMAC

- 20.2.70.299 NMAC. W. "Permit modification" means a revisionto an operating permitthat meets the requirements of significantpermitmodifications, minorpermitmodifications, or administrativepermit amendments, as defmed in 20.2.70.404 NMAC. X. "Permittee" means the owner, operatororresponsible official at apermitted Part 70 source, as identified in any permitapplication ormodification. Y. "Portable source" means any plantthat is mounted on any chassis or skids and which canbe moved bythe application ofa lifting orpulling force. In addition, there shall be no cable, chain, turnbuckle, bolt or othermeans (except electrical connections) by which any piece ofequipmentis attached or clamped to any anchor, slab, or structure, includingbedrock, that mustbe removedpriorto the application ofa lifting orpulling force for the purpose oftransporting the unit. Portable sources may include sand and gravel plants, rock crushers, asphaltplants

20.2.70 NMAC 3and concrete batchplants which meet this criteria. Z. "Potential to emit" means the maximum capacity ofa stationary source to emit any airpollutant under its physical and operational design. Anyphysical or operationallirnitation on the capacity ofa source to emit an airpollutant, including airpollution control equipment andrestrictions on hours ofoperation or on the type or amount ofmaterial combusted, stored, or processed, shall be treated as part ofits design ifthe limitation is federally enforceable. The potential to emit for nitrogen dioxide shall be based on total oxides ofnitrogen. AA. "Proposed permit" means the version ofapermit that the departmentproposes to issue and forwards to the administrator for review in compliance with 20.2.70.402 NMAC. AB. "Regulated air poUutant" means the following: (1) nitrogen oxides, total suspendedparticulate matter, or any volatile organic compounds; (2) any pollutant for which a national ambient air quality standardhas been promulgated; (3) any pollutant that is subject to any standardpromulgatedunder Section 111 ofthe federal act; (4) any class lor II substance subject to any standardpromulgatedunder or establishedby Title VI of the federal act; or (5) any pollutant subject to a standardpromulgatedunder Section 112 or any otherrequirements established under Section 112 ofthe federal act, including Sections 112(g), (j), and (r), including the following; (a) any pollutant subject to requirements under Section 112(j) ofthe federal act; ifthe administrator fails to promulgate a standard by the date establishedpursuant to Section 112(e) ofthe federal act, any pollutant for which a subject source would be a major shall be considered to be regulated on the date 18 months after the applicable date established pursuant to Section 112(e) ofthe federal act; and (b) anypollutant for which the requirements ofSection 112(g)(2) ofthe federal act have been met, but only with respect to the individual source subject to a Section 112(g)(2) requirement. AC. "Renewal" means the process by which apermitis reissued at the end ofits term. AD. "Responsible official" means one ofthe following. (1) For a corporation: apresident, secretary, treasurer, or vice-president ofthe corporation in charge ofaprincipal business function, or any otherperson who performs similarpolicy or decision-making functions for the corporation, or a dilly authorized representative ofsuch person ifthe representative is responsible for the overall operation ofone ormore manufacturing, production, or operating facilities applying for or subject to apermit and either a) the facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars), orb) the delegation ofauthority to suchrepresentative is approved in advance by the department. (2) For apartnership or sole proprietorship: a generalpartner or the proprietor, respectively. (3) For amunicipality, state, federal or otherpublic agency: either aprincipal executive officer or ranking elected official. Forthe purposes ofthis part, aprincipal executive officer ofa federal agency includes the chiefexecutive officerhaving responsibility for the overall operations ofaprincipal geographic unit ofthe agency (e.g., a regional administrator ofUS EPA). (4) For an acid rain source: the designated representative (as defined in Section402(26) ofthe federal act) in so far as actions, standards, requirements, orprohibitions under Title IV ofthe federal act or the regulations promulgated thereunder are concerned, and for any otherpurposes under 40 CFR, Part 70. AE. "Section 502(b)(10) changes" are changes that contravene an express permit term. Such changes do not include changes that would violate applicable requirements or contravenepermit terms and conditions that are monitoring (including test methods), recordkeeping, reporting, or compliance certificationrequirements. AF. "Shutdown" means the cessation ofoperation ofany airpollution control equipment, process equipment orprocess for any purpose. AG. "Solid waste incineration unit" means a distinct operating unit ofany facility which combusts any solid waste material from commercial or industrial establishments or the generalpublic (including single and multiple residences, hotels, and motels). The term "solid waste incineration unit" does not include: (1) incinerators or otherunits required to have apermit under Section 3005 ofthe federal SolidWaste Disposal Act;

. (2) materials recovery facilities (including primary or secondary smelters) which combust waste for the primary purpose ofrecovering metals; (3) qualifying small powerproduction facilities, as defmed in Section 3(17)(C) ofthe Federal Power Act (16 U.S.c. 796(17)(C)), or qualifying cogeneration facilities, as defined in Section 3(18)(B) ofthe Federal Power Act (16 U.S.C. 796(18)(B)), whichburn homogeneous waste (such as units which burn tires orused oil, but not including refuse-derived fuel) for the production ofelectric energy or in the case ofqualifying cogeneration facilities whichburn homogeneous waste for the production ofelectric energy and steam or forms ofuseful energy

20.2.70 NMAC 4(such as heat) which are used for industrial, commercial, heating or cooling purposes; or (4) air curtain incinerators, provided that such incinerators only bum wood wastes, yard wastes and clean lumber and that such air curtain incinerators comply with opacity limitations establishedby the administrator by rule. AH. "Startup" means the setting into operation ofany air pollution control equipment, process equipment orprocess for any purpose. AI. "Stationary source" or "source" means any building, structure, facility, or installation, or any combination thereofthat emits ormay emit any regulated airpollutant or any pollutant listedunder Section l12(b) ofthe federal act. AJ. "Subsidiary" means abusiness concern which is owned or controlledby, oris apartnerof, the applicant orpermittee. AK. "Temporary source" means any plantthat is situated in one location for aperiod ofless than one year, after which it will be dismantled and removed from its current site or relocated to a new site. A temporary source may be semi-permanent, which means that is does not have to meet the requirements ofaportable source. Temporary sources may include well head compressors which meet this criteria. AL. "Title I modification" means any modification under Sections III or 112 ofthe federal act and any physical change or change inmethod ofoperations that is subject to the preconstruction regulations promulgated underParts C and D ofthe federal act. (11/30/95; 20.2.70.7 NMAC

- Rn, 20 NMAC 2.70.1.107, 06/14/02; A, 11/07/02; A, 9/6/06]
20.2.70.201 REQUIREMENT FORA PERMIT: A. A Part70 source may operate after the time that it is required to submit a timely and complete application under this part only if: (1) the source is in compliance with an operating permit issued by the department orEPA; or (2) a timely permit (including permit renewal) applicationhas been submitted consistent with 20.2.70.300 NMAC; the ability to operate underthese circumstances shall cease ifthe applicant fails to submitby the deadline specified in writingby the department any additional information identified as being needed to process the application. B. Revocation or termination ofapermitby the department terminates the permittee's right to operate. C. The submittal ofa complete operating permit application shall not protect any source from any applicable requirement, including any requirement that the source have apreconstructionpermit under Title I ofthe federal act or state regulations. D, Requirement forpermitunder 20.2.72 NMAC. (1) Part70 sources that have an operating permit and do not have apermit issued under 20.2.72 NMAC or 20.2.74 NMAC shall submit a complete application for apermit under20.2.72 NMAC within 180 days of September 6, 2006. The department shall considerand may grant reasonable requests for extension ofthis deadline on a case-by-case basis. (2) Part70 sources that do not have an operating permit or a permit under 20.2.72 NMAC upon the effective date ofthis subsection shall submit an application for a permitunder 20.2.72 NMAC within 60 days after submittal ofan application for an operatingpermit. (3) Paragraphs 1 and 2 ofthis subsection shall not apply to sources that have demonstrated compliance withboth the national and state ambient airquality standards through dispersion modeling orother method approved by the department and that have requested incol]Joration ofconditions in their operating permit to ensure compliance with these standards. (11/30/95; 20.2.70.201 NMAC

- Rn, 20 NMAC 2.70.11.201, 06/14/02; A, 9/6/06]
20.2.70.300 PERMIT APPLICAnONS: A. Duty to**applyH~** For each Part70 source, the owner or operator shall submit a timely and complete permit application in accordance with this part. B. Timely application. A timely application for a source applying for apermitunder this part is: (1) for first time applications, one that is submitted within twelve (12) months afterthe source commences operation as a Part 70 source, or as established in the transition schedule outlined in Paragraph (4) of Subsection B of20.2.70.300 NMAC; (2) forpurposes ofpermitrenewal, one that is submitted at least twelve (12) months priorto the date ofpermit expiration(**~]~**

20.2.70 NMAC 5(3) for the acid rainportion ofpermit applications for initial phase II acid rain sources under Title IV ofthe federal act, byJanuary 1, 1996 for sulfur dioxide, and by January 1, 1998 fornitrogen**oxides[~];** [(4) Transition seheoole. A timely applieation for a Part 70 sow=ee whieh is in operation on orbefore Deeemaer 19, 1995 is one that is slibmitted: (9) for sow=ees,**e~(eept** namral gas proeessing plants, vkieh have been issl:led a pefffl:it, inell:lding a pefffl:it modifieation, PlH'Sl:lant to 20.2.72 }J},iAC, 20.2.74 }J},iAC, or 20.?79 }J},V.C on or after JaH:l:lary 1, 1987, byfebruary 2, 1995, exeept thatpersons o'Nmng more than one SOl:lf€ein this eategory may slibmit applieations for halfoftheir SOl:lrees by february 2, 1995 and slibmit the remai:aing applieations by Mareh 19, 1995; (0) for SOl:lf€es,exeept H:at1H'a1 gas proeessing plants, ."kieh ',vere issl:led a pefffl:it, inell:lding a pefffl:it modifieation, pl:lfSl:laBt to 20.2.72 }J},{AC, 20.2.74 }J},iAC, or 20.2.79 }J},iAC priorto Jaooary I, 1987, by fune 19, 1995; (e) for aY other SOl:lrees, by Deeemaer 19, 1995.] C. Completeness of[A].!!pplication[ L (1) To be deemed complete, an application mustprovide all informationrequired pursuantto SubsectionD of20.2.70.300 NMAC, except that applications for permit modifications need supply such information only ifit is related to the proposed change. (2) If, while processing an application, regardless ofwhether it has been determined or deemed to be complete, the department determines that additional information is necessary to evaluate ortake fmal action on that application, it may request suchinformation in writing and set areasonable deadline for aresponse. (3) Any applicant who fails to submit any relevant facts or who has submitted incorrectinformation in apermit application orin a supplemental submittal shall, upon becoming aware ofsuch failure orincorrect submittal, promptly submit such supplementary facts or corrected information. In addition, an applicant shall provide further information as necessary to address anyrequirements thatbecome applicable to the source after the date it filed a complete applicationbutprior to release ofadraftpermit. (4) The applicant's ability to operate without apermit, as set forth inParagraph (2) ofSubsection A of 20.2.70.201 NMAC, shall be in effect from the date a timely application is submitted until the fmal permit is issued or disapproved, provided that the applicant adequately submits any requested additional information bythe deadline specified by the department. D. Content of**application[~L** Anyperson seeking a permitunderthis part shall do so by filing a written application with the department. The applicant shall submitthree (3) copies ofthe permit application, or more, as requested bythe department. An applicant may not omit information needed to determine the applicability of, orto impose, any applicable requirement, orto evaluate the fee amountrequired under20.2.71 NMAC (operating permit emission fees). Fugitive emissions shall be included in the permit application in the same manner as stackemissions, regardless ofwhether the source category in question is included in the list ofsources contained in the definition ofmajor source. All applications shall[**~]** meet the following requirements. (1) Bemade on forms furnished by the department, which for the acid rainportions ofpermit applications and compliance plans shall be on nationally-standardized forms to the extentrequired byregulations promulgated under Title IV ofthe federal act[;L (2) State the company's name and address (and, ifdifferent, plant name and address), together with the names and addresses ofthe owner(s), responsible official and the operator ofthe source, any subsidiaries or parent companies, the company's state ofincorporation orprincipal registration to do business and corporate or partnership relationship to otherpermittees subjectto this part, and the telephone numbers and names ofthe owners' agent(s) and the site contact(s) familiar with plant operations[;L (3) State the date ofthe application[;L (4) Include a description ofthe source's processes andproducts (by standard industrial classification code) including any associated with alternative scenarios identifiedby the applicant, and a map, such as the 7.5 minute topographic quadrangle map published by the United States geological surveyorthe most detailed map available showing the exact location ofthe source. The location shall be identified by latitude and longitude orby UTM coordinates[;L (5) For all emissions ofall airpollutants for which the source is major and all emissions ofregulated airpollutants, provide all emissions information, calculations and computations for the source and for each emissions unit, except for insignificant activities (as defined in 20.2.70.7 NMAC). This shall include: (a) aprocess flow sheet ofall components ofthe facility which would be involved in routine operations and emissions; (b) identification and description ofall emissions points in sufficient detail to establish the basis for fees and applicability ofrequirements ofthe state and federal acts;

20.2.70 NMAC 6(c) emissions rates in tons peryear, pounds perhour and in such tenns as are necessary to establish compliance consistent with the applicable standard reference test method; (d) specific infonnation such as thatregarding fuels, fuel use, raw materials, orproduction rates, to the extentit is needed to determine orregulate emissions; (e) identification and full description, including all calculations and the basis for all control efficiencies presented, ofairpollution control equipment and compliance monitoring devices or activities; (f) the maximum and standard operating schedules ofthe source, as well as any workpractice standards or limitations on source operation which affect emissions ofregulated pollutants; (g) [Afl]ifreguested by the department. an operational plan defining the measures to be taken to mitigate source emissions during startups, shutdowns and emergencies; (h) otherrelevant infonnation as the departmentmay reasonably require or which are required by any applicable requirements (including infonnation related to stackheight limitations developed pursuantto Section 123 ofthe federal act); and (i) for each alternative operating scenario identified by the applicant, all ofthe infonnation required in Subparagraphs (a) through (h) above, as well as additional infonnation determined to be necessaryby the department to define such alternative operating**scenarios[t]~** (6) Provide a list ofinsignificant activities (as defmed in 20.2.70.7 NMAC) at the source, their emissions, to the extentrequired by the department, and any infonnation necessary to determine applicable**requirements[t]~** (7) Provide a citation and description ofall applicable airpollution control requirements, including: (a) sufficientinfonnation related to the emissions ofregulated airpollutants to verify the requirements that are applicable to the source; and (b) a description oforreference to any applicable test method for determining compliance with each applicable requirement[tt (8) Provide an explanation ofany proposed exemptions from otherwise applicable**requirements[t]~** (9) Provide other specific infonnation thatmay be necessary to implement and enforce other requirements ofthe state or federal acts or to determine the applicability ofsuch requirements, including infonnation necessary to collect any permit fees owed under 20.2.71 NMAC (operating permit emission fees)[tt [(10) For applieatioBS which are reqHifedunder the tFaflsition scheffiI1e inparagraph (4) ofsl:lbsection B of20.2.70.300**~rMAC,** include a dispersion modeling analysis, using US EPA approved models and procedures, ShOYling YAiether emissions from the source would cause aifpollutant concentrations in eKcess ofa-R-y national ambient aifqHality standard. Airpollutants whicb are not emitted in significant (as defined in 40 CFR 52.21 (e)(23)(i» amounts during routine operations need not ee modeled. (8) This requirement shall not apply to the following: 0) A Part70 source issued a permitunder 20.2.72 NMAC, 20.2.74 NMAC, 20.2.79 NMAC after January 1,1988; or (D) A Part 70 source suBjectto 20.2.14**~rM!'£,** 20.2.18**~~MAC,** 20.2.19**~~MAC,** 20.2.31 NMAC, 20.2.32 NMAC ifno physical or operational modifications that have resulted in increasedparticulate matter, sulfur dioKide, ornitrogen oKide emissions have occWTed since the time modeling was performed for that facility as part ofrevisions to those regulations. (b) The Department may 'Naive modeling ynthrespect to ozone ifthe Department determines that emissions from the source are not likely to cause ozone concentrations in excess oftbe national ameient aif qHality standard.] [(l-B]il.Q} Provide certification ofcompliance,**including[~]** all ofthe following. (a) A certification, by aresponsible official consistent with Subsection E of20.2.70.300 NMAC, ofthe source's compliance status for each applicable requirement. For national ambient air guality standards. certifications shall be based on the following. (i) For first time applications. this certification shall be based on modeling submitted with the application for a pennitunder 20.2.72 NMAC. (iil Forpennit renewal applications, this certification shallbe based on compliance with the relevant tenns and conditions ofthe current operating permit. (b) A statement ofmethods used for determining compliance, including a description of monitoring, recordkeeping, and reporting requirements and test methods[tt (c) A statementthat the source will continue to be in compliance with applicable requirements for which it is in compliance, and will, in a timely manner or at such schedule expresslyrequired by the applicable requirement, meetadditional applicable requirements thatbecome effective during the pennit tenn[tt

20.2.70 NMAC 720.2.70.302 A. (d) A schedule for submission ofcompliance certifications during the permit term, to be submitted no less frequently than annually, ormore frequently ifspecified by the underlying applicable requirement
orby the department**[t-aREl]~** (e) A statement indicating the source's compliance status with any enhanced monitoring and compliance certification requirements ofthe federal act. [fYtl!!.ll For sources that are not in compliance with all applicable requirements at the time of permit application, provide a compliance plan that contains;. all ofthe following. (3) A description ofthe compliance status ofthe source withrespect to all applicable**requirements[~L** (b) A narrative description ofhow the source will achieve compliance with such requirements for which it is not in**compliance[~L** (c) A schedule ofremedial measures, including an enforceable sequence ofactions with milestones, leading to compliance with such applicable requirements. The schedule ofcompliance shall be at least as stringent as that contained in any consent decree or administrative order to which the source is subject, and the obligations ofany consent decree or administrative order shall notbe in any way diminished by the schedule of compliance. Any such schedule ofcompliance shall be supplemental to, and shall notprohibit the department from taking any enforcementaction for noncompliance with, the applicable requirements on which it is**based[~]~** (d) A schedule for submission ofcertified progress reports no less frequently than every six (6) months[t-aRElL (e) For the portion ofeach acid rain source subject to the acid rain provisions ofTitle IV ofthe federal act, the compliance plan contentrequirements specified in this paragraph, except as specifically superseded by regulations promulgated under Title IV ofthe federal act with regard to the schedule and methodes) the source will use to achieve compliance with the acid rain emissions limitations. E. Certification[;.L Any document, including any application form, report, or compliance certification, submitted pursuant to this part shall contain certificationby a responsible official oftruth, accuracy, and completeness. This certification and any other certification required under this part shall state that, based on information and beliefformed afterreasonable inquiry, the statements and information in the document are true, accurate, and complete. [11/30/95; A, 11/14/98; 20.2.70.300 NMAC

- Rn, 20 NMAC 2.70.III.300, 06/14/02; A, 9/6/06]
PERMIT CONTENT: Permit conditions[;.L (1) The department shall specify conditions upon apermit, including emission limitations and sufficient operational requirements and limitations, to assure compliance with all applicable requirements at the time ofpermit issuance or as specified in the approved schedule ofcompliance. The permit shall: (3) for major sources, include all applicable requirements for all relevant emissions units in the major source; (b) for any non-major source subject to 20.2.70.200 NMAC

- 20.2.70.299 NMAC, include all applicable requirements which apply to emissions units that cause the source to be subject to this part; (c) specify and reference the origin ofand authority for each term or condition, and identify any difference in form as compared to the applicable requirementupon which the term or condition is based; (d) include a severability clause to ensure the continued validity ofthe various permit requirements in the event ofa challenge to any portions ofthe permit; (e) include aprovision to ensure that the permittee pays fees to the [D]gepartment consistent with the fee schedule in 20.2.71 NMAC (Operating Permit Emission Fees); and (f) for purposes ofthe permit shield, identify any requirement specifically identified in the permit application or significantpermit modification that the department has determined is not applicable to the source, and state the basis for any such determination. (2) Eachpermit issued shall, additionally, include provisions stating [tlHw.] the following. (3) The permittee shall comply with all terms and conditions ofthe permit. Any permit noncompliance is grounds for enforcement action. In addition, noncompliance with federally enforceablepermit conditions constitutes a violation ofthe federal**act[~L** (b) It shall notbe a defense for a permittee in an enforcement action that it would have been necessaryto halt or reduce the permitted activity in order to maintain compliance with the conditions ofthe**permit[~]~** (c) The permit maybe modified, reopened and revised, revoked and reissued, orterminated for

20.2.70 NMAC 8cause in accordance with 20.2.70.405 NMAC[tL (d) The filing ofarequestby the permittee for apermit modification, revocation and reissuance, ortermination, or ofa notification ofplanned changes or anticipated noncompliance shall not stay any permit condition[tL (e) The permit does not convey any propertyrights ofany sort, or any exclusive privilege[tL (f) Within the period specifiedby the department, the permittee shall furnish any information that the department may request in writing to determine whether cause exists for reopening andrevising, revoking and reissuing, ortermination ofthe permit orto determine compliance with the permit. Upon request, the permittee shall also furnish to the department copies ofrecords requiredby the permit to be maintained. (3) The terms and conditions for all alternative operating scenarios identified in the application and approvedby the department: (a) shall require that the permittee maintain a log at the permitted facility which documents, contemporaneously with any change from one operating scenario to another, the scenario underwhich the facility is operating; and (b) shall, for each such alternative scenario, meet all applicable requirements and the requirements ofthis part. (4) The department may impose conditions regulating emissions during startup and shutdown. (5) All permit terms and conditions which are required underthe federal act orunder any ofits applicable requirements, including any provisions designed to limit a source's potential to emit, are enforceable by the administrator and citizens underthe federal act. The permit shall specifically designate as not being federally enforceable underthe federal act any terms or conditions included in the permitthat are not requiredunder the federal act orunderany ofits applicable requirements. (6) The issuance ofapermit, orthe filing or approval ofa compliance plan, does not relieve any person from civil orcriminal liability for failure to comply with the provisions ofthe Air Quality Control Act, the federal act, federal regulations thereunder, any applicable regulations ofthe Board, and any otherapplicable law or regulation. (7) The department may include part or all ofthe contents ofthe application as terms and conditions ofthe permit orpermit modification. The department shall not applypermit terms and conditions upon emissions of regulatedpollutants for which there are no applicable requirements, unless the source is majorfor that pollutant. (8) Fugitive emissions from a source shallbe included in the operatingpermit in the same manner as stackemissions, regardless ofwhether the source category in question is included in the list ofsources contained in the definition ofmajor source. (9) The acid rainportion ofoperatingpermits for acid rain sources shall additionally: (a) state that, where an applicable requirement ofthe federal act is more stringentthan an applicable requirement ofregulations promulgatedunder Title IV ofthe federal act, both provisions shall be incorporated into the permit and shall be enforceable by the**administrator[~];** and (b) contain apermit condition prohibiting emissions exceeding any allowances that the acid rain source lawfullyholds underTitle IV ofthe federal act orthe regulations promulgated thereunder; no permit modificationunderthis part shall be required for increases in emissions that are authorized by allowances acquired pursuant to the acidrainprogram, provided that such increases do not require apermit modification under any other applicable requirement; no limit shall be placed on the number ofallowances held by the acid rain source; the permittee may notuse allowances as a defense to noncompliance with any otherapplicable requirement; any such allowance shall be accounted for according to the procedures established inregulations promulgatedunder Title IV ofthe federal act. B. Permit duration[;-L The department shall issue operating permits for afixed term offive (5) years. C. Monitoring[;-L (1) Eachpermit shall contain all emissions monitoring requirements, and analysis procedures ortest methods, required to assure and verify compliance with the terms and conditions ofthe permit and applicable requirements, including any procedures andmethods promulgatedby the administrator. (2) Where the applicable requirement does not require periodic testing orinstrumental or noninstrumental monitoring (whichmay consist ofrecordkeeping designed to serve as monitoring), the permit shall require periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the permit, as reportedpursuant to Subsection E of20.2.70.302 NMAC. Such monitoring requirements shall assure use ofterms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirement. (3) The permit shall also contain specific requirements concerning the use, maintenance, and, when

20.2.70 NMAC 9appropriate, installation ofmonitoring equipment or methods. D. Recordkeeping[ot (1) The permit shall require recordkeeping sufficient to assure and verify compliance with the terms and conditions ofthe permit, including recordkeeping of: (a) the date, place as defmed in the permit, and time ofsampling or measurements; (b) the date(s) analyses were performed; (c) the company or entity thatperformed the analyses; (d) the analytical techniques or methods used; (e) the results ofsuch analyses; and (t) the operating conditions existing at the time ofsampling or measurement. (2) Records ofall monitoring data and support information shall be retained for aperiod ofat least five (5) years from the date ofthe monitoring sample, measurement, report, or application. Supporting information includes all calibration and maintenance records and all original strip-chart recordings for continuous monitoring instrumentation, and copies ofall reports requiredby the permit. E. Reporting[ot The permit shall require reporting sufficientto assure and verify compliance with the terms and conditions ofthe permit and all applicable requirements, including[o] all ofthe following. (1) Submittal ofreports ofany required monitoring at least every six (6) months. The reports shallbe due to the department within forty-five (45) days ofthe end ofthe permittee's reporting period. All instances of deviations from permitrequirements, including emergencies, mustbe clearly identified in suchreports. All required reports mustbe certified by a responsible official consistent with Subsection E of20.2.70.300**NMAC[~]~** (2) Promptreporting ofall deviations (including emergencies) frompermitrequirements, including the date, time, duration and probable cause ofsuch deviations, the quantity and pollutant type ofexcess emissions resulting from the deviation, and any corrective actions orpreventive measures taken. Such reports shall include telephone, verbal or facsimile communication within twenty-four (24) hours ofthe start ofthe nextbusiness day and written notification within ten (10)**days[~]~** (3) Submittal ofcompliance certificationreports at least every twelve (12) months (or more frequently ifso specifiedby an applicable requirement) certifying the source's compliance status with [all permit] terms and conditions contained in the permit [and all aflplieable reqairements relevant to the sOl:lfee], including [those related to] emission limitations, standards, or workpractices. The reports shall be due to the department within thirty (30) days ofthe end ofthe permittee's reporting period. Such compliance certifications shall be submitted to the administrator as well as to the department and shall include: (a) the identification ofeach term or condition ofthe permit that is the basis ofthe certification; (b) the compliance status ofthe source; (c) whether compliance was continuous or intermittent; (d) the method(s) used for determining the compliance status ofthe source, currently and during the reporting period identified in the permit; and (e) such other facts as the departmentmay require to determine the compliance status ofthe**source[~t**(4) Such additional provisions as maybe specifiedby the administrator to determine the compliance status ofthe source. F. Portable and Temporary Sources[ot The department may issue permits for portable and temporary sources which allow such sources to relocate without undergoing a permit modification. Suchpermits shall not apply to acid rain sources and shall include conditions to assure that: (1) [:f]!he source is installed at all locations in a manner conforming with the permit; (2) [:f]!he source shall comply with all applicable requirements and all otherprovisions ofthis part at all authorized locations; (3) the owner or operator shall notify the department in writing at leastfifteen (15) calendar days in advance ofeach change in location; (4) notification shall include a legal description ofwhere the source is to be relocated and how long it will be located there; and (5) emissions from the source shall not, at any location, result in or contribute to an exceedance ofa national ambient air quality standard orincrement or visibility requirement under Part C ofTitle I ofthe federal act; the department may require dispersion modeling to assure compliance at any location. G. Compliance[o]. To assure and verify compliance with the terms and conditions ofthe permit and with this part, permits shall also[o] include all the following. (1) Require that, upon presentation ofcredentials and other documents as may be required by law, the

20.2.70 NMAC 10permittee shall allow authorized representatives ofthe department to perform the following: (a) enterupon the permittee's premises where a source is located or emission related activity is conducted, or where records must be keptunder the conditions ofthe permit; (b) have access to and copy any records that must be keptunder the conditions ofthe permit; (c) inspect any facilities, equipment (including monitoring and airpollution control equipment), practices, or operations regulated orrequired under the permit; and (d) sample or monitor any substances orparameters for the purpose ofassuring compliance with the permit or applicable requirements or as otherwise authorized by the federal act. (2) Require that sources required under Paragraph (12) ofSubsectionD of20.2.70.300 NMAC to have a schedule ofcompliance submitprogress reports to the department atleast semiannually, or more frequently if specified in the applicable requirement orby the department. Such progress reports shall be consistent with the schedule ofcompliance and requirements ofParagraph (12) ofSubsection D of20.2.70.300 NMAC and shall contain: (a) dates for achieving the activities, milestones, or compliance required in the schedule of compliance, and dates when such activities, milestones or compliance were achieved; and (b) an explanation ofwhy any dates in the schedule ofcompliance were not orwill not be met, and any preventive or corrective measures adopted. (3) Include such otherprovisions as the department may require. H. Operational flexibility[.;L (1) Section 502(b)(10) changes. (a) The permittee may make Section 502(b)(10) changes, as defined in 20.2.70.7 NMAC, without applying for a permitmodification, ifthose changes are not title I modifications and the changes do not cause the facility to exceed the emissions allowable underthe permit (whether expressed as a rate ofemissions or in terms oftotal emissions). (b) Foreach such change, the permittee shall provide written notification to the [9]gepartment and the administrator at least seven (7) days in advance ofthe proposed changes. Such notification shall include a briefdescription ofthe change within the permitted facility, the date on which the change will occur, any change in emissions, and any permit term or condition that is no longer applicable as a result ofthe change. (c) The permittee and department shall attach each such notice to their copy ofthe relevant permit. (d) Ifthe written notification and the change qualify underthis provision, the permittee is not required to comply with the permitterms and conditions it has identified that restrict the change. Ifthe change does not qualifyunderthis provision, the original terms ofthe permit remain fully enforceable. (2) Emissions trading within a facility[.;L (a) The department shall, ifan applicant requests it, issue permits that contain terms and conditions allowing for the trading ofemissions increases and decreases in the permitted facility solely for the purpose ofcomplying with a federally enforceable emissions cap that is established in the permit in addition to any applicable requirements. Such terms and conditions shall include all terms and conditions required under 20.2.70.302 NMAC to determine compliance. Ifapplicable requirements apply to the requested emissions trading, permit conditions shall be issued only to the extent that the applicable requirements provide for trading such increases and decreases without a case-by-case approval. (b) The applicant shall include in the applicationproposed replicable procedures and permit terms that ensure the emissions trades are quantifiable and enforceable. The department shall not include in the emissions trading provisions any emissions units for which emissions are not quantifiable or for which there are no replicable procedures to enforce the emissions trades. The permit shall require compliance with all applicable requirements. (c) For each such change, the permittee shall provide written notification to the department and the administrator at least seven (7) days in advance ofthe proposed changes. Such notification shall state when the change will occur and shall describe the changes in emissions thatwill result and how these increases and decreases in emissions will comply with the terms and conditions ofthe permit. (d) Thepermittee and department shall attach each such notice to their copy ofthe relevant permit. I. Off-Permit Changes[.;]; (1) Permittees are allowed to make, without apermit modification, changes that are not addressed or prohibited by the operating permit, if: (a) each such change meets all applicable requirements and shall not violate any existing

20.2.70 NMAC 11permit term or condition; (b) such changes are not subject to any requirements underTitle IV ofthe federal act and are not Title I modifications; (c) such changes are not subject to permit modification procedures under 20.2.70.404 NMAC; and (d) the permittee provides contemporaneous written notice to the [l}]gepartment and US EPA ofeach such change, except for changes that qualify as insignificant activities. Such written notice shall describe each such change, including the date, any change in emissions, pollutants emitted and any applicable requirement that would apply as a result ofthe change. (2) The permittee shall keep a record describing changes made atthe source that result in emissions ofa regulated air pollutant subjectto an applicable requirement, but not otherwise regulated under the permit, and the emissions resulting from those changes. J. Permit**Shield[~l** (1) Except as provided in this part, the department shall expressly include in a Part 70 (20.2.70 NMAC) permit a provision stating that compliance with the conditions ofthe permit shall be deemed compliance with any applicable requirements as ofthe date ofpermit issuance, provided that: (a) such applicable requirements are included and are specifically identified in the permit; or (b) the department, in acting on the permit application or significantpermit modification, determines in writing that other requirements specifically identified are not applicable to the source, and the permit includes the determination or a concise summary thereof (2) A Part 70 (20.2.70 NMAC) permit that does not expressly state that a permit shield exists for a specific provision shall be presumed not to provide such a shield for thatprovision. (3) Nothing in this section or in any Part 70 (20.2.70 NMAC) pennit shall alter or affect the following: (a) the provisions ofSection 303 ofthe federal act

-- Emergency Powers, including the authority ofthe administratorunderthat section, or the provisions ofthe New Mexico Air Quality Control Act, Section 74-2-10 NMSA 1978; (b) the liability ofan owner or operator ofa source for any violation ofapplicable requirements prior to or at the time ofpennit issuance; (c) the applicable requirements ofthe acid rainprogram, consistent with Section 408(a) ofthe federal act; or (d) the ability ofUS EPA to obtain information from a source pursuant to Section 114 ofthe federal act, or the department to obtain information subject to the New Mexico AirQuality Control Act, Section 74- 2-13 NMSA 1978. (4) The permit shield shall remain in effectifthe permitterms and conditions are extendedpast the expiration date ofthe permitpursuant to Subsection D of20.2.70.400 NMAC. (5) The permit shield shall extend to terms and conditions that allow emission increases and decreases as part ofemissions trading within a facility pursuant to Paragraph (2) ofSubsection H of20.2.70.302 NMAC, and to all terms and conditions under each operating scenario includedpursuant to Paragraph (3) of Subsection A of20.2.70.302 NMAC. (6) The permit shield shall not extend to administrative amendments under Subsection A of 20.2.70.404 NMAC, to minorpermitmodifications under Subsection B of20.2.70.404 NMAC, to Section 502(b)(10) changes under Paragraph (l) ofSubsection H of20.2.70.302 NMAC, or to permit terms or conditions for which notice has been given to reopen or revoke all or partunder 20.2.70.405 NMAC. [11/30/95; A, 11/14/98; 20.2.70.302 NMAC

- Rn, 20 NMAC 2.70.1II.302, 06/14/02; A, 9/6/06]
20.2.70.304 EMERGENCY PROVISION[tJ.,_ This period is inconsistent with the manner in which all ofthe section names are identified

- Vickie

- Pleaseexplain. A. An "emergency" means any situation arising from sudden and reasonably unforeseeable events beyond the control ofthe permittee, including acts ofGod, which situationrequires immediate corrective action to restore normal operation, and that causes the source to exceed a technology-based emission limitationunder the permit due to unavoidable increases in emissions attributable to the emergency. An emergency shall not include noncompliance to the extentcaused by improperly designed equipment, lack ofpreventive maintenance, or careless or improper operation. B. An emergency constitutes an affIrmative defense to an action brought for noncompliance with suchtechnology-based emission limitations ifthe permittee has demonstrated through properly signed,

20.2.70 NMAC 12contemporaneous operating logs, or otherrelevant evidence that: (1) An emergency occurred and that the pennittee can identify the cause(s) ofthe emergency; (2) The permitted facility was at the time being properly operated; (3) During the period ofthe emergency the pennittee took all reasonable steps to minimize levels of emissions that exceeded the emission standards or other requirements in the permit; and (4) The permittee fulfilled notification requirements underParagraph (2) ofSubsection E of 20.2.70.302 NMAC. This notice must contain a description ofthe emergency, any steps taken to mitigate emissions, and corrective actions taken. C. In any enforcement proceeding, the permittee seeking to establish the occurrence ofan emergency has the burden ofproof. D. This provision is in addition to any emergency orupsetprovision contained in any applicable requirement[, except that Part 70 sources shall notbe subjeet to the provisions 0[20.2.7 N1>.4AC (Excess Emissions during Malfunction, Startap, Shutdown, or Scheduled Maintenance) forpermitterms and conditions issued under 20.2.70 'NMAC]. [11/30/95; 20.2.70.304 NMAC

- Rn, 20 NMAC 2.70.III.304, 06/14/02; A, 9/6/06]

20.2.70 NMAC 13f:

-**!~** -,;**,~** " ..J _, 

### NMAC TRANSMITIAL FORM
1.24.10 NMAC [Sequence #

66700
t4aJE',) " .- '. '" cfrf 

# ...**"'~-'** i ,.\'**·}q~l,"''''''''** ';1.**~-.-~** , ,';'**'?'~":~~'**

.'

. -..91"; .. " P.O. Box 26110, 1190 St. Francis Drive, Santa Fe, New Mexico 87502**1~!,Q;nGfr--<;-"':'"** ,.",;"1f; .••**:;~'1-** 

## - -. 

## - ,..

..**{·.,;~t-t7,'~'rp"·j(::)'$~~;** , .,**'I~** Name Tannis Fox 

# . I(50S)

- FAX (50S) 827-1628**Ph~ne** # 827-1603**E~mail** .. Tannis.fox@state.nm.us

New 

# D Amendment 

# W' Renumber 

# D Repeal 

# D , 

# .

..,i + 1 ,
Emergency 

# D

9/6/06

1.
2 Ple-ase Hstattachments andInternet site(s) iF applicable • enm on Nonattaiflment Area**~equirements** 

### Amended one**6e~on**

No X Yes

3. 

# vesD Public domain

# 0

Name: Gay Dillingham Check if delegated authority 

# 0 Title:**g~/-Ob** Date Signed

SRC-2000-02 5/26/2000This is an amendment to 20.2.72 NMAC, Section 216 effective on 9/6/06. , "



### - " 

### ri ,": •• ..,**~".** ',.. ' '..... · i , '._i 

### 1; c,

20.2.72.216 

### A. NONATTAINMENT AREAREQUIREMENTS: The requirements ofthis section applyto: (1) anew source or modification ofan existing source that [whiefl] will emit a regulated air contaminant suchthat the ambient impact ofthe contaminant would exceed the significant ambient concentration in 20.2.72.500 NMAC, table I, at any location that does not meet the New Mexico ambient air quality standard for the contaminant; [ef] (2) a new source or modification ofan existing source that [wlHeh] is not a major stationary source or majormodification as defmed in 20.2.79 NMAC and [whieh] that will emit a regulated air contaminant such that the ambient impact ofthe contaminant would exceed the significant ambient concentration in table 1 at any location that does notmeet the national ambient airquality standard for the**contaminant[~]** (3) an existing source that does not propose an increase in emissions and that will emit aregulated air contaminant such that the ambient impact ofthe contaminant would exceed the significant ambient concentration in 20.2.72.500 NMAC (table 1) at any location that does not meet the national orNew Mexico ambient air Quality standard for the contaminant. B. A new source or modification ofan existing source subject to this section shall offset the ambient impact ofits emissions by: (1) obtaining emission offsets for proposed emissions in an amount greater than one-to-one such that anet air quality benefit will occur; and (2) ensuring emission offsets are quantifiable, enforceable, and permanent by meeting the following sections of20.2.79 NMAC; (a) 20.2.79.114 NMAC (emission offset baseline); (b) 20.2.79.115 NMAC (emission offsets); and (c) 20.2.79.117 NMAC (air quality benefit). C. An existing source that is subjectto this section shall demonstrate a net air qualitybenefit ofat least a 20 percent reduction in ambient impact for each applicable contaminant. The 20 percent reduction shall be calculated as the projected source impact subtracted from the existing source impact divided bythe existing source impact. The net air quality benefit must also meet the requirements of20.2.79.117 NMAC (air quality benefit). [1I!30/95; 20.2.72.216 NMAC· Rn, 20 NMAC 20.2.72.JI.2l6, 212/01; A, 9/6/06]

20.2.72 NMAC

### IN THE MATTER OF THE PETITION FOR PUBLIC HEARING TO CONSIDER PROPOSED AMENDMENTS TO 20.2.70 NMAC, AIR QUALITY RULES, OPERATING PERMITS //;, 

### 'to,,' f1C**~\i** 

### STATE OF NEW MEXICO**f[.~~S** 

### ENVIRONMENTAL IMPROVEMENT BOARD

# ~~~~~~;~;~\\\ett- $. •..Jdt.1'$**~~** c!**.~~- C"'~**  /:;

ij'

C': (,

ll[**C,'~** 

### NO. EIB.05.12 (R) Ot 68,-:9

.



### NOTICE OF DOCKETING
The above captioned case is hereby docketed pursuant to 201.1, §3, NMAC
Environmental Improvement Board

- Rulemaking Procedures. The Administrator
received the Petition on July 22, 2005.**,r-~-** ----..-



### Barb a Claire, Administrluor Environmental Improvement Board Post Office Box 26110 Santa Fe, New Mexico 87502 (505) 827-2425 P (505) 827-2836 F
CERTIFICATE OF SERVICE I hereby certifythat a copy ofthe forgoing NOTICE OF DOCKETING is: 1.) hand-delivered to Tracy Hughes, General Counsel, Office ofGeneral Counsel, New Mexico Environment Department, Runnels Building, N-4050, Santa Fe, NM; 2.) faxed and mailed first-class mail to Mary 

### Smith, Board Counsel, NM Attorney General's Office, 111 Lomas NW, Albuquerque, New Mexico 87501 this 23rd day ofAugust, 2005.

## ~~CAA-**~_,** Birbara Claire, Administrator Environmental ImprovementBoard Post Office Box 26110 Santa Fe, New Mexico 87502 (505) 827-2425 P (505) 827-2836 FBILL RICHARDSON Governor 

### State o/NewMexico 

## ENVIRONMENTDEPARTMENT Air Quality Bureau

2048 Galisteo St. Santa Fe, NM 87505 Phone (50S) 827-1494

Fax (50S) 827-1543 

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



### August 22, 2005

Ms. Gay Dillingham, Chairperson New Mexico Environmental ImprovementBoard Harold Runnels Building, Rm 

### N-2153 1190 St. Francis Drive SantaFe, New Mexico 87502
Re: Petition for Public Hearing to Consider Proposed Amendments to Title 20, Chapter 2, Part 70 ofthe New Mexico Administrative Code.
DearMs. Dillingham:
The Air 

### Quality Bureau ofthe New Mexico Environment Department (NMED) respectfully requests a hearing before the Environmental Improvement Board on proposed amendments to one ofthe Air Quality rules, 20.2.70 NMAC

- Operating Permits. The Bureau requests that the Board consider this Petition at its regularly scheduled meeting on September 6, 2005 and set these proposed rule changes for hearing at its regularly scheduled Board Meeting in December 2005. This will allow for 60 days notice to thepublic ofthe rule changes.
The Air 

### Quality Bureau proposes to amend the defInition of "applicable requirement" in the operating permit rule by removing the New Mexico Ambient Air 

### Quality Standards ("NMAAQS "), and to clarify the procedure for affected sources to submit dispersion modeling for and to certify compliance with the National Ambient Air Quality Standards ("NAAQS"). In 

### light ofrecent settlements that will result in a signifIcant decrease ofemissions from some ofthe largest, oldest, and least controlled industrial facilities in New Mexico, and the availability of other approaches for reducing emissions at the few remaining sources for which NMAAQS compliance may still be an issue, the Bureau believes that the NMAAQS should not be applicable requirements under the operating permit rule. The Bureau also believes that it is appropriate to clarify the certifIcation procedure to eliminate unnecessary and time-consuming disputes regarding NAAQS compliance.
The Bureau respectfully requests that the Board, at its September 6, 2005 meeting, set these proposed rule amendments for hearing at the regularly scheduled Board Meeting in DecemberMs. Gay Dillingham August 22, 2005 Page 2

2005. Enclosed is a copy ofthe proposed rule changes showing the rule provisions that the Air Quality Bureau intends to request that the Board adopt at the hearing. Some editing, formatting, and numbering changes may occurprior to the December 2005 EIB meeting and the Bureau will provide the Board 

### with an updated version ofthe rules atthattime.
Thankyou for your consideration ofthis request.

Enclosure

cc: JimNorton, Environmental ProtectionDivisionDirector Gregory Green, Member, EIB Dolores Herrera, Member, EIB KenMarsh, Member, EIB SorenPeters, Member, Em Clifford Stroud, Member, Em Harold Tso, Member, EIB Mary Smith, Counsel, EIBThe Departmentproposes that the Board adoptthe following revisions to 20.2.70 NMAC

- Operating Permits.
20.2.70.5 section. EFFECTIVE DATE: 

### 11130/95, except where a laterdate is cited atthe end ofa

20.2.70.7 DEFINITIONS: In addition to the terms defined in 20.2.2 NMAC (Definitions), as used in this Partthe following defInitions shall apply.[.;] A. "Acid rain source" has'the meaning given to "affected source" in the regulations promulgated undertitle IV ofthe Federal Act, and includes all sources subjectto title IV ofthe Federal Act. B. "Affected programs" means all**[S]~tates,** local airpollution control programs, and Indian [+]1ribes and [P]pueblos, that are within 50 miles ofthe source. 

### C. "Airpollutant" means an airpollution agent or combination ofsuch agents, including any physical, chemical, biological, radioactive (including source material, special nuclearmaterial, and byproductmaterial) substance ormatter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation ofany airpollutant, to the extent the Administrator has identifIed such precursor orprecursors for the particular purpose for which the term "airpollutant" is used. This excludes water vapor, nitrogen (N2), carbon dioxide (C02), oxygen (02), methane and ethane. D. "Airpollution control equipment" means any device, equipment, process or combinationthereof, the operation ofwhich would limit, capture, reduce, confme, orotherwise control regulated airpollutants orconvert for the purposes ofcontrol any regulated airpollutant to anotherform, another chemical or anotherphysical state. This includes, but is not limited to, sulfurrecovery units, acidplants, baghouses, precipitators, scrubbers, cyclones, water sprays, enclosures, catalytic converters, and steam orwater injection. E. "Applicable requirement" means all ofthe following, as they apply to a Part 70 source orto an emissions unit[5] at a Part 70 source (including requirements thathave been promulgated orapproved by the Board orUS EPA throughrulemaking atthe time ofpermit issuance buthave future-effective compliance dates)[.;],,- (1) Any standard or otherrequirement provided for in the New Mexico state implementationplan approved by US EPA, orpromulgated by US EPA through rulemaking, undertitle I ofthe Federal Actto implementthe relevant requirements ofthe Federal Act, including any revisions to thatplanpromulgated in 40**CF~** Part 52[;],,- (2) Any term or condition ofanypreconstructionpermit issued pursuantto regulations approved orpromulgated through rulemaking under title I, including parts CorD, of the Federal Act, unless that term or condition is determined by the Departmentto be no longer pertinent[;]".(3) Any standard orotherrequirementunder section 111 ofthe Federal Act, including section III(d)[;]". (4) Any standard or otherrequirement under section 112 ofthe Federal Act, including any requirement concerning accidentprevention under section 112(r)(7) ofthe Federal Act[;J". (5) Any standard or otherrequirement ofthe acid rain program undertitle IV of the Federal Act orthe regulations promulgatedthereunder[;],,-

20.2.70 NMAC ProposedRevisions Page 1 of18(6) Any requirements establishedpursuantto section 504(b) or section 114(a)(3) ofthe Federal Act[;t (7) Any standard or otherrequirement governing solid waste incinerationunder section 129 ofthe Federal Act[;].:. (8) Any standard or otherrequirement for consumer and commercial products under section 183(e) ofthe Federal Act[;t (9) Any standard orotherrequirement for tank vessels under section 183(f) ofthe Federal Act[;t (10) Any standard orotherrequirement ofthe regulations promulgatedto protect stratospheric ozone undertitle VI ofthe Federal Act, unless the Administrator 

### has determined that such requirements need not be contained in a title V permit[;t (11) Any national ambient airquality standard[;].:. (12) Any increment or visibility requirementunderpart C oftitle I ofthe Federal Act, butonly as it would apply to temporary sources permittedpursuantto section 504(e) ofthe Federal Act[;--and].:. (13) Any regulation, except 20.2.3 NMAC, adopted by the Board pursuant to the New Mexico Air Quality Control Act, section 74-2-5(B) NMSA 1978. 

### F. "CFR" means the Code ofFederal Regulations. G. 

### "Draftpermit" means a version ofa permitwhich the Department offers for public participation or affectedprogram review. H. 

### "Emission limitation" means a requirement establishedby US EPA, the Board, orthe [I}]gepartment, that limits the quantity, rate or concentration, or combination thereof, of emissions ofregulated airpollutants on a continuous basis, including any requirements relating to the operation or maintenance ofa source to assure continuous reduction. I. 

### "Emissions allowable underthe permit" means: (1) any state or federally enforceablepermit term or condition that establishes an emission limit (including a workpractice standard) requested by the applicant and approved by the [I)]gepartment or determined at issuance orrenewal to be requiredby an applicable requirement; or (2) any federally enforceable emissions cap thatthe permittee has assumed to avoid an applicable requirementto which the source would otherwise be subject. 

### J. "Emissions unit" means any part or activity ofa stationary source that emits or has the potential to emit any regulated airpollutant or any airpollutant listedpursuantto section 112(b) ofthe Federal Act. This term is not meantto alter or affectthe definition ofthe term "unit" for purposes oftitle IV ofthe Federal Act. K. 

### Federally enforceable" means all limitations and conditions which are enforceable by the Administrator, including those requirements developed pursuantto 40 CFR Parts 60 and 61, requirements within the New Mexico State ImplementationPlan, and any permit requirements established pursuantto 40 CFR 52.21 orunder regulations approvedpursuantto 40 CFRPart 51, Subpart I, including 40 CFR 51.165 and 40 CFR 51.166. 

### L. "Final permit" means the version ofan operating permitissued by the [I)]gepartmentthathas met all review requirements of20.2.70.400 NMAC

- 20.2.70.499 NMAC. M. 

### "Fugitive emissions" are those emissions which couldnotreasonably pass through a stack, chimney, vent, or other functionally-equivalent opening.

20.2.70 NMAC Proposed Revisions Page 2 of18

### N. "General permit" means an operating permitthatmeets the requirements of 20.2.70.303 NMAC. 

### O. "Hazardous airpollutant" means an air contaminantthathas been classified as a hazardous airpollutantpursuantto the Federal Act. 

### P. "Insignificant activities" means those activities whichhave been listed by the [Q]gepartment and approved by the Administrator as insignificantonthe basis ofsize, emissions orproductionrate. Q. 

### "Major source" means any stationary source (or any group ofstationary sources that are located on one or more contiguous oradjacentproperties, and are under common control ofthe same person(s)) in which all ofthe pollutant emitting activities at such source belong to the same Major Group (i.e., all have the same two-digit code), as described in the Standard Industrial ClassificationManual, 1987, and that is described inparagraphs (1), (2) or (3) below. (1) A major source under section 112 ofthe Federal Act, which is defmed as the following.**[~]** (a) Forpollutants otherthan radionuclides, any stationary source or group of stationary sources located within a contiguous area and under cornmon control that emits orhas the potential to emit, in the aggregate, 10 tons or more per year ofany hazardous airpollutant whichhas been listedpursuantto section 112 (b) ofthe Federal Act, 25 ormore tons per year of any combination ofsuchhazardous airpollutants (including any major source offugitive emissions ofany suchpollutant, as determined by rule by the Administrator), or such lesser quantity as the Administratormay establishby rule. Notwithstanding the preceding sentence, hazardous emissions from any oil or gas exploration orproduction well (with its associated equipment) and hazardous emissions from any pipeline compressor orpump station shall not be aggregated with hazardous emissions from other similarunits, whether or not such units are in a contiguous area or under common control, to determine whether such units or stations are major sources. (b) Forradionuclides, "major source" shall have the meaning specified by the Administratorby rule. (2) A major stationary source ofair pollutants that directly emits or has the potential to emit, 100 or more tons per year ofany airpollutant (including any major source of fugitive emissions ofany suchpollutant, as determined by rule by the Administrator). The fugitive emissions ofa stationary source shall not be considered in determining whether it is a major stationary source for the purposes ofthis paragraph, unless the source belongs to one of the following categories ofstationary sources,-[-;] (a) Coal cleaning plants (withthermal dryers)[;] (b) Kraftpulp mills[;] (c) Portland cementplants[;] (d) Primary zinc smelters[;] (e) Iron and steel mills[;] (f) Primary aluminum ore reduction plants[;] (g) Primary copper smelters[;] (h) Municipal incinerators capable ofcharging more than 250 tons ofrefuse per day[;] (i) Hydrofluoric, sulfuric, or nitric acidplants[;] (j) Petroleumrefineries[;] (k) Limeplants[;]

20.2.70 NMAC Proposed Revisions Page 3 of 18

### (I) Phosphate rock processing**plants[~]** 

### (m) Coke oven**batteries[~]** 

### (n) Sulfurrecovery**plants[~]** (0) 

### Carbon blackplants (furnace**process)[~]** (P) 

### Primary lead**smelters[~]** 

### (q) Fuel conversion**plant[~]** 

### (r) Sintering**plants[~]** 

### (s) Secondary metal production**plants[~]** (t) 

### Chemical process plants[t] (n) Fossil-fuel boilers (orcombinationthereof) totaling more than 250 million Britishthermal units perhourheat**input[~]** 

### (v) Petroleum storage and transferunits with atotal storage capacity exceeding 300,000**barrels[~]** (w) 

### Taconite oreprocessing**plants[~]** 

### (x) Glass fiberprocessing**plants[~]** (y) 

### Charcoal production**plants[~]** 

### (z) Fossil fuel-fired steam electric plants ofmore than 250 million British thermal units perhour heat**input[~]** 

### (aa) Any other stationary source category, which as ofAugust 7, 1980 is being regulated under section 111 or 112 ofthe Federal Act. (3) A major stationary source as defmed in partD oftitle I ofthe Federal Act, including: (a) [F]for ozone non-attainment areas, sources withthe potential to emit 100 tons ormore peryear ofvolatile organic compounds ornitrogen oxides in areas classified as "marginal" or "moderate," 50 tons ormoreperyear in areas classified as "serious," 25 tons or more peryear in areas classified as "severe," and 10 tons or more peryear in areas classified as "extreme"; exceptthatthe references in this paragraphto 100,50,25, and 10 tons peryear of nitrogen oxides shall not apply withrespectto any source for whichthe Administratorhas made a finding, under section 182(f)(1) or (2) ofthe Federal Act, thatrequirements under section 182(f) ofthe Federal Act do not apply; (b) [F]forozone transportregions establishedpursuantto section 184 ofthe Federal Act, sources with the potential to emit 50tons ormore peryear ofvolatile organic compounds; (e) [F]for carbon monoxide non-attainment areas (1) that are classified as "serious," and (2) in which stationary sources contribute significantly to carbon monoxide levels as determined underrules issued by the Administrator, sources withthe potential to emit 50 tons ormore peryear ofcarbon monoxide; and (d) [F]forparticulate matter (PMI0) non-attainment areas classified as "serious," sources withthe potential to emit 70 tons ormore peryearofPM10. 

### R. "Operating [P]I!.ermit" or 

### "permit" (unless the context suggests otherwise) means any permit or group ofpermits covering a sourcethat is issued, renewed, modified or revisedpursuantto this Part. S. 

### "Operator" means the person orpersons responsible forthe overall operation of a facility. T. 

### "Owner" means the person orpersons who own a facility orpart ofa facility.

20.2.70 NMAC ProposedRevisions Page 4 of 18

## u. "Part" means an air quality control regulation under Title 20, Chapter 2 ofthe New Mexico Administrative Code, unless otherwise noted; as adopted or amended by the Board. V. "Part 70 source" means any source subjectto the permitting requirements ofthis Part, as provided in 20.2.70.200 NMAC

- 20.2.70.299 NMAC. W. "Permit modification" means a revision to an operating pennitthat meets the requirements ofsignificantpennit modifications, minorpermit modifications, or administrative pennit amendments, as defmed in 20.2.70.404 NMAC. 

### X. "Permittee" means the owner, operator orresponsible official at apermitted Part 70 source, as identified in any pennit application or modification. 

### Y. "Portable**[S]~ource"** means any plantthat is mounted on any chassis or skids and which canbe moved by the application ofa lifting orpulling force. In addition, there shall be no cable, chain, turnbuckle, bolt or othermeans (except electrical connections) by which any piece ofequipmentis attached or clamped to any anchor, slab, or structure, including bedrock, that must be removed priorto the application ofa lifting orpulling force for the purpose of transporting the unit. Portable sources may include sand and gravel plants, rock crushers, asphalt plants and concrete batchplants which meet this criteria. Z. "Potential to emit" means the maximum capacity ofa stationary source to emit any airpollutantunder its physical and operational design. Any physical oroperational limitation on the capacity ofa sourceto emit an airpollutant, including airpollution control equipment and restrictions on hours ofoperation or on the type or amount ofmaterial combusted, stored, orprocessed, shall be treated as partofits design ifthe limitation is federally enforceable. The potential to emit for nitrogen dioxide shall be based on total oxides ofnitrogen. AA. "Proposed permit" means the version ofapennitthatthe [9].department proposes to issue and forwards to the Administratorfor review in compliance with 20.2.70.402 NMAC. AB. "Regulated air pollutant" means the following: (1) Nitrogen oxides, total suspendedparticulate matter, orany volatile organic compounds;(2) Any pollutantfor which a national ambient air quality standard has been promulgated; (3) Any pollutantthat is subjectto any standard promulgated under section 111 of the Federal Act; (4) Any Class I orII substance subjectto any standard promulgated underor establishedby title VI ofthe Federal Act; or (5) Any pollutant subjectto a standardpromulgated under section 112 or any other requirements established under section 112 ofthe Federal Act, including sections 112(g), 0), and (r), including the following; (a) any pollutant subjectto requirements under section 1120) ofthe Federal Act. Ifthe Administratorfails to promulgate a standard by the date established pursuantto section 112(e) ofthe Federal Act, any pollutantfor which a subject source would be a major shall be considered to be regulated on the date 18 months afterthe applicable date established pursuantto section 112(e) ofthe Federal Act; and (b) anypollutant for whichthe requirements ofsection 112(g)(2) ofthe Federal Act have been met, but only with respect to the individual source subjectto a section 112(g)(2) requirement. AC. "Renewal" means the process by which apennit is reissued atthe end ofits tenn.

20.2.70 NMAC Proposed Revisions Page 5 of 18

### AD. "Responsible official" means one ofthe following: (1) For a corporation: a president, secretary, treasurer, orvice-president ofthe corporation in charge ofa principal business function, or any otherperson who performs similar policy ordecision-making functions for the corporation, or a duly authorized representative of suchperson ifthe representative is responsible for the overall operation ofone ormore manufacturing, production, or operating facilities applying for or subjectto apermit and either a) the facilities employ more than 250 persons orhave gross annual sales orexpenditures exceeding $25 million (in second quarter 1980 dollars), orb) the delegation ofauthority to such representative is approved in advance by the [f)]gepartment. (2) For a partnership or sole proprietorship: ageneral partner orthe proprietor, respectively. (3) For a municipality, state, federal orotherpublic agency: either aprincipal executive officer orranking elected official. Forthe purposes ofthis Part, a principal executive officerofa federal agency includes the chiefexecutive officerhaving responsibility for the overall operations ofaprincipal geographic unit ofthe agency (e.g., a Regional Administratorof US EPA). (4) Foran acid rain source: the designated representative (as defmed in section 402(26) ofthe Federal Act) in so far as actions, standards, requirements, orprohibitions under title IV ofthe Federal Act orthe regulations promulgatedthereunder are concerned, and for any otherpurposes under40 CFR, Part70. 

### AE. "Section S02(b)(10) changes" are changes that contravene an express permit term. Such changes do not include changes that would violate applicable requirements or contravene permitterms and conditions that are monitoring (including test methods), recordkeeping, reporting, or compliance certificationrequirements. 

### AF. "Shutdown" means the cessation ofoperation ofany airpollution control equipment, process equipment orprocess for any purpose. 

### AG. "Solid waste incineration unit" means a distinct operating unit ofany facility which combusts any solid waste material from commercial orindustrial establishments orthe general public (including single and multiple residences, hotels, and motels). The term "solid waste incineration unit" does not include: (1) [I]incinerators orotherunits required to have apermitunder section 3005 of the federal Solid Waste Disposal Act; (2) [M]materials recovery facilities (including primary or secondary smelters) which combust waste for the primary purpose ofrecovering metals; (3) [Q]gualifying small powerproduction facilities, as defmed in section 3(17)(C) ofthe Federal PowerAct (16 U.S.C. 796(17)(C), orqualifying cogeneration facilities, as defmed in section 3(18)(B) ofthe Federal Power Act (16 U.S.C. 796(18)(B)), whichbum homogeneous waste (such as units which bum tires orused oil, but not including refuse-derived fuel) for the production ofelectric energy orin the case ofqualifying cogeneration facilities which bum homogeneous waste for the production ofelectric energy and steam orforms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes; or (4)**[A]~** curtain incinerators, provided that such incinerators only bumwood wastes, yard wastes and clean lumber and that such air curtain incinerators comply with opacity limitations established by the Administratorby rule.

20.2.70 NMAC Proposed Revisions Page 6 ofl8

### AH. "Startup" means the setting into operation ofany airpollution control equipment, process equipment orprocess for any purpose. AI. "Stationary source" or "source" means any building, structure, facility, or installation, orany combination thereofthat emits ormay emit any regulated airpollutant or any pollutant listed under section 112(b) ofthe Federal Act. AJ. "Subsidiary" means abusiness concern which is owned orcontrolledby, oris a partnerof, the applicant orpermittee. AK. "Temporary**[S]~ource"** 

### means any plantthatis situated in one location for a period ofless than one year, after which it will be dismantled andremoved from its current site orrelocated to a new site. A temporary source may be semi-permanent, whichmeans that is does not have to meetthe requirements ofaportable source. Temporary sources may include well head compressors which meetthis criteria. AL. "Title I [M]!!!odification" means any modificationunder sections 111 or 112 of the Federal Act and any physical change orchange in method ofoperations that is subject to the preconstructionregulations promulgatedunder Parts C and D ofthe Federal Act.

20.2.70.300 

### PERMIT APPLICATIONS: A. Duty to apply[-;J,. Foreach Part 70 source, the owner or operator shall submit a timely and complete permit application in accordance with this Part. B. Timely application. A timely application for a source applying for apermitunder this Part is: (1) 

### [F]forfirst time applications, one that is submitted withintwelve (12) months afterthe source commences operation as a Part 70 source, or as established inthe transition schedule outlined inparagraph (4) ofsubsection B of20.2.70.300 NMAC; (2) [F]forpurposes ofpermit renewal, one that is submitted at leasttwelve (12) months priorto the date ofpermit**expiration[~]~** 

### (3) [F]forthe acid rainportionofpermit applications for initial Phase II acid rain sources undertitle IV ofthe Federal Act, by January 1, 1996 for sulfur dioxide, and by January 1, 1998 fornitrogen**oxides[~]~** 

### (4) FFJ!ransition**schedule[~t [A]~**  

### timely applicationfor a Part 70 source which is in operation on orbefore December 19, [+99§.] 1994 is one that is submitted: (a) [F]for sources, exceptnatural gas processing plants, whichhave been issued apermit, including apermitmodification, pursuant to 20.2.72 NMAC, 20.2.74 NMAC, or 20.2.79 NMAC on or afterJanuary 1, 1987, by February 2, 1995, exceptthat persons owning more than one source in this category may submit applications for halfoftheir sources by February 2, 1995 and submitthe remaining applications by March 19, 1995; (b) [F]for sources, exceptnatural gas processing plants, which were issued a permit, including apermit modification, pursuantto 20.2.72 NMAC, 20.2.74 NMAC, or 20.2.79 NMAC priorto January 1, 1987, by June 19, 1995; (c) [F]forall other sources, by December 19, 1995. C. Completeness of[A**]~pp1ication[-;]~** (1) 

### To be deemed complete, an application mustprovide all information required pursuant to subsectionD of20.2.70.300 NMAC, except that applications forpermit modifications need supply such information only ifit is related to the proposed change.

20.2.70 NMAC Proposed Revisions Page 7 of 18

### (2) If, while processing an application, regardless ofwhether ithas been determined or deemed to be complete, the [91gepartrnentdetermines that additional information is necessary to evaluate ortake final action onthat application, it may request such information in writing and set areasonable deadline for a response. (3) Any applicantwho fails to submit any relevant facts orwho has submitted incorrect information in apermit application or in a supplemental submittal shall, uponbecoming aware ofsuch failure orincorrect submittal, promptly submit such supplementary facts or corrected information. In addition, an applicant shall provide further information as necessary to address any requirements thatbecome applicable to the source afterthe date itfiled a complete applicationbutpriorto release ofa draftpermit. (4) The applicant's ability to operate without apermit, as setforth in paragraph (2) ofsubsectionA of20.2.70.201 NMAC, shall be in effect from the date atimely application is submitted until the final permit is issued ordisapproved, provided thatthe applicant adequately submits any requested additional information by the deadline specifiedby the [I)]gepartrnent. D. Content of[A]f!:pplication[;]:. Any person seeking apermitunderthis Part shall do so by filing a written application withthe [I)]gepartment. The applicant shall submitthree (3) copies ofthe permit application, or more, as requested by the [9]gepartrnent. An applicantmay not omit information needed to determine the applicability of, orto impose, any applicable requirement, orto evaluatethe fee amountrequired under 20.2.71 NMAC (Operating Permit Emission Fees). Fugitive emissions shall be included in the permit application in the same manner as stack emissions, regardless ofwhetherthe source category in question is included in the list ofsources contained inthe defInition ofmajor source. All applications shall[.;] include the following. (1) 

### Be made on forms furnished by the [9]gepartrnent, which for the acid rain portions ofpermit applications and compliance plans shall be onnationally-standardized forms to the extentrequired by regulations promulgated undertitle IV ofthe Federal Act[tl:. (2) State the company's name and address (and, ifdifferent, plantname and address), togetherwiththe names and addresses ofthe owner(s), responsible official andthe operator ofthe source, any subsidiaries orparentcompanies, the company's state of incorporation orprincipal registrationto do business and corporate orpartnership relationship to otherpermittees subjectto this Part, and the telephone numbers and names ofthe owners' agent(s) and the site contact(s) familiar withplant**operations[~]:.** 

### (3) State the date ofthe application[tl:. (4) Include a description ofthe source's processes andproducts (by Standard Industrial Classification Code) including any associated with alternative scenarios identifIedby the applicant, and a map, such as the 7.5 minute Topographic Quadrangle map publishedby the United States Geological Surveyorthe mostdetailed map available showing the exact location ofthe source. The location shall be identifIedby latitude and longitude orby UTM coordinates[t]:. (5) For all emissions ofall airpollutants for whichthe source is major and all emissions ofregulated airpollutants, provide all emissions information, calculations and computations for the source and for each emissions unit, except for insignifIcant activities (as defmed in 20.2.70.7 NMAC). lIDs shall include: (a) [A]f!: process flow sheet ofall components ofthe facility which would be involved in routine operations and emissions;

20.2.70 NMAC Proposed Revisions Page 8 of 18(b) [IJidentification and description ofall emissions points in sufficient detail to establishthe basis for fees and applicability ofrequirements ofthe state and Federal Acts; (e)**[:g]~missions** rates in tons per year, pounds per hour and in such terms as are necessary to establish compliance consistent with the applicable standardreference test method; (d)**[81~pecific** information such as that regarding fuels, fuel use, raw materials, orproduction rates, to the extent it is needed to determine orregulate emissions; (e) [IJidentification and full description, including all calculations and the basis for all control efficiencies presented, ofairpollution control equipment and compliance monitoring devices or activities; 

### (1) [+]!he maximum and standard operating schedules ofthe source, as well as any workpractice standards or limitations on source operation which affect emissions of regulated pollutants; (g) [Afl]ifrequested by the department an operational plan defining the measures to be takento mitigate source emissions during startups, shutdowns and emergencies; (h) [Q]Qtherrelevant information as the [D]gepartment may reasonably require or which are required by any applicable requirements (including information relatedto stack height limitations developed pursuant to section 123 ofthe Federal Act); and (i) [F]for each alternative operating scenario identifiedby the applicant, all ofthe information required in subparagraphs (a) through (h) above, as well as additional information determined to be necessary by the [D]gepartmentto define such alternative operating scenarios[;l. (6) Provide a list ofinsignificant activities (as defined in 20.2.70.7 NMAC) atthe source, their emissions, to the extent required by the [D]gepartment, and any information necessary to determine applicable requirements[;].,. (7) Provide a citation and description ofall applicable airpollution control requirements, including: (a)**[8]~ufficient** information related to the emissions ofregulated air pollutants to verify the requirements that are applicable to the source; and (b) [A**l~** description ofor reference to any applicable test method for determining compliance with each applicable requirement[;l. (8) Provide an explanation ofany proposed exemptions from otherwise applicable requirements[;L (9) Provide other specific information that may be necessary to implement and enforce otherrequirements ofthe state orFederal Acts orto determine the applicability ofsuch requirements, including information necessary to collect any permit fees owed under 20.2.71 NMAC (Operating Permit Emission Fees)[;].,. (10) [For applications v/hich are required underthe transition schedule in paragraph (4) o[subsection B 0[20.2.70.300**}~** ..C,] For first time applications for sources that have not submitted modeling with an application under 20.2.72 NMAC

- Construction Permits, include a source-only dispersion modeling analysis, using US EPA approved models and procedures, in accordance withNew Mexico and US EPA modeling guidelines, showing whether emissions from the source would cause airpollutant concentrations in excess ofany national ambient air quality standard, except ozone. Airpollutants [whieh] that are not emitted in significant amounts (as defined in 40 CFR 52.21 (b)(23)(i)) [amounts] during routine operations

20.2.70 NMAC ProposedRevisions Page 9 of 18need notbe modeled. The modeling analysis shall not include emissions from insignificant activities located atthe source, emissions from any sources surrounding the facility being modeled, orbackground concentrations. The department may require modeling withrespectto ozone ifthe department determines that emissions from the source may cause or contribute to ozone concentrations in excess ofthe national ambient airquality standard. [Ea) This requirement shall not apply to the fulloVtIDg: Ei) l'

.. Part 70 source issued apermitunder 20.2.72 NMt\C, 20.2.74 NMAC, 20.2.79 NMAC afterJanuary 1, 1986; or (ii) A Part 70 source subjectto 20.2.14 NMAC, 20.2.16 NMAC, 20.2.19 NMAC, 20.2.31 NMAC, 20.2.32 miAC ifno physical or operational modifications that have resulted in increasedparticulate matter, sulfur dioxide, or nitrogen oxide emissions have occurred since the time modeling VIaS perfonned furthat facility as part ofre'visions to those regulations. (b) The Departmentmay 'Naive modeling ',vithrespect to ozone ifthe Department determines that emissions from the source are not likely to cause ozone concentrations 

### in excess ofthe national ambient air quality standard.] (11) Provide certification ofcompliance, including[.;] all ofthe following. (a) A certification, by a responsible official consistent with subsectionE of 20.2.70.300 NMAC, ofthe source's compliance status for each applicable requirement. For national ambient air quality standards: 

## 0) for first time applications for sources that have submitted modeling with an application under 20.2.72 NMAC

- 

### ConstructionPermits, this certification shall be based on suchmodeling; (ii) for first time applications for sources thathave not submitted modeling with an application under 20.2.72 NMAC

- 

### Construction Permits, this certification shall be based onthe modeling required by paragraph 10 ofthis subsection; (iii) for permitrenewal applications, this certification shall be based on compliance withthe relevant terms and conditions ofthe current operating permit. (b) A statement ofmethods used for determining compliance, including a description ofmonitoring, recordkeeping, and reporting requirements and test methods[;l. (c) A statementthatthe source will continueto be in compliance with applicablerequirements for which it is in compliance, and will, in a timely mannerorat such schedule expresslyrequired by the applicable requirement, meet additional applicable requirements thatbecome effective during the permitterm[;]",- (d) A schedule for submission ofcompliance certifications during the permit term, to be submitted no less frequently than annually, ormore frequently ifspecifiedby the underlying applicable requirement orby the [g]4epartment 

### [;--andl. (e) A statement indicating the source's compliance status with any enhanced monitoring and compliance certificationrequirements ofthe Federal Act. (12) For sources that are not in compliance with all applicable requirements atthe time ofpermit application, provide a compliance planthat contains.; all ofthe following. (a) A description ofthe compliance status ofthe source with respectto all applicablerequirements[;l. (b) A narrative description ofhowthe source will achieve compliance with suchrequirements for which itis not in compliance[;l.

20.2.70 NMAC Proposed Revisions Page 10 of18(e) A schedule ofremedial measures, including an enforceable sequence of actions with milestones, leading to compliance with such applicable requirements. The schedule ofcompliance shall be at least as stringent as that contained in any consent decree or administrative orderto which the source is subject, and the obligations ofany consent decree or administrative order shall not be in any way diminished by the schedule ofcompliance. Any such schedule ofcompliance shall be supplemental to, and shall notprohibit the [91gepartment from taking any enforcement action for noncompliance with, the applicablerequirements on which it is based[tL (d) A schedule for submission ofcertified progress reports no less frequently than every six (6) months[;-aHdt (e) Forthe portion ofeach acid rain source subjectto the acidrain provisions oftitle IV ofthe Federal Act, the compliance plan contentrequirements specified in this paragraph, except as specifically supersededby regulations promulgated undertitle IV ofthe Federal Act with regard to the schedule and methodes) the source will use to achieve compliance with the acid rain emissions limitations. E. Certification[-;-t Any document, including any application form, report, or compliance certification, submitted pursuantto this Part shall contain certification by a responsible official oftruth, accuracy, and completeness. This certification and any other certification requiredunderthis Part shall state that, based on information and beliefformed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.



### 20.2.70.302 PERMIT CONTENT: A. Permit [G]fonditions[-;-]:. (1) The [9]gepartment shall specify conditions upon a permit, including emission limitations and sufficient operational requirements and limitations, to assure compliance with all applicable requirements atthe time ofpermit issuance or as specified inthe approved schedule of compliance. The permit shall: (a) [F]for major sources, include all applicable requirements for all relevant emissions units in the major source. (b) [F]for any non-major source subjectto 20.2.70.200 NMAC

- 20.2.70.299 NMAC, include all applicable requirements which apply to emissions units that cause the source to be subjectto this Part. (e)**[S]~pecify** and reference the origin ofand authority for eachterm or condition, and identify any difference in form as compared to the applicable requirement upon which the term or condition is based; (d) [I]include a severability clause to ensure the continued validity ofthe various permit requirements in the event ofa challenge to any portions ofthe permit; (e) [I]include a provisionto ensure thatthe permittee pays fees to the [9]gepartment consistent with the fee schedule in 20.2.71 NMAC (Operating Permit Emission Fees); and (1) [F]forpurposes ofthe permit shield, identify any requirement specifically identified in the permit application or significantpermit modification that the [9]gepartmenthas determined is not applicable to the source, and state the basis for any such determination.

20.2.70 NMAC Proposed Revisions Page 11 of18(2) Eachpermitissued shall, additionally, include provisions stating [that;] the following. (a) The permittee shall comply with all terms and conditions ofthe permit. Any permit noncompliance is grounds for enforcement action. In addition, noncompliance with federally enforceablepermit conditions constitutes a violation ofthe Federal Act[;l. (b) It shall notbe a defense for a permittee in an enforcement action that it would have been necessary to halt orreduce the permitted activity in orderto maintain compliance with the conditions ofthe permit[;l. (c) The permitmay be modified, reopened and revised, revoked and reissued, or terminated for cause in accordance with 20.2.70.405 NMAC[;]-, (d) The filing ofa requestby the permittee for a permitmodification, revocation and reissuance, ortermination, or ofa notification ofplanned changes or anticipated noncompliance shall not stay any permit condition[;l. (e) The permit does not convey any property rights ofany sort, or any exclusiveprivilege[;l. 

### (t) Within the period specified by the [g]gepartment, the permittee shall furnish any informationthatthe [g]gepartment may request in writing to determine whether cause exists for reopening and revising, revoking and reissuing, ortermination ofthe permit orto determine compliance withthe permit. Upon request, the permittee shall also furnish to the [g]gepartment copies ofrecords required bythe permit to be maintained. (3) The terms and conditions for all alternative operating scenarios identified in the application and approved by the [I)]gepartment: (a)**[S]~hall** require thatthe permittee maintain a log atthe permitted facility which documents, contemporaneously with any change from one operating scenario to another, the scenario under which the facility is operating; and (b) [Shhall, for each such alternative scenario, meet all applicable requirements and the requirements ofthis Part. (4) The [9]gepartmentmay impose conditions regulating emissions during startup and shutdown. (5) All permitterms and conditions which are required under the Federal Act or under any ofits applicable requirements, including any provisions designed to limit a source's potential to emit, are enforceable by the Administrator and citizens under the Federal Act. The permit shall specifically designate as notbeing federally enforceable under the Federal Act any terms or conditions included in the permit that are not required underthe Federal Actor under any ofits applicable requirements. (6) The issuance ofa permit, orthe filing or approval ofa complianceplan, does not relieve any person from civil or criminal liability for failure to comply with the provisions of the Air Quality Control Act, the Federal Act, federal regulations thereunder, any applicable regulations ofthe Board, and any other applicable law orregulation. (7) The [g]gepartmentmay include part or all ofthe contents ofthe application as terms and conditions ofthe permit orpermitmodification. The [g]gepartment shall not apply permitterms and conditions upon emissions ofregulatedpollutants for which there are no applicable requirements, unless the source is major for thatpollutant. (8) Fugitive emissions from a source shall be included in the operating permitin the same manner as stack emissions, regardless ofwhether the source category in question is includedin the list ofsources contained inthe definition ofmajor source.

20.2.70 NMAC Proposed Revisions Page 12 of18

### (9) The acid rain portion ofoperating permits for acid rain sources shall additionally: (a)**[S]~tate** 

### that, where an applicable requirement ofthe Federal Act is more stringentthan an applicable requirementofregulations promulgated undertitle IV ofthe Federal Act, bothprovisions shall be incorporated into the permit and shall be enforceable by the**Administrator[~** 

### ]; and (b) 

### [G]fontain apermitconditionprohibiting emissions exceeding any allowances thatthe acid rain source lawfully holds undertitle IV ofthe Federal Act orthe regulations promulgated thereunder. No permitmodification underthis Part shall be required for increases in emissions that are authorized by allowances acquiredpursuantto the acid rain program, provided that such increases do notrequire apermitmodificationunder any other applicable requirement. No limit shall be placed on the numberofallowances held by the acid rain source. Thepermittee may notuse allowances as a defense to noncompliance with any other applicable requirement. Any such allowance shall be accounted for according to the procedures established in regulations promulgated undertitle IV ofthe Federal Act. B. Permit [9]guration[-:J,. The [9]gepartment shall issue operatingpermits for a fixed term offive (5) years. 

### C.**Monitoring[.;]~** (1) 

### Eachpermit shall contain all emissions monitoring requirements, and analysis procedures ortest methods, required to assure and verify compliance with the terms and conditions ofthe permit and applicable requirements, including any procedures and methods promulgated by the Administrator. (2) Where the applicable requirement does notrequire periodic testing or instrumental ornoninstrumental monitoring (which may consist ofrecordkeeping designed to serve as monitoring), the permit shall require periodic monitoring sufficientto yield reliable data from the relevanttime period that are representative ofthe source's compliance with the permit, as reportedpursuantto subsection E of20.2.70.302 NMAC. Such monitoring requirements shall assure use ofterms, test methods, units, averaging periods, and other statistical conventions consistent withthe applicable requirement. (3) The permit shall also contain specific requirements concerning the use, maintenance, and, when appropriate, installation ofmonitoring equipment ormethods. D.**Recordkeeping[.;]~** 

### (1) Thepermit shall require recordkeeping sufficientto assure and verify compliance with the terms and conditions ofthe permit, including recordkeeping of: (a) [+]1he date, place as defmed inthe permit, and time ofsampling or measurements; (b) [+]1he date(s) analyses were performed; (c) [+]!he company or entity thatperformed the analyses; (d) [+]1he analytical techniques ormethods used; (e) [+]1he results ofsuch analyses; and (1) [+]1he operating conditions existing atthe time ofsampling or measurement. (2) Records ofall monitoring data and support information shall be retained for a period ofatleastfive (5) years from the date ofthe monitoring sample, measurement, report, or application. Supporting informationincludes all calibration andmaintenance records and all

20.2.70 NMAC Proposed Revisions Page 13 of 18

### original strip-chartrecordings for continuous monitoring instrumentation, and copies ofall reports required by the permit. E. Reporting[.;l. The permit shall require reporting sufficientto assure and verify compliance withthe terms and conditions ofthe permitand all applicable requirements, including[.;] all ofthe following. (l) 

### Submittal ofreports ofany requiredmonitoring at leastevery six (6) months. The reports shall be due to the [9]gepartmentwithin forty-five (45) days ofthe end ofthe permittee's reporting period. All instances ofdeviations frompermitrequirements, including emergencies, mustbe clearly identified in such reports. All requiredreports mustbe certifiedby a responsible official consistent with subsectionE of20.2.70.300**NMAC[t]~** 

### (2) Promptreporting ofall deviations (including emergencies) from permit requirements, including the date, time, duration andprobable cause ofsuch deviations, the quantity and pollutanttype ofexcess emissions resulting from the deviation, and any corrective actions orpreventive measures taken. Suchreports shall includetelephone, verbal orfacsimile communicationwithin twenty-four (24) hours ofthe start ofthe nextbusiness day and written notification within ten (10)**days[t]~** 

### (3) Submittal ofcompliance certificationreports at leastevery twelve (12) months (or more frequently ifso specified by an applicable requirement) certifying the source's compliance status with [all permit] terms and conditions contained in the permit [and all applicable requirements relevantto the source], including [those relatedto] emission limitations

.. standards, or workpractices. The reports shall be 

### due to the [9]gepartmentwithinthirty (30) 

### days ofthe end ofthe permittee's reporting period. Such compliance certifications shall be submittedto the Administratoras well as to the [I)]gepartmentand shall include: (a) [+]!he identification ofeach term orcondition ofthe permitthat is the basis ofthe certification; (b) [+]!he compliance status ofthe source; (c) [W]whether compliance was continuous orintermittent; (d) [+J.!he methodes) used for determining the compliance status ofthe source, currently and during the reporting period identified inthe permit; and (e)**[S]~uch** 

### otherfacts as the [Jd]gepartmentmay require to determine the compliance status ofthe source[;--andl. (4) Such additional provisions as may be specifiedby theAdministratorto determine the compliance status ofthe source. F. Portable and Temporary**Sources[.;]~** 

### The [9]gepartmentmay issue permits for portable andtemporary sources which allow such sources to relocate withoutundergoing a permitmodification. Suchpermits shall not apply to acidrain sources and shall include conditions to assure that: (1) 

### [+]!he source is installed at all locations in a manner conforming withthe permit; (2) [+]!he source shall comply with all applicable requirements and all other provisions ofthis Part at all authorized locations; (3) [+]!he owner or operator shall notify the [Jd]gepartmentin writing at least fifteen (IS) calendardays in advance ofeach change in location; (4) [N]notification shall include a legal description ofwhere the source is to be relocated and how long itwill be located there; and

20.2.70 NMAC Proposed Revisions Page 14 of18

### (5)**[.g]~missions** 

### from the source shall not, at any location, result in orcontribute to an exceedance ofanational ambient airquality standard orincrement orvisibility requirement under Part C oftitle I ofthe Federal Act. The [9]gepartrnentmay require dispersion modeling to assure compliance at any location. G.**Compliance[~]~** 

### To assure and verify compliance with the terms and conditions of thepermit and withthis Part, permits shall alsor:] include all the following. (1) Require that, uponpresentation ofcredentials and otherdocuments as may be required by law, the permittee shall allow authorized representatives ofthe [9]gepartmentto performthe following: (a)**[.g]~nter** 

### upon the permittee's premises where a source is located or emissionrelated activity is conducted, orwhere records mustbe kept under the conditions ofthe permit; (b) [H]have access to and copy any records that mustbe kept underthe conditions ofthe permit; (c) [I]inspect any facilities, equipment (including monitoring and air pollution control equipment), practices, or operations regulated orrequired underthe permit; and (d)**[S]~ample** 

### ormonitorany substances orparameters for the purpose of assuring compliance with the permitor applicable requirements or as otherwise authorizedby the Federal Act.(2) Require that sources requiredunderparagraph (12) ofsubsection D of 20.2.70.300 NMAC to have a schedule ofcompliance submitprogress reports to the [9]gepartment at least semiannually, ormore frequently ifspecified inthe applicable requirement orby the [9]gepartment. Suchprogress reports shall be consistentwith the schedule ofcompliance and requirements ofparagraph (12) ofsubsection D of20.2.70.300 NMAC and shall contain: (a) [9]gates for achieving the activities, milestones, orcompliance required in the schedule ofcompliance, and dates when such activities, milestones or compliance were achieved; and (b) [A]f!Il explanation ofwhy any dates inthe schedule ofcompliance were not orwill notbe met, and any preventive orcorrective measures adopted. (3) Include such otherprovisions as the [9]gepartmentmay require. H. Operational**Flexibility[~]~** 

### (1) Section 502(b)(10) Changes (a) The permittee may make section 502(b)(10) changes, as defmed in 20.2.70.7 NMAC, without applying for apermitmodification, ifthose changes are not title I modifications and the changes do not causethe facility to exceed the emissions allowable under the permit (whetherexpressed as arate ofemissions orinterms oftotal emissions). (b) Foreach such change, the permittee shall provide written notification to the [9]gepartment andthe Administrator at least seven (7) days in advance ofthe proposed changes. Such notification shall include a briefdescription ofthe change within thepermitted facility, the date onwhichthe change will occur, any change in emissions, and any permitterm orconditionthat is no longer applicable as aresult ofthe change. (c) The permittee and [9]gepartment shall attach each such notice to their copy ofthe relevantpermit. (d) Ifthe written notification and the change qualify underthis provision, the permittee is notrequiredto comply withthepermitterms and conditions it has identifiedthat

20.2.70 NMAC Proposed Revisions Page 15 of18

### restrictthe change. Ifthe change does not qualify under this provision, the original terms ofthe permitremain fully enforceable. (2) Emissions trading within a**facility[7]~** 

### (a) The [D]gepartment shall, ifan applicantrequests it, issue permits that contain terms and conditions allowing forthe trading ofemissions increases and decreases in the permitted facility solely for the purpose ofcomplying with afederally enforceable emissions cap thatis established inthe permitin additionto any applicablerequirements. Suchterms and conditions shall include all tenns and conditions required under 20.2.70.302 NMAC to determine compliance. Ifapplicable requirements apply to the requested emissions trading, permit conditions shall be issued only to the extentthatthe applicable requirements provide for trading such increases and decreases without a case-by-case approval. (b) The applicant shall include inthe applicationproposed replicable procedures and permitterms that ensurethe emissions trades are quantifiable and enforceable. The [DMepartment shall not include in the emissions trading provisions any emissions units for which emissions are not quantifiable or for whichthere are no replicableprocedures to enforce the emissions trades. The pennit shall require compliance with all applicable requirements. (c) Foreach such change, the permittee shall provide written notification to the [D]gepartment and the Administrator at least seven (7) days in advance ofthe proposed changes. Suchnotification shall state when the change will occur and shall describe the changes in emissions that will result and howthese increases and decreases in emissions will comply with the terms and conditions ofthepermit. (d) The pennittee and [D]gepartment shall attach each such notice to their copy ofthe relevantpermit. 

### I. Off-Pennit Changes[**7]~** 

### (1) Permittees are allowed to make, without apermitmodification, changes that are not addressed orprohibitedby the operating pennit, if: (a)**[E]~ach** 

### such change meets all applicable requirements and shall not violate any existing permittenn or condition; (b)**[S]~uch** 

### changes are not subjectto any requirements undertitle IV ofthe Federal Actand are nottitle I modifications; (c)**[S]~uch** 

### changes are not subjectto permitmodificationprocedures under 20.2.70.404 NMAC; and (d) [+].thepermittee provides contemporaneous written notice to the [D]gepartment and US EPA ofeach such change, except for changes that qualify as insignificant activities. Such written notice shall describe each such change, including the date, any change in emissions, pollutants emitted and any applicablerequirementthatwould apply as a result ofthe change. (2) Thepermittee shall keep a record describing changes made atthe sourcethat result in emissions ofa regulated air

### pollutant subjectto an applicable requirement, but not otherwise regulated under the permit, andthe emissions resulting from those changes. 

### J. Permit Shield[7t (1) Except as provided inthis Part, the [D]gepartment shall expressly include in a Part70 (20.2.70 NMAC) permit aprovision stating that compliance withthe conditions ofthe permit shall be deemed compliance with any applicable requirements as ofthe date ofpermit issuance, provided that:

20.2.70 NMAC Proposed Revisions Page 16 of18

### (a)**[8]~uch** 

### applicablerequirements are included and are specifically identified inthe pennit; or (b) [+]!he [D]gepartrnent, in acting onthe permit application or significant pennitmodification, determines in writingthatotherrequirements specifically identified are not applicable to the source, and the permitincludes the determination ora concise summary thereof. (2) A Part 70 (20.2.70 NMAC) permitthat does not expressly state that apermit shield exists for a specific provision shall be presumed notto provide such a shield for that provISIOn. (3) Nothing in this section or in any Part 70 (20.2.70 NMAC) permit shall alter or affectthe following: (a) [+]!he provisions ofsection 303 ofthe Federal Act

-- Emergency Powers, including the authority ofthe Administratorunderthat section, orthe provisions ofthe New Mexico Air Quality Control Act, section 74-2-10 NMSA 1978; (b) [+]!he liability ofan owner oroperator ofa source for any violation of applicable requirements priorto or atthe time ofpermit issuance; (c) [+]!he applicable requirements ofthe acid rainprogram, consistent with section 408(a) ofthe Federal Act; or (d) [+]!he ability ofUS EPA to obtain information from a source pursuantto section 114 ofthe Federal Act, orthe [D]gepartrnentto obtain information subjectto the New Mexico Air Quality Control Act, section 74-2-13 NMSA 1978. (4) The permit shield shall remain in effect ifthe permitterms and conditions are extended pastthe expiration date ofthe permitpursuantto subsection D of20.2.700400

### NMAC. (5) The permit shield shall extendto terms and conditions that allow emission increases and decreases as partofemissions trading within a facility pursuantto paragraph (2) of subsectionH of20.2.70.302 NMAC, andto all terms and conditions undereach operating scenario included pursuantto paragraph (3) ofsubsectionA of20.2.70.302 NMAC. (6) The pennit shield shall not extend to administrative amendments under subsectionA of20.2.70.404 NMAC, to minorpermitmodifications under subsection B of 20.2.70.404 NMAC, to section 502(b)(10) changes underparagraph (1) ofsubsectionH of 20.2.70.302 NMAC, orto permitterms or conditions for which notice has been given to reopen orrevoke all orpartunder20.2.700405

### NMAC.

20.2.70.304 EMERGENCY PROVISION[f]: A. An 

### "emergency" means any situation arising from sudden and reasonably unforeseeable events beyond the control ofthe permittee, including acts ofGod, which situation requires immediate corrective action to restore normal operation, and that causes the source to exceed a technology-based emission limitation underthe permit due to unavoidable increases in emissions attributable to the emergency. An 

### emergency shall not include noncompliance to the extentcausedby improperly designed equipment, lack ofpreventive maintenance, orcareless or improper operation. B. An 

### emergency constitutes an affirmative defense to an actionbroughtfor noncompliance with suchtechnology-based emission limitations ifthe permittee has demonstrated through properly signed, contemporaneous operating logs, or otherrelevant evidence that:

20.2.70 NMAC Proposed Revisions Page 17 of18

### (1) An 

### emergency occurred andthatthe permittee can identify the cause(s) ofthe emergency;(2) The permitted facility was atthe time beingproperly operated; (3) During the period ofthe emergency the permittee took all reasonable steps to minimize levels ofemissions that exceeded the emission standards or other requirements in the permit; and(4) Thepermittee fulfilled notification requirements underparagraph (2) of subsection E of20.2.70.302NMAC. This notice must contain a description ofthe emergency, any steps takento mitigate emissions, and corrective actions taken. C. In any enforcementproceeding, the permittee seeking to establishthe occurrence ofan emergency has the burden ofproof. D. This provision is in additionto any emergency orupsetprovision containedin any applicable requirement[, exceptthatPart 70 souroes shall notbe subjectto the provisions of 20.2.7 NMAC (Excess Emissions during

### Malfunction, Startup, Shutdovffl, or Scheduled Maintenance) for permitterms and conditions issuedunder 20.2.70 N},.iACl

20.2.70 NMAC Proposed Revisions Page 18 of 18Ms. Gay Dillingham, Chairperson New Mexico Environmental Improvement Board Harold Runnels Building, RoomN-2153 1190 St. Francis Drive Santa Fe, New Mexico 87502 RON CURRY Secretary
DERRITH WA TCHMAN-MOORE Deputy Secretary

.-;. 

### State of NewMexico 

## ENVIRONMENTDEPARTMENT Air Quality Bureau

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

Fax (505) 827-1543 www.nmenv.state.nn1.US

April 17, 2006 BILL RICHARDSON Governor

Re: EIB 05-12 (R)/Revised Petition for Public Hearing to Consider Proposed Amendments to Title 20, Chapter 2, Parts 3 and 70 ofthe New Mexico Administrative Code
Dear Ms. Dillingham:
The Air Quality Bureau of the New Mexico Environment Department (NMED) respectfully requests a hearing before the Environmental Improvement Board (Board) on proposed amendments to two ofthe Air Quality Rules, 20.2.3 NMAC

- Ambient Air Quality Standards (PaIi 3) and 20.2.70 NMAC

- Operating Permits (Part 70). NMED originally petitioned the Board in August 2005 to amend 20.2.70 NMAC. That petition was granted aI1d hearing was scheduled for March 2006. The March 2006 hearing was rescheduled to the Board's regularly scheduled August 2006 meeting. Since NMED filed its original petition, NMED has reviewed and revised its proposed aInendments and submits this revised petition. NMED requests that the Board consider this revised petition at its regularly scheduled meeting on May 3, 2006 and maintain the August 2006 hearing date for the proposed rule changes.
In its revised petition, NMED proposes to add a new section to 20.2.3, thereby adding a new 20.2.3.9 NMAC. The new section would provide that Part 20.2.3 does not apply to 20.2.70 NMAC

- Operating Permits. The proposed revision to 20.2.70 NMAC described below, requiring that sources that have not obtained a permit or have not shown compliance with ambient air quality standards through modeling under 20.2.72 NMAC (Construction Permits), ensures that all major sources in New Mexico address the requirements of 20.2.3 NMAC as specified in the permitting process of20.2.72 NMAC. This is a revision to the New Mexico State Implementation Plan.

### _ Ms. Gay Dillingham April 17,2006 Page 2
NMED proposes to clarify the procedure for affected sources to submit dispersion modeling for and to certify compliance with the National Ambient Air Quality Standards ("NAAQS") and to require that sources permitted under 20.2.70 NMAC (Operating Permits) obtain a 20.2.72 NMAC permit ifthey have not done so or have not previously shown modeled compliance with national andNew Mexico ambient air quality standards.
NMED's proposal clarifies that celiifications of compliance for new sources under 20.2.70.300.D.ll NMAC will be based on the modeling submitted with the construction pelmit application and, for sources renewing their permit, on compliance with the terms and conditions of the permit. NMED proposes to revise 20.2.70.302.E.3 NMAC to clarify that annual compliance certifications are based on compliance with the terms and conditions in the permit.
NMED proposes to revise 20.2.70.300.D(5)(g) NMAC to allow NMED to have discretion in requiring applicants to submit operational plans for start-up and shutdown. In NMED's view, Title V sources should comply with the terms and conditions of their permits at all times, including during startup and shutdown, and should be required to provide the same notification ofviolations as required at all other times. NMED also believes that Title V 

### sources should be able to claim the same affirmative defenses for such violations. NMED has found that the range offacilities subject to the operational plan requirement is too broad to define generally applicable conditions, and as aresult, the operational plans have varied widely in quality and enforceability.

f 

### NMED proposes to revise 20.2.70.304.D NMAC to match the equivalent federal language in 

### 40 CFR § 70.6. With this revision, the rule will require Title V 

### sources to report violations ofthe terms and conditions in their permits and claim affirmative defenses for such violations in a manner consistent with other permitted sources. Currently, sources permitted under 20.2.70 NMAC have some permit conditions that are subject to 20.2.7 NMAC and other conditions that are not.
NMED respectfully requests that the Board, at its May 3, 2006 meeting, set these proposed rule amendments for hearing at the Board meeting in August 2006. Enclosed is a copy of the proposed rule changes showing the rule provisions that NMED intends to request that the Board adopt at the hearing. Some editing, fOlmatting, and numbering changes may occur prior to the August 2006 EIB meeting and NMED will provide the Board with an updated version ofthe proposed rules at the time notices ofintent to presenttechnical evidence are due.
Thankyou for your consideration ofthis request. Sincerely,

# :::~ 

# u h 

# I/ IUF

Air Quality Bureau1v1s. Gay Dillingham April 17, 2006 Page 3
Enclosure
cc: Jim Norton, Director, Environmental Protection Division, NMED Kathi Bearden, Member, EIB Gregory Green, Member, EIB Dolores Herrera, Member, EIB Ken Marsh, Member, EIB SorenPeters, Member, EIB Harold Tso, Member, EIB Zachary Shandler, Counsel, EIB

.'. I

### STATE OF NEW MEXICO County ofBernalillo SS

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 paper in the regular daily edition, for 

## -.l- times, the first publication being on the day of 

# --vrf\-c04,

## 2~~i.!h"**sUb~equent** consecutive publications on

_ 

### J "'"\ , 20_.

d to lefore me, a Notary Public, in and for the County of Bernalillo and State of New Mexico this

## ~day Of"'Y\{\a

## :J_Of20.p..~

PRICE \ 

# le**(...e~~+-I t"""""~** **_9-+\~** _ Statement to come at end ofmonth.

>.NEW MEXICO ENVIRONMENTAL IMPROVEMENTBOARD NOTICE OF PUBLIC MEETING AND RULE MAKING HEARING

The New Mexico Environmental Improvement Board ("Board') will hold a pUblic rule making heanng on August 1, 2006 at9:00 a.m, at Ihe State Capitol Building, Room # 321, Santa Fe, New Mexico, to consider the matter of EIB 05-12(R) to revise 20.2,3 NMAC (Ambient Air Quality Standards),**~0.2.70** NMAC (Operating Permitsj and 20.2.72 NMAC (Construction 

### I Permfts). '

The proponent ofthe regulatol)' I change is the New Mexico EnvIronmenl Department ('NMEO'). Proposed revisions to 20

. .2.70 NMAC:

NMED**pr~ses** to amend the definition of applicable require· ment' in the rule by removing the New Mexico Ambient Air Quality Standards ('NMMQS'); to**clari~** the procedure for affected**source~** to submil dispersion modeling 101 and to certify compliance witli tho National AmbientAir Quality Standards' ('NMOS'); and to require that sources permitted under 20.2.70 NMAC mle V permits) obtain a20.2.72 NMAC or20.2.74 NMAC permit it they have not done so previously, NMEO's proposal clan lies that certifications of compliance for newsources under 20.2.70,300.0.11 NMAC will be

, based on the moc;lellng**sUbmille~** i With the construction permit appli- cation and, for sources renewing their pe!ll\lt, on compliance 'IIiIh the terms and conditions of the permtl. NMEO proposes to revise ,20.2.70.302.E.3 NMAC to clarity**t~at** annual complianCe cerlilica· lions are based on**com~liance** with the terms and conditions in the permij.

NMEO proposes to reVise 202.70.300.0(5)(Q) NMAC 10 give NMEO discretion In requiring ap·· i plicants to SUbmit operational I pians for start·up and shutdown. NMED proposes to revise 120.2.70.304.0 NMAC to match the eqYivalent federal tanguaQe in 40 CFR 70.6. With this revisIon the ruie will require Tttle Vsources to report violations of the terms and conditions in their permits and claim affirmative defenses for such violations in a manner consistent wfth other permitted 5OUFtes. Cur·**rentl~,** sources permitted under 20.2.70 NMAC have some permij condilions that are SUbject to 20,2.7 NMAC and Otherconditions that are nol. Proposed revision to 20.2.3 NMAC:

. ,

NMED proposes to add section 20.2.3.9 NMAC to 20.2.3 NMAC,**~Ich** would provide that 20.2.3 NMAC would not apply to 20.2.70 I NMAC

- Dperatill9 Permits. The proposed revision to 20.2.70 ,NMAC that requires sources that have not obtairied a**perm~** under 20.2.72 NMAC (Construction Permfts) or 20.2.74 NMAC (Permits

-**Pr~vention** of Significant Deteriorellon) ensures tfiat**al~** sources in New Mexico will meet the reqUirements of 20.2,3 NMAC, This is a revision to lhe New Mexico State

, Implementation Plan.

_ I Proposed revisions to 20.2.72 INMAC: NMt:D proposes to revise 20.2.72.216 NMAC 50 that ij will apf'y to existing. sourcesthai do no propose an Increase \n emiSsions but will emil a regUlated air contaminant exceeding Ihe signifi. cant concentration for that pollutant listed in 20.2.72.500 NMAC at any location that does not meet the NMOS for the contaminant. In addition, subseC1ion Cis added to require that existing sources suIIjeet 10 the section must demonstrale anet air quality benefit ofat least a 20 percent reduction in ambient impact for each applicable i contarmnant

. The proposed changes may be reviewed during re.gular business hours at the NMEO Air Quality Bureau office, 2044 Galisteo, Santa Fe, ·New Mexico. Afulilexl 01 NMEO's proposed changes are available on NMED's weD site at www.nmenv.state.nm.us. or

.contacting Rila Trujillo at (505) I' 955·80240r rita.lrujlllo@state.nm.us.

.

The hearing will be. conducted. in accordance wilh 20.1.1 NMAC (Rulemaking Procedures) Environmental Improvement Board; the Environmental Improvement Act, Section 74·t·9 NMSA 1978; ,the Air QUality Control Act Section 72·2-6 NMSA t978; and other applicable procedures..

.

All interested persons will be given reasonable opportunity a.t the hearing to submft relevant evi· dence, data, views and arguments, orallv, or in wrtllng, t,o**int(odu~** exhiMs, and \0 examine witness- es. Persons wishing to present technical testimony must file with the Board awritten notice of Intent to do so. The notice of intentshall: (1) identify !he person for whom !hi! witness(es) will testily;

. (2) identify each lechnical witness thatlhe person intendS to present and state the gualifications of the witness, inclUding adescription of their education and work back·**ound;** 3) summarize or include a yof

. I e direct testimony of**eac~ch'** nical witness and stale the antici· pated duration ot the lestimony of that witness; i4) list and describe, or attach, each exhibit anticipated to be offered by that person at the .hearIng; and

. (5) attach the text of any recom- mended modnications to the proIX)sed changes.

Notices 01 intent for the hearing must be received In the Office 01

___ the Board not later than 5:00 pm .an July 7, 2006, 'and should ref· erence the docket number, EIB 05-12(R), and the date of tlie hearing. Notices of intent to present teclmical testimony**~houldbe** submitted to:

. Joyce Medina, Board Administrator Office of the Environmental Improvement Board Harold Runne\s Building 1t90 SI. Francis Dr., Room N·2150/2153 Santa Fe, NM 87502 Phone: (505)827·2425, Fax (505)**8~7-2836** . Any member of the general public may testily at the liearing. No prior notification is re9uired to present non-technical testimony at the hearing, Any such member may also offer exhibits in connec- tion with his**testimon~,** so klng as the exhib" is not unduly repelltrous of the testimony.

Amember 01 the general public whO wishes to submit a written statement for the record, In lieu of providing orai testimony at the hearing, shallfile 1he wlitten state· ment prior to the hearing, or sub· mtl at the hearing. 

## I Persons having a disabllily and needing help in being a artof this 'I hearing process snoufd contact Judy Bentley by July 18, 2006 at the NMED Personnel Services Bureau, P.D. Box26110, 1190 51. Francis Drive, Santa Fe, New Mexico, 87502, telephone 505-827-9872, TOY users please access her number via the New Mexico Relay Network at 1·800-659·8331-

The Board may deliberate and rule on the proposed amendments at the close of the hearing or tile Board may convene a meeting afterthe healing. to consider actionNMED'S STATEMENT OF INTENT TO PRESENT TECHNICAL EVIDENCE IN THE MATTER OF THE PETITION FOR PUBLIC HEARING TO CONSIDER PROPOSED AMENDMENTS TO 20.2.70NMAC, AIR QUALITY RULES, OPERATING PERMITS STATE OF NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD
NO. EIB-05-12 (R S678910 llr ,

### 'V~ II,

### '~

.... T 

### I 

### $ 

## "" JUL 2006 u\ OR' -""

... t't) ecel"'b'tJ: C)

.**EDlilroP."14i~! Ill;~**  .... "" k4li "**~~** ..;(0**~~~** 

### .**o~**

### ,(;,~~€Z**1:t~** Pursuant to Section 20.1.1.300.C NMAC, the NewMexico Environment

### Departmen~ ("NMED") hereby submits its Notice ofIntent to Present Technical Testimony in this matter.
1. Identity ofentity for whom the witness will testify: NMED.
2. Identity ofeach technical witness and their qualifications: Richard Goodyear, Manager, Permitting Section, NMED Air Quality Bureau. A summary ofMr. Goodyear's qualifications is attached as NMED Exhibit A.
3. Summary oftestimony. A summary ofMr. Goodyear's direct testimony is
attached as NMED Exhibit B.
4. Text ofrecommended modifications to the proposed regulatory change: A copy
ofNMED's recommended modifications to 20.2.70, 20.2.3, and 20.2.72.216
NMAC is attached as NMED Exhibits C-l, C-2, and C-3, respectively. NMED's
recommended modifications appear in redline/strikeout format and are highlighted.
5. List ofexhibits athearing:
A. Mr. Goodyear's resume.
B. A summary ofMr. Goodyear's direct testimony.

### C. A copy ofNMED's recommended modifications to 20.2.70,20.2.3, and
20.2.72.216 NMAC.
D. Affidavits ofpublication in New Mexico Register and Albuquerque
Journal.
E. Lists ofentities invited and who participated in public meetings on the proposed regulatory change.
NMED reserves the rightto introduce rebuttal testimony and exhibits.

Respectfully submitted,
NEW MEXICO ENVIRONMENT DEPARTMENT

Tannis 

### L. Fox Deputy General Counsel Office ofGeneral Counsel P.O. Box 26110 SantaFe, New Mexico 87504 (505) 827-1603 Attorney for NMED

Certificate ofService
I certify that a copy ofthe foregoing pleading was served by mail on July 7, 2006 on Zachary Shandler, Assistant Attorney General, Office ofthe Attorney General, P.O. Box 1508, SantaFe, New Mexico 87504-1508.

Tannis 

### L. Fox

2

### RICHARD GOODYEAR
TITLE: Engineering Manager (Admin/ops) Registered professional engineer inNM
EDUCATION: B.S., United States Military Academy, 1970 M.S., Mechanical Engineering, Iowa State University, 1975
EXPERIENCE (May 06): Air Permitting Experience with NMED/AQB: 13.8 years Total Environmental Experience: 17.8 years Total Technical Experience: 34.8 years Total Managerial Experience: 27.3 years TECHNICAL EXPERIENCE: Environmental



### • 1987

- 1991: Planned, organized, and directed the environmental program of a military community

- to include compliance with federal, state, and local laws on solid waste, radon, asbestos, hazardous waste, water quality, sewage treatment, and underground storage tanks.

• 1992

- 1993: Processed constructionpermitapplications for the state ofNew Mexico.

• 1994

- 1996: Organized and directed the air quality operating permitprogram for the state ofNew Mexico.

• 1996

- present: Directs all airpermitting programs for the state ofNew Mexico. Military 

### 1970

- 1991: Troop unit experience included positions of platoon leader and commander at engineer company level, and personnel officer, logistics officer, equipment maintenance officer, and executive officer at engineer battalion level. Other assignments included deputy project manager for research and development ofa subsystem ofa military rocket, assistant professor of engineering at the United States Military Academy, and public works director for a military community of46,000 acres and 1200 buildings, supporting 85,000 personnel.
TECHNICAL TRAINING EPA 413

- Control ofParticulate Emissions
EPA 415

- Control ofGaseous Emission
EPA 423

- Dispersion ofAirPollution

- Model Applications
EPA 427

- Combustion Evaluation
EPA 461

- Intermediate Permitting
EPA 454

- Effective Permit Writing
NMED EXHIBIT A

### EPA 400

- Introductionto Air Toxics (SI)
Stress Management and Effective Communication Skills, 1997 Dealing with Conflict andNegativity inthe Workplace, 1997
Howto Deal with Employee Attitude Problems, 1998
Communication and ConflictManagement, 1998
SFCC ManagementDevelopmentProgram, 1998
NMED Legal Training/Documentation, 1999 Systematic DevelopmentofInformed Consent, 1999
The Public Servant Manager, 2000
7 Habits ofHighly Successful People, 2000 Management Conference, 2000 Improving Teamwork, 2001
Conflict Management, 2001
Emotional Intelligence, 2001 Recruiting and Interviewing Skills, 2001 Organizational Courage in State Government: A Practical Guide for Documenting Discipline, 2001
New Mexico Public Servant Leadership Program, 2001
Woodstock Institute for Negotiation

- Negotiating, Collaborating, and Leading in Today's World,2001 Managing Organizational Performance, 2002
SFCC ManagementDevelopmentProgram, 2006
Public Sector Employment Law for Managers and Supervisors, 2006

### STATE OF NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD
IN THE MATTER OF THE PETITION FOR PUBLIC HEARING TO CONSIDER PROPOSED AMENDMENTS TO 20.2.70 NMAC, AIR QUALITY RULES OPERATING PERMITS No. EIB 05-12(R)

NEW MEXICO ENVIRONMENT DEPARTMENT'S DIRECT TESTIMONY


# r. INTRODUCTION
The New Mexico Environment Department ("Department") comes before the
Environmental Improvement Board ("ErB") to request changes to several Air Quality Control Regulations. The Department's majorproposals are: 1. The Departmentproposes to clarify that the New Mexico Ambient Air Quality
Standards ("NMAAQS") are applied"to major sources under 20.2.72 NMAC

- Construction
Permits 

### and are implemented inthe operating permit as part ofthe incorporated construction permit.
2. The Departmentproposes to clarify the requirements for major sources to model
and certify compliance with the National Ambient Air Quality Standards ("NAAQS").
3. The Departmentproposes to allow discretion in requiring applicants to submit operational plans for startup and shutdown so thatthe plans that are submitted with Title V applications are appropriate and meaningful.
4. Finally, the Department proposes to change the section on emergency operation in
the Title V rule.
The Department's proposals concern the EIB's implementing Title V ofthe federal Clean
Air Act ("CAA"), and two regulations that are part ofthe New Mexico State Implementation
Plan (SIP)

- the constructionpermits rule (20.2.72 NMAC) and the ambient air quality standards

DIRECT TESTIMONY

- PAGE 1 NMED EXHIBIT Brule (20.2.3 NMAC). These SIP rules have been in place since 1972 and 1970 respectively, and
have been revised overthe years. Title V was adopted as part ofthe 1990 CAA Amendments. It

was intended to consolidate into a single comprehensive enforceable document, called the "operating permit", all applicable requirements for "ma jor sources". Under Title V, a source is
considered to be "ma jor" ifit has the potential to emit more than one hundred (100) tons per year
ofan air pollutant, such as nitrogen oxides ("NOx"), sulfur dioxide ("S02"), carbon monoxide ("CO"), orparticulate matter ("PM"); or more than ten (10) tons per year ofa hazardous air pollutant ("HAP"); or twenty five (25) tons per year ofall hazardous air pollutants. In 1992, the
U.S. Environmental Protection Agency ("EPA") adopted regulations establishing the minimum requirements for state Title V programs. In 1993, the EIB adopted regulations for New Mexico's
Title V program. See 20.2.70 NMAC

- OperatingPermits (fonnerly Air Quality Control Regulation 770 ("AQCR 770"». In 1994, the EPA granted interim approval ofNew Mexico's
Title V program and, in 1996, it granted final and full approval.
A significant issue in this hearing concerns the applicability ofthe NAAQS and NMAAQS to major sources subjectto New Mexico's Title V program. The NAAQS and NMAAQS are designed to ensure clean and healthy air for the citizens and environment ofNew
Mexico. They are set to preventpollutant levels in ambient air that could affect the health of
sensitive populations such as children, the elderly, and the infinn, cause damage to the
environment including wildlife, crops, and building materials, or create haze that obscures visibility across our scenic state. The EPA has adopted NAAQS for NOx, SOx, PM, CO, lead,
and ozone. The EIB has adopted NMAAQS for NOx, SOx, and CO, as well as total suspended particulates ("TSP"), hydrogen sulfide ("H

### zS"), and total reduced sulfur ("TRS"). The NMAAQS complement the NAAQS, and in some cases, differ from and are more stringentthan

DIRECT TESTIMONY
- PAGE 2

### the NAAQS.
One ofthe Department's most important functions is to ensure compliance with the NAAQS and NMAAQS. By ensuring compliance with these standards, the Departmentprevents
health and welfare impacts from large industrial facilities, prevents facilities that produce
excessive dust like rock crushers and asphalt plants from locating nearer to residences and
recreational areas, controls the emission ofdangerous pollutants like H2

### S, which smells bad and
is deadly in high concentrations, and minimizes environmental impacts like acid rain and haze.
The Department ensures compliance with the NAAQS and NMAAQS in two ways. First, the Department operates a system ofair quality monitors. However, it is expensive to
maintain air quality monitors, and it is not possibleto install enough monitors for all ofthe pollutants to ensure compliance throughout the state. Therefore, the Department relies on air quality modeling, like the EPA and all ofthe states, to ensure that pollution sources comply with
the NAAQS and NMAAQS. Modeling is particularly useful for predicting air quality impacts
from pollution sources, especially in the complex terrain ofNew Mexico.
Most pollution sources in New Mexico comply with the NAAQS and NMAAQS. The
construction permit regulation, 20.2.72 NMAC, requires all new sources to demonstrate compliance with the NAAQS and NMAAQS before commencing construction (20.2.72.200.A.1 NMAC). However, some sources were existing when the EIB adopted the constructionpermit regulation in 1972. These sources were not required to obtain a construction permituntil they
made a modification (20.2.72.200.A.2 NMAC). The regulation defines "modification" as a physical change or change in the method ofoperation ofa source that results in an increase in the potential emission rate ofa regulatedpollutant orthe emission ofaregulated pollutant not previously emitted by the source (20.2.72.7.P NMAC). In some cases, these existing sources did

DIRECT TESTIMONY
- PAGE 3

### not comply with the NAAQS and NMAAQS. When these sources make amodification, the regulation allows these sources to do so without complying with the NAAQS or NMAAQS as long as they offsettheir impact on the applicable standard (20.2.72.208.D NMAC).
Since the EIB adopted these requirements in 1972, many existing sources that did not comply with the NAAQS and NMAAQS have made modifications. Most ofthese sources now comply with the NAAQS and NMAAQS, but a small number ofthem continue to exceed the NMAAQS as authorized under the offsetprovision. On the otherhand, there are a small number
ofexisting sources that have never made amodification. These grandfathered sources were

neverreviewed underthe construction permitregulation, and some ofthem continue to exceed
the NMAAQS and have never complied with the offsetprovision. Ofthis last category of

sources, some are "major" under Title V.
For all major sources, regardless oftheir date ofconstruction, the operating pennit regulation currently requires compliance withthe NAAQS and NMAAQS. However, the regulation does notrequire all major sources to conduct air dispersion modeling to demonstrate compliance with the NMAAQS. As aresult, some major sources that were neverreviewed
under the construction pennit regulation, because they existed before the construction pennit regulation and were never modified, were able to avoid the obligation to demonstrate compliance
with the NMAAQS underthe operating permit regulation. J


### This loophole was not exploited by all major sources in this category. Some ofthem voluntarily
conducted air dispersion modeling and reduced emissions to comply with the NMAAQS. Others
have done the same to settle enforcement actions for unrelated air quality violations. Eight (8)

I The requirement for air dispersion modeling differed for the NAAQS and NMAAQS, and all major sources have complied with the requirement for the NAAQS.

DIRECT TESTIMONY
- PAGE 4

### major sources in their current configuration have not conducted air dispersion modeling for NMAAQS.2


### The Department believes that it is importantto hold these sources accountable for their pollution by first deternlining whether they are causing an exceedance ofthe state standards and by then requiring corrective actions to comply with the NMAAQS, such as raising stack heights, taking enforceable limitations on hours ofoperation, or replacing old compressor engines.
Since 1997, the Department has worked with Title V sources to obtain voluntary compliance with the NMAAQS. Over the years, the Departmentmet numerous times with Title
V sources, including at least four (4) public meetings (Jan 8, 2001, Oct 8, 2002, Sep 21, 2004, July 6, 2006), to hear and respond to their concerns. In addition to holding public meetings, the Department met with numerous stakeholders, including industry and public representatives, on the issues ofambient air quality standards and Title V sources. The Departmenthas also
maintained a web site and posted regulatory revisions as available. The Departmentheld the
final public meeting on this issue in SantaFe on July 6, 2006, to discuss the proposed regulatory changes with the public. Industry, environmental and public members were invited. Seven industry representatives attended this meeting. The Departmentrevised its proposal for Part 70
based on the comments received at this meeting, as I will describe later. In 2002, some ofthese

sources, in the form ofan informal association called the "Industry Working Group", soughtto preempt the Department from enforcing the NMAAQS by petitioning the EIB to delete the NMAAQS from the applicable requirement definition. Some ofthese sources also appealed
Title V permits that identified the NMAAQS as an applicable requirement or that required

2 The owners and sources include: TranswestemIRoswell Compressor Station, Transwestern/Thoreau Compressor Station; EI Paso ElectriclRio Grande Station; HLBrown/Bluitt Gas Plant; Frontier/ Lusk Compressor Station; Versado/Buckeye Compressor Station; VersadolEunice North Compressor Station; Versado/Saunders Gas Plant.

DIRECT TESTIMONY
- PAGE 5

### compliance plans. In response, the Department filed its own petition. Before a hearing couldbe held, the EIB stayed the petitions to allow the legislature an opportunity to resolve the dispute in
its 2003 session.
At the urging ofthese sources, the Department requested an appropriation from the legislature to study and update the NMAAQS. The NMAAQS were adopted by the EIB and approved by EPA in 1970. In 1995, the EIB repealed the NMAAQS that were obsolete. Subsequently, some Title V sources argued thatthe remaining NMAAQS, and specifically the
24-hourNOx NMAAQS, were too stringent and should be deleted. To address these arguments,
the Department conducted an extensive literature survey, which found that more than one-halfof
the reported studies supported the 24-hourNOx NMAAQS? Nonetheless, because these sources continued to argue that the NMAAQS were not valid, the Departmentrequested funding from
the legislature for amore formal study. However, the legislature did not approve the request. Beginning in May 2003 and extending through April 2005, El Paso Natural Gas Company ("EPNG") appealed to the EIB the issuance ofeleven Title V permits, disputing the applicability ofambient air quality standards. Seven ofthese EPNG sources were grandfathered.
In July 2004, the Department again requested the EIB to schedule ahearing on this issue.
Some ofthe parties that submitted Notices ofIntentto Present Technical Testimony opposing the Department included the New Mexico Oil and Gas Association ("NMOGA"), Phelps Dodge Corporation ("PD"), and Waste Management ofNew Mexico, Inc. ("WMI"). In late October 2004, EPNG approached the Departmentrequesting negotiations to settle its permit appeals.
These negotiations commenced immediately and continued until the Department finalized
settlement agreements with both EPNG and NMOGA in June 2005. Consequently, on June 6, 2005, the Department withdrew its petition for hearing. The regulatory changes proposed by the

3 The Department also found that nearly two-thirds ofthe reported studies supported the SOx NMAAQS.

DIRECT TESTIMONY
- PAGE 6

### Department in this rulemaking are based onthe concepts or specifics ofthe settlement agreement
with EPNG.
II. PROPOSED REGULATORY CHANGES
As mentioned, the Title V operating permits rule, Part 70, has been in place for over 10
years. The Department's experience over that time has led us to believe that it is necessary to
make some changes to reduce confusion and eliminate unnecessary requirements, as well as to remedy the ambient standards issue. Although there are numerous changes in the sections presented in ourproposal, most ofthem are not substantive and serve only to comply with the requirements ofthe Commission ofPublic Records rule at 1.24.10 NMAC. The following
discussion addresses the substantive changes.
A. 20.2.70.5 NMAC
The Departmentproposes to add the phrase "exceptwhere a later date is cited atthe end
ofa section" to 20.2.70.5 NMAC. The new language conforms Part 70 with the EIB's other air quality regulations, and alerts the reader that certain sections may have been revised after the
effective date ofthe regulation.
B. Applicable requirements, 20.2.70.7.E NMAC
The Departmentproposes to add areference to "Part 70 source" in the introductory paragraph of
20.2.70.7.ENMAC. The term clarifies the applicability ofthe NAAQS to Title V sources by negating arecent argumentraised by some members ofthe regulated community. The introductory paragraph currently states that the applicable requirements include "all ofthe following, as they apply to emissions units at a Part 70 source." Some members ofthe regulated community have argued that this language precluded enforcement ofNAAQS because the NAAQS are applicable to Part 70 sources, not emission units. The argument contradicts the

DIRECT TESTIMONY
- PAGE 7principle ofconstruction that aregulation should be harmonized with otherparts ofthe regulation and given an interpretation consistent with the regulatory intent. The term "emissions
unit" is defined as "any part or activity ofa stationary source that emits orhas the potential to
emit any regulated air pollutant or any [HAP]" (20.2.70.7. 

### J NMAC). The NAAQS apply to
each such part or activity ofa stationary source; ifthere is more than one part or activity, the NAAQS apply to the cumulative emissions. To eliminate any confusion on this issue and ensure
enforcement ofthe NAAQS, the Departmentproposes to clarify that the listed requirements apply to Title V sources, as well as emissionunits, as applicable.


### C. Stationary source, 20.2.70.7.AI NMAC
The Departmentproposes to clarify the definition of"stationary source" by adding the phrase "or any combination thereof' so that the definition reads that'" [s]tationary source' or
'source' means any building, structure, facility, or installation, or any combinationthereofthat
emits or may emit any regulated airpollutant or any pollutant listed under section 112(b) ofthe
Federal Act." The current definition sometimes results in confusion as to the scope ofwhat
should be included in an application for apermit. This catch-all phrase clarifies that large entities, such as national laboratories and military bases, are "stationary sources" subjectto Part 70, rather than the individual buildings, structures, facilities, and installations which comprise
them.


### D. Requirement for a construction permit, 20.2.70.201.D NMAC
In light ofrecent settlements (including the EPNG settlement) that have or will result in a significant decrease ofemissions from some ofthe largest, oldest, and least controlled industrial
facilities in New Mexico, and the availability ofother approaches for reducing emissions at the
few remaining sources for which NMAAQS compliance may still bean issue, the Department

DIRECT TESTIMONY

- PAGE 8believes that the NMAAQS does not need to be an explicit, applicable requirement underthe operating permit rule. We've retained the national ambient air quality standards as an applicable requirement for Title V sources because they are health-based. The changes we propose do not

remove the NMAAQS requirement from the Title V sources, but only change the program in
which it will apply. The NMAAQS would be applied to major sources under 20.2.72 NMAC
### Construction Permits and would be implemented in the operating permit as part ofthe incorporated construction permit. In order to achieve this goal we propose to make changes to 3
different regulations:

a. The Title V permitting rule, 20.2.70 NMAC at section 20I.D;
b. The state ambient air quality standards rule, 20.2.3 NMAC at section 9; and

c. The new source review permitting rule, 20.2.72 NMAC at section 216.


### 1. Title V permitting rule, 20.2.70 NMAC at section 201.D
The addition ofparagraph 201.D to 20.2.70 NMAC will allowNMED to ensure that
landfills and grandfathered Title V sources (those sources that have never received apermit
under either 20.2.72 NMAC (Construction Permits) or 20.2.74 NMAC (Permits

- Prevention of Significant Deterioration (PSD)) comply withthe requirements under 20.2.72 NMAC. 20.2.72
NMAC requires a modeling demonstration to show whether emissions comply with New Mexico
and National Ambient Air Quality Standards. Violation ofthese standards is addressed in
section 216 of20.2.72 NMAC. The deadline of 180 days ensures thatthe landfills and the four grandfathered Title V sources act expeditiously. The provision for the Departmentto grant an
extensionto this deadline reflects the potential problems that a source may face in trying to
determine how to achieve the required progress toward compliance and inthe coordination that
may be needed with equipment suppliers. Since May 1, 2006, when we submitted a revised

DIRECT TESTIMONY

- PAGE 9

### paragraph 201.D to the EIB, we have a berter appreciation for the impact ofthis paragraph on landfills. New Mexico has 

### 7 landfills withTitle V permits and one application in process. 4 

### All
but one have modeled for state and federal standards, have shown compliance, and have
conditions in their Title V permits to ensure compliance. Forthe one exception (Clovis), the Department agreed that its emissions were so low that no modeling was necessary. There is no

reason to have these sources obtain a construction permit, which would be required by the previous section 20.2.70.20l.D ofour proposal. Hence, the Departmentproposes the additional language in section 201.D at sub-paragraphs (2) and (3).
In new section 20l.D(l), the first sentence was in ourprevious proposal and can only apply to sources that already have a Title V permit. However, there will be new landfill sources
in the future as they get bigger and trip the threshold for applicability ofTitle V. Hence, paragraph (2) applies the requirement to obtain a construction permitto them at that future time.
For either category we want to exclude sources thatwant to model and show full compliance in
the Title V program, because most ofthe landfills have already done so. Paragraph (3)
establishes this exclusion and may also exclude any ofthe 8 other sources on the Department's
listthat can meet the exclusion requirement. Forexample, Versado told the Department that it

was in the process ofmodeling for the company's sources on the list. Ifit shows compliance
with all standards and request appropriate conditions in its Title V permits, there is no need to go through the construction permitprocess. The 60 day time in paragraph (2) allows an applicantto
submit a Title V application and request the exclusion before an NSRpermit would be due.


### 2. State ambient air quality standards rule, 20.2.3 NMAC at section 9
We need to add section 9 to 20.2.3 NMAC because 20.2.70 NMAC and the federal rule

4 CarlsbadJSand Point Landfill, Clovis Regional Landfill, Northeast New Mexico Regional Landfill, Otero/Lincoln landfill, Santa Fe Caja Del Rio Landfill, Camino Real Landfill, Rio Rancho Landfill, Sandoval County Landfill.

DIRECT TESTIMONY

- PAGE 10

### on which it was based, 40 CFR Part 70, require any regulation that is part ofthe State Implementation Plan to be an applicable requirement for a Title V source. 20.2.3 NMAC is part
ofthe New Mexico SIP. Section 9 removes the NMAAQS from the applicability requirements
for all Title V sources, butthe new language also ensures that sources that request a permit under
the construction permit rule, 20.2.72 NMAC, know that these standards must continue to be
addressed in their application. The new language also alerts Title V sources that when the NMAAQS result in conditions intheir construction permit, those conditions are applicable requirements for the Title V permit.
3. New source review permitting rule, 20.2.72 NMAC at section 216


### Section 216 of20.2.72 NMAC is changed to move sources that are causing violations
toward compliance in a way that is consistent with past practice for minor sources. The changes
in paragraphs A(1) and A(2) are clarifications ofexisting language and do not change the**~equirements.** 

### Paragraph A(3) is added to address the Title V sources that would need to apply
for a construction permit. I want to note that since May 1, 2006, when we submitted this proposed paragraph to the EIB, we have added the words 

### "orNew Mexico" to include the state
ambient air quality standards. Failure to include them was an oversight at the time. This paragraph also addresses all othermajor and minor sources that may be causing a violation of standards, but do not submit an application that falls under A(l) or A(2), such as the remaining
four Title V sources that do have construction permits but haven't modeled. It 

### is the Department's intention that any such minor or major source would have to comply with the new paragraph C upon submittal ofany permit revision under section 219 of20.2.72 NMAC. New paragraph C establishes a way to achieve progress toward compliance and formalizes the concept
of20% reduction in ambient impactthat for years has been expressed in our written modeling

DIRECT TESTIMONY
- PAGE 11

### guidance to permit applicants. Industry has accepted this concept in the past even though it was
not a regulatory requirement. The fonnula for detennining the projected source impactbased on

areduction of20% and the reference to 20.2.79.117 NMAC serve to provide consistency among
different sources and cases. 

### E. Deletion oftransition schedule, 20.2.7.300.B(4) NMAC
This section established the schedule to submit applications for existing sources subject

to the Title V rule at the time ofits approval. All such applications were submitted; consequently, this language is no longer needed or relevant and should be removed.
F. Content ofpermit application, 20.2.70.300.D(5)(g) NMAC
One ofthe items that the currentregulation requires as part ofthe Title V pennit application is an operational plan. The Department proposes to revise 20.2.70.300.D(5)(g)
NMAC to allow discretion in requiring applicants to submit operational plans for startup, shutdown, and emergencies. The federal rule, 40 CFR Part 70, does notrequire the submittal of operational plans in applications. Title V sources should comply with the tenns and conditions
oftheir permits at all times, including during startup and shutdown, and should provide the same notification ofviolations as required at all othertimes. The Department has found thatthe range offacilities subject to the operational plan requirement is too broad to allow us to provide practical, generally applicable guidance. Also, it is very difficult to forecast and address all the possible circumstances that could cause a malfunction or emergency. As a result, the operational plans have varied widely in quality and enforceability. In practice, emissions may be minimized
better by taking steps that are different from those set forth in aplan that may have been
submitted several years ago. Operational plans for simple equipment, such as engines, don't
appear to provide much value; whereas, such aplan for complex equipment such as sulfur

DIRECT TESTIMONY
- PAGE 12recovery units orpower plants is more appropriate and meaningful.
G. Content ofpermit application, 20.2.7.300.DClO)(a) NMAC
The original sectionD(1 0) of20.2.7 NMAC established a one-time NAAQS modeling requirement for existing sources subjectto the Title V rule at the time ofits approval. Consequently, it is no longer needed orrelevant and should be removed.
With the new D(lO)(a) the Departmentproposes to establish the criteria on which Title V

sources should base any certification ofcompliance with the NAAQS for new and renewal Title
V applications. A key element ofthe Title V program is the requirement for responsible officials

to certify the truth, accuracy, and completeness ofany document submitted to the permitting

agency. Under the CAA, certification is a minimum requirement for state Title V programs. Accordingly, Part 70 requires major sources to certify their compliance with all applicable requirements. The Department's proposal clarifies that certifications ofcompliance for new

sources will be based on the modeling submitted with a previous construction permit application.
This approach is logical since any new emissions unit or source must obtain a construction permit and perform modeling. For sources renewing their permit, the Departmentproposes that
certification be based on compliance with the terms and conditions ofthe current operating permit. Again, this approach is logical since terms and conditions ofconstruction permits are brought into the most current operating permit. This proposed change should only address the NAAQS since they are intended to be the only ambient standard that is directly applicable to a Title V source. Nevertheless, certification with permit conditions inherently reflects compliance
with the NMAAQS, because some conditions ofconstruction permits are created to ensure compliance with these standards.

DIRECT TESTIMONY
- PAGE 13

### H. Permit content, 20.2.70.302E(3) NMAC
The Department proposes to revise section 302.E.3 of20.2.270 NMAC to clarify that
annual compliance certifications are based on compliance with the terms and conditions in the permit. The changes in words here do notreally change the requirement; they conform the language ofthe changed sentenceto the federal language at40 CFR § 

### 70.6(c)(5). In 1993, the Department's deviation from the federal language created confusion about what applicable requirements the annual compliance certification actually addresses. Responsible officials have
been reluctantto sign certifications ofcompliance that generically refer to all applicable requirements relevant to the source. Although the source mustprovide alist ofapplicable requirements in its application, it is the Department's responsibility to identify all applicable requirements in the operating permit; ifwe make amistake, we can re-open the permit at any time to fix the problem. Nor does this regulatory change allow a source to avoid accountability
for complying with all applicable requirements ifthey are not identified in the permit. The Department would take enforcement action ifa source failed to comply with an applicable requirement even ifit was not listed in the permit.
I. 

### Emergency provision, 20.2.70.304.D NMAC
The Departmentproposes to revise this sectionto conform ourrule to the federal rule language at 40 CFR § 

### 70.6(g)(5). Currently, sources permitted under 20.2.70 NMAC have some permit conditions that are subjectto 20.2.7 NMAC

- Excess emissions during malfunction,
startup, shutdown, orscheduledmaintenance 

### and other conditions that are not, creating
considerable confusion among both industry and the agency. Regulation 20.2.7 NMAC applies

to the violation ofany part ofthe SIP and to violation ofapermit issued under the construction permits rule, but20.2.7 NMAC does not apply to any federal requirement found in the Code of

DIRECT TESTIMONY

- PAGE 14

### Federal Regulations ("CFR"), which contains its own provisions for dealing with violations of
the CFR. When these federal and state applicable requirements are incorporated in an operating permit, they bring with them their own emergency and upsetprovisions. The operating permit
rule does allow new conditions to be created to ensure compliance with these otherrequirements,
ifthese requirements do not already include adequate monitoring provisions to ensure compliance. Yet, the existing language at section 304.D does not allow 20.2.7 NMAC to apply

to these new conditions created under the authority of20.2.70 NMAC, resulting in confusion

over how violation ofany particularpermit condition should be handled by the permittee. There
is no real benefitto having this distinction. With this revision, the rule will require Title V

sources to report violations ofthe terms and conditions in their permits and claim affirmative
defenses for such violations in a mannerconsistent with sources pennitted under 20.2.72 NMAC.


### III. CONCLUSION
After 12 years ofexperience withthe operating permits program, the Department requests the BIB to adopt these proposals. By making these clarifications and changes, the EIB
will provide a practical and reasonable way for major and minor sources to fulfill their obligation

to comply with the NAAQS and NMAAQS. By focusing on a small group ofsources that have
been able to avoid provisions ofour rules that would cause demonstration ofcompliance with
ambient standards, the EIB can prevent orreduce emission impacts that are harmful to public
health and the environment, and obtain emission reductions from some ofthe oldest and dirtiest
facilities in New Mexico. Additionally, the EIB can make changes that will reduce the bureaucracy and potential for confusion in conducting the airpermitting program without reducing the effectiveness ofthe program.

DIRECT TESTIMONY
- PAGE 15

### The Department proposes that the Board adopt the following revisions to 20.2.70 NMAC

- Operating Permits.
20.2.70.5 section. EFFECTIVE DATE: 11/30/95, except where a later date is cited at the end ofa

20.2.70.7 DEFINITIONS: In addition to the terms defined in 20.2.2 NMAC (Definitions), as used in this Part the following definitions shall apply. [-:-] A. "Acid rain source" has the meaning given to "affected source" in the regulations promulgated under title IV ofthe Federal Act, and includes all sources subjectto title IV ofthe Federal Act. B. 

### "Affected programs" means all**[.g]~tates,** 

### local air pollution control programs, and Indian [+J1ribes and [P]£ueblos, that are within 50 miles ofthe source. 

### C. "Air pollutant" means an air pollution agent or combination ofsuch agents, including any physical, chemical, biological, radioactive (including source material, special nuclearmaterial, and byproductmaterial) substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation ofany air pollutant, to the extent the Administrator has identified such precursor or precursors for the particular purpose for which the term "airpollutant" is used. This excludes water vapor, nitrogen (N2), carbon dioxide (C02), oxygen (02), methane and ethane. D. "Air pollution control equipment" means any device, equipment, process or combination thereof, the operation ofwhich would limit, capture, reduce, confine, or otherwise control regulated air pollutants or convert for the purposes ofcontrol any regulated air pollutant to another form, another chemical or another physical state. This includes, but is not limited to, sulfurrecovery units, acid plants, baghouses, precipitators, scrubbers, cyclones, water sprays, enclosures, catalytic converters, and steam or water injection. 

### E. "Applicable requirement" means all ofthe following, as they apply to a Part 70 source orto an emissions unit[s] at a Part 70 source (including requirements that have been promulgated or approved by the Board orUS EPA through rulemaking at the time ofpermit issuance but have future-effective compliance dates)[-:-l. (1) 

### Any standard or otherrequirement provided for in the New Mexico state implementationplan approved by US EPA, or promulgated by US EPA through rulemaking, under title I ofthe Federal Act to implement the relevant requirements ofthe Federal Act, including any revisions to that plan promulgated in 40 CFR, Part**52[~1.** 

### (2) Any term or condition ofany preconstruction permit issued pursuantto regulations approved orpromulgated through rulemaking under title I, including parts C orD, of the Federal Act, unless thatterm or condition is determined by the Departmentto be no longer**pertinent[~l.** (3) 

### Any standard or other requirement under section 111 ofthe Federal Act, including section**111(d)[~1.** 

### (4) Any standard or other requirement under section 112 ofthe Federal Act, including any requirement concerning accident prevention under section 112(r)(7) ofthe Federal Act[;1. (5) Any standard or other requirement ofthe acid rain program under title IV of the Federal Act orthe regulations promulgated thereunder[;l.

20.2.70 NMAC Proposed Revisions NMED EXHIBIT C-1 Page 1 of 18

### (6) Any requirements established pursuant to section 504(b) or section 114(a)(3) ofthe Federal**Act[-;-]~** 

### (7) Any standard or otherrequirement governing solid waste incineration under section 129 ofthe Federal Act[-;-l (8) Any standard or other requirement for consumer and commercial products under section l83(e) ofthe Federal Act[-;-L (9) Any standard or otherrequirement for tank vessels under section l83(f) ofthe Federal Act[-;-L (10) Any standard or other requirement ofthe regulations promulgated to protect stratospheric ozone under title VI ofthe Federal Act, unless the Administrator has determined that such requirements need notbe contained in a title V**permit[-;-]~** 

### (11) Any national ambient air quality standard[-;-L (12) Any increment or visibility requirement under part C oftitle I ofthe Federal Act, but only as it would apply to temporary sources permitted pursuantto section 504(e) ofthe Federal Act[-;--andL (13) Any regulation adopted by the Board pursuantto the New Mexico Air Quality Control Act, section 74-2-5(B) NMSA 1978. 

### F. "CFR" means the Code ofFederal Regulations. G. 

### "Draft permit" means a version ofapermit which the Department offers for public participation or affected programreview. H. 

### "Emission limitation" means arequirement established by US EPA, the Board, orthe [9]gepartment, that limits the quantity, rate or concentration, or combination thereof, of emissions ofregulated air pollutants on a continuous basis, including any requirements relating to the operation or maintenance ofa source to assure continuous reduction. I. 

### "Emissions allowable under the permit" means: (1) any state or federally enforceable permit term or condition that establishes an emission limit (including a work practice standard) requested by the applicant and approved by the [9]gepartment or determined at issuance orrenewal to be required by an applicable requirement; or (2) any federally enforceable emissions cap that the permittee has assumed to avoid an applicable requirementto which the source would otherwise be subject. 

### J. "Emissions unit" means any part or activity ofa stationary source that emits or has the potential to emit any regulated air pollutant or any air pollutant listed pursuantto section 112(b) ofthe Federal Act. This term is not meant to alter or affect the definition ofthe term "unit" for purposes oftitle IV ofthe Federal Act. K. 

### Federally enforceable" means all limitations and conditions which are enforceable by the Administrator, including those requirements developed pursuantto 40 CFR Parts 60 and 61, requirements within the New Mexico State Implementation Plan, and any permit requirements established pursuantto 40 CFR 52.21 orunder regulations approved pursuantto 40 CFR Part 51, Subpart I, including 40 CFR 51.165 and 40 CFR 51.166. 

### L. "Final permit" means the version ofan operating permit issued by the [9]gepartmentthathas met all review requirements of20.2.70.400 NMAC

- 20.2.70.499 NMAC. M. 

### "Fugitive emissions" are those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally-equivalent opening.

20.2.70 NMAC Proposed Revisions Page 2 of 18

### N. "General permit" means an operating permit that meets the requirements of 20.2.70.303 NMAC. 

### O. "Hazardous air pollutant" means an air contaminantthat has been classified as a hazardous air pollutant pursuant to the Federal Act. 

### P. "Insignificant activities" means those activities which have been listed by the [G]Qepartment and approved by the Administrator as insignificant on the basis ofsize, emissions orproduction rate. Q. 

### "Major source" means any stationary source (or any group ofstationary sources that are located on one or more contiguous or adjacentproperties, and are under common control ofthe same person(s» in which all ofthe pollutant emitting activities at such source belong to the same Major Group (i.e., all have the same two-digit code), as described in the Standard Industrial Classification Manual, 1987, and that is described in paragraphs (1), (2) or (3) below. (1) A major source under section 112 ofthe Federal Act, which is defined as the following. [-;-] (a) Forpollutants otherthan radionuclides, any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit, in the aggregate, 10 tons or more per year ofany hazardous air pollutant which has been listed pursuant to section 112 (b) ofthe Federal Act, 25 or more tons per year of any combination ofsuch hazardous air pollutants (including any major source offugitive emissions ofany such pollutant, as determined by rule by the Administrator), or such lesser quantity as the Administrator may establishby rule. Notwithstanding the preceding sentence, hazardous emissions from any oil or gas exploration or production well (with its associated equipment) and hazardous emissions from any pipeline compressor or pump station shall not be aggregated with hazardous emissions from other similar units, whether or not such units are in a contiguous area or under common control, to determine whether such units or stations are major sources. (b) For radionuclides, "major source" shall have the meaning specified by the Administratorby rule. (2) A major stationary source ofair pollutants that directly emits or has the potential to emit, 100 or more tons per year ofany air pollutant (including any major source of fugitive emissions ofany such pollutant, as determined by rule by the Administrator). The fugitive emissions ofa stationary source shall not be considered in determining whether it is a major stationary source for the purposes ofthis paragraph, unless the source belongs to one of the following categories ofstationary sources.:.H (a) Coal cleaning plants (with thermal dryers)[t] (b) Kraft pulp mills[t] (c) Portland cementplants[t] (d) Primary zinc smelters[t] (e) Iron and steel mills[t] (f) Primary aluminum ore reduction plants[t] (g) Primary copper smelters[t] (h) Municipal incinerators capable ofcharging more than 250 tons ofrefuse per day[t] (i) Hydrofluoric, sulfuric, or nitric acid plants[t] (j) Petroleum refineries[t] (k) Lime plants[t]

20.2.70 NMAC Proposed Revisions Page 3 of18(I) 

### Phosphate rock processing**plants[~]** 

### (m) Coke oven**batteries[~]** 

### (n) Sulfurrecovery**plants[~]** (0) 

### Carbon blackplants (furnace**process)[~]** 

### (p) Primary lead**smelters[~]** 

### (q) Fuel conversion**plant[~]** 

### (r) Sintering plants[t] (s) Secondary metal production plants[t] (t) Chemical process plants[t] (u) Fossil-fuel boilers (or combinationthereof) totaling more than 250 million British thermal units perhour heat input[t] (v) Petroleum storage and transfer units with atotal storage capacity exceeding 300,000 barrels[t] (w) Taconite ore processing plants[t] (x) Glass fiber processing plants[t] (y) Charcoal production**plants[~]** 

### (z) Fossil fuel-fired steam electric plants ofmore than 250 million British thermal units per hour heat input[t] (aa) Any other stationary source category, which as ofAugust 7, 1980 is being regulated under section III or 112 ofthe Federal Act. (3) A major stationary source as defined in part D oftitle I ofthe Federal Act, including: (a) [¥]for ozone non-attainment areas, sources with the potential to emit 100 tons or more per year ofvolatile organic compounds or nitrogen oxides in areas classified as "marginal" or "moderate," 50 tons or more per year in areas classified as "serious," 25 tons or more per year in areas classified as "severe," and 10 tons or more per year in areas classified as "extreme"; except thatthe references in this paragraph to 100,50,25, and 10 tons peryear of nitrogen oxides shall not apply with respect to any source for which the Administratorhas made a finding, under section 182(f)(1) or (2) ofthe Federal Act, that requirements under section 182(f) ofthe Federal Act do not apply; (b) [¥]for ozone transport regions established pursuantto section 184 ofthe Federal Act, sources with the potential to emit 50 tons or more per year ofvolatile organic compounds; (c) [¥]for carbon monoxide non-attainment areas (1) 

### that are classified as "serious," and (2) in which stationary sources contribute significantly to carbon monoxide levels as determined underrules issued by the Administrator, sources with the potential to emit 50 tons or more per year ofcarbon monoxide; and (d) [¥]forparticulate matter (PM10) non-attainment areas classified as "serious," sources with the potential to emit 70 tons or more per year ofPM10. R. "Operating [l!].I2ermit" or "permit" (unless the context suggests otherwise) means any permit or group ofpermits covering a source that is issued, renewed, modified or revised pursuant to this Part. S. "Operator" means the person orpersons responsible for the overall operation of a facility. T. "Owner" means the person or persons who 

### own a facility or part ofa facility.

20.2.70 NMAC Proposed Revisions Page 4 of 18

# u. "Part" means an air quality control regulation under Title 20, Chapter 2 ofthe New Mexico Administrative Code, unless otherwise noted; as adopted or amended by the Board. 

# v. "Part 70 source" means any source subjectto the permitting requirements ofthis Part, as provided in 20.2.70.200 NMAC

- 20.2.70.299 NMAC. 

### W. "Permit modification" means a revision to an operating permitthat meets the requirements ofsignificantpermit modifications, minorpermit modifications, or administrative permit amendments, as defined in 20.2.70.404 NMAC. 

### X. "Permittee" means the owner, operator orresponsible official at a permitted Part 70 source, as identified in any permit application or modification. 

### Y. "Portable [Shource" means any plantthat is mounted on any chassis or skids and which can be moved by the application ofa lifting orpulling force. In addition, there shall be no cable, chain, turnbuckle, bolt or other means (except electrical connections) by which any piece ofequipment is attached or clamped to any anchor, slab, or structure, including bedrock, that mustbe removed priorto the application ofa lifting orpulling force for the purpose of transporting the unit. Portable sources may include sand and gravel plants, rock crushers, asphalt plants and concrete batch plants which meet this criteria. 

## z. "Potential to emit" means the maximum capacity ofa stationary source to emit any airpollutant under its physical and operational design. Any physical or operational limitation on the capacity ofa source to emit an air pollutant, including air pollution control equipment and restrictions on hours ofoperation or on the type oramount ofmaterial combusted, stored, orprocessed, shall be treated as part ofits design ifthe limitation is federally enforceable. The potential to emit for nitrogen dioxide shall be based ontotal oxides ofnitrogen. 

### AA. "Proposed permit" means the version ofapermit that the [.Q]gepartment proposes to issue and forwards to the Administrator for review in compliance with 20.2.70.402 NMAC. 

### AB. "Regulated air pollutant" means the following: (1) 

### Nitrogen oxides, total suspended particulate matter, or any volatile organic compounds;(2) Any pollutant for which a national ambient air quality standard has been promulgated; (3) Any pollutantthat is subject to any standard promulgated under section 111 of the Federal Act; (4) Any Class I or II substance subjectto any standard promulgated under or established by title VI ofthe Federal Act; or (5) Any pollutant subjectto a standard promulgated under section 112 or any other requirements established under section 112 ofthe Federal Act, including sections 112(g), 0), and (r), including the following; (a) any pollutant subjectto requirements under section 1120) ofthe Federal Act. Ifthe Administrator fails to promUlgate a standard by the date established pursuantto section 112(e) ofthe Federal Act, any pollutant for which a subject source would be amajor shall be consideredto be regulated onthe date 18 months after the applicable date established pursuantto section 112(e) ofthe Federal Act; and (b) any pollutantfor which the requirements ofsection 112(g)(2) ofthe Federal Act have been met, but only with respect to the individual source subjectto a section 112(g)(2) requirement. 

### AC. "Renewal" means the process by which a permit is reissued at the end ofits term.

20.2.70 NMAC Proposed Revisions Page 5 of 18

### AD. "Responsible official" means one ofthe following: (1) 

### For a corporation: apresident, secretary, treasurer, or vice-president ofthe corporation in charge ofaprincipal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person ifthe representative is responsible for the overall operation ofone or more manufacturing, production, or operating facilities applying for or subjectto apermit and either a) the facilities employ more than 250 persons orhave gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars), orb) the delegation ofauthority to such representative is approved in advance by the [&]gepartment. (2) For apartnership or sole proprietorship: a general partner orthe proprietor, respectively. (3) 

### For a municipality, state, federal or otherpublic agency: either a principal executive officer orranking elected official. Forthe purposes ofthis Part, aprincipal executive officer ofa federal agency includes the chiefexecutive officerhaving responsibility for the overall operations ofaprincipal geographic unit ofthe agency (e.g., a Regional Administrator of US 

### EPA). (4) For an acid rain source: the designated representative (as defined in section 402(26) ofthe Federal Act) in so far as actions, standards, requirements, orprohibitions under title IV ofthe Federal Act orthe regulations promulgated thereunder are concerned, and for any other purposes under40 CFR, Part 70. 

### AE. "Section S02(b)(10) changes" are changes that contravene an express permit term. Such changes do not include changes that would violate applicable requirements or contravene permitterms and conditions that are monitoring (including test methods), recordkeeping, reporting, or compliance certification requirements. 

### AF. "Shutdown" means the cessation ofoperation ofany air pollution control equipment, process equipment or process for any purpose. 

### AG. "Solid waste incineration unit" means a distinct operating unit ofany facility which combusts any solid waste material from commercial or industrial establishments or the general public (including single and multiple residences, hotels, and motels). The term "solid waste incineration unit" does not include: (1) 

### [I]!ncinerators or other units required to have a permit under section 3005 of the federal Solid Waste Disposal Act; (2) [M]materials recovery facilities (including primary or secondary smelters) which combust waste for the primary purpose ofrecovering metals; (3) 

### [Q]gualifying small powerproduction facilities, as defined in section 3(17)(C) ofthe Federal Power Act (16 U.S.C. 796(17)(C), or qualifying cogeneration facilities, as defined in section 3(18)(B) ofthe Federal Power Act (16 U.S.C. 796(18)(B», which bum homogeneous waste (such as units which bum tires or used oil, but not including refuse-derived fuel) for the production ofelectric energy or in the case ofqualifying cogeneration facilities which bum homogeneous waste for the production ofelectric energy and steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes; or (4) [A]£!ir curtain incinerators, provided that such incinerators only bumwood wastes, yard wastes and clean lumber and that such air curtain incinerators comply with opacity limitations established by the Administratorby rule.

20.2.70 NMAC Proposed Revisions Page 6 of 18AH. "Startup" 

### means the setting into operation ofany air pollution control equipment, process equipment or process for any purpose. AI. "Stationary source" 

### or "source" 

### means any building, structure, facility, or installation. or any combination thereofthat emits or may emit any regulated air pollutant or any pollutantlisted under section 112(b) ofthe Federal Act. AJ. "Subsidiary" 

### means abusiness 'concern which is owned or controlled by, or is a partner of, the applicant orpermittee. AK. "Temporary**[S]~ource"** 

### means any plantthat is situated in one location for a period ofless than one year, after which it will be dismantled and removed from its current site or relocated to anew site. A temporary source may be semi-permanent, which means that is does not have to meetthe requirements ofaportable source. Temporary sources may include well head compressors which meet this criteria. AL. "Title I [M]modification" 

### means any modification under sections 111 or 112 of the Federal Act and any physical change or change in method ofoperations that is subjectto the preconstruction regulations promulgated under Parts C and D ofthe Federal Act.
20.2.70.201 REQUIREMENT FORA PERMIT: A. 

### A Part 70 source may operate afterthe time that it is required to submit atimely and complete application under this Part only if: (1) 

### the source is in compliance with an operating permit issued by the Department or EPA; or (2) 

### atimely permit (including permit renewal) application has been submitted consistent with 20.2.70.300 NMAC. The ability to operate under these circumstances shall cease ifthe applicant fails to submit by the deadline specified in writing by the Department any additional information identified as being needed to process the application. B. 

### Revocation ortermination ofapelTIlit by the Departmentterminates the permittee's right to operate. 

### C. The submittal ofa complete operating permit application shallnot protect any source from any applicable requirement, including any requirement that the source have a preconstruction permit under title I ofthe Federal Act or state regulations. D, 

### Requirement for permitunder 20.2.72 NMAC. (1) 

### Part 70 sources that have an operating permit and do not have a permit issued under 20.2.72 NMAC or 20.2.74 NMAC shall submit a complete application for apermit under 20.2.72 NMAC within 180 days of[EFFECTIVE DATE OF THIS SUBSECTION

- xx/xx/06l. 

### The department may extend this deadline on a case-by-case basis based on a showing ofgood cause. (2) 

### Part 70 sources that do not have an operating permit or apermitunder 20.2.72 NMAC upon the effective date ofthis subsection shall submit an application for a permit under 20.2.72 NMAC within 60 days after submittal ofan application for an operating permit. (3) 

### Paragraphs 1 and 2 ofthis subsection shall not apply to sources that have demonstrated compliance with boththe national and state ambient air quality standards through dispersion modeling approved by the department and thathave requested incorporation of conditions in their operating permitto ensure compliance with these standards.
20.2.70.300 PERlVIIT APPLICATIONS:

20.2.70 NMAC Proposed Revisions Page 7 of 18

.A. Duty to**apply[;-]~** For each Part 70 source, the owner or operator shall submit a timely and complete permit application in accordance with this Part. E. Timely application. A timely application for a source applying for a permit under this Part is: (1) [F]for first time applications, one that is submitted within twelve (12) months after the source commences operation as a Part 70 source, or as established in the transition schedule outlined in paragraph (4) ofsubsection B of20.2.70.300 NMAC; (2) [:F]for purposes ofpermitrenewal, one that is submitted at least twelve (12) months prior to the date ofpermit expiration[;L (3) [F]for the acid rain portion ofpermit applications for initial Phase II acid rain sources under title IV ofthe Federal Act, by January 1, 1996 for sulfur dioxide, and by January 1,1998 for nitrogen**oxides[;]~** (4) Transition schedule. ,tIL timely application for a Part 70 source which is in operation on or before December 19, 1995 is one that is submitted: (ft) :For sources, exceptnatural gas processing plants, yNhich hm'e been issued apermit, including apermit modification, pursuant to 20.2.72 NMAC, 20.2.74 N!>.4AC, or 20.2.79 NMAC on or after January 1, 1987, by February 2, 1995, e)ccept that persons owning more than one source in this category may submit applications for halfoftheir sources by February 2, 1995 and submit the'remaining applications by March 19, 1995; (b) For sources, except natural gas processing plants, ,,'!'hich ",,,ere issued a permit, including apermit modification, pursuant to 20.2.72 NMAC, 20.2.74 NMAC, or 20.2.79 NMAC prior to January 1, 1987, by June 19,1995; (e) For all other sources, by December 19, 1995. C. Completeness of[A].e,pplication[.;-L (1) To be deemed complete, an application must provide all information required pursuant to subsection D of20.2.70.300 NMAC, except that applications for permit modifications need supply such information only ifit is related to the proposed change. (2) If, while processing an application, regardless ofwhether it has been determined or deemed to be complete, the [D]gepartment determines that additional information is necessary to evaluate ortake final action on that application, it may request such information in writing and set a reasonable deadline for a response. (3) Any applicant who fails to submit any relevant facts orwho has submitted incorrect information in apermit application or in a supplemental submittal shall, upon becoming aware ofsuch failure or incorrect submittal, promptly submit such supplementary facts or corrected information. In addition, an applicant shall provide further information as necessary to address any requirements that become applicable to the source after the date it filed a complete application but prior to release ofa draftpermit. (4) The applicant's ability to operate without apermit, as set forth in paragraph (2) ofsubsection A of20.2.70.201 NMAC, shall be in effect from the date a timely application is submitted until the final permit is issued or disapproved, provided that the applicant adequately submits any requested additional information by the deadline specified by the [D]gepartment. D. Content of[A].e:pplication[-:L Any person seeking apermit underthis Part shall do so by filing a written application with the [D]Qepartment. The applicant shall submitthree (3) copies ofthe permit application, ormore, as requested by the [D]4epartment. An applicant may not omit information needed to determine the applicability of, or to impose, any applicable requirement, or to evaluate the fee amount required under 20.2.71 NMAC (Operating Permit

20.2.70 NMAC Proposed Revisions Page 8 of 18Emission Fees). Fugitive emissions shall be included in the permit application inthe same manner as stack emissions, regardless ofwhether the source category in question is included in the list ofsources contained in the definition ofmajor source. All applications shall[·'-J meet the following requirements. (1) Be made on forms furnished by the [D]gepartment, which for the acid rain portions ofpermit applications and compliance plans shall be on nationally-standardized forms to the extentrequired by regulations promulgated under title IV ofthe Federal**Act[~L** (2) State the company's name and address (and, ifdifferent, plant name and address), together with the names and addresses ofthe owner(s), responsible official and the operator ofthe source, any subsidiaries orparent companies, the company's state of incorporation orprincipal registration to do business and corporate orpartnership relationship to otherpermittees subjectto this Part, and the telephone numbers and names ofthe owners' agent(s) and the site contact(s) familiar with plant**operations[~L** . (3) State the date ofthe**application[~l.** (4) Include a description ofthe source's processes and products (by Standard Industrial Classification Code) including any associated with alternative scenarios identified by the applicant, and a map, such as the 7.5 minute Topographic Quadrangle map published by the United States Geological Surveyorthe most detailed map available showing the exact location ofthe source. The location shall be identified by latitude and longitude orby UTM**coordinates[~l.** (5) For all emissions ofall airpollutants for which the source is major and all emissions ofregulated air pollutants, provide all emissions information, calculations and computations for the source and for each emissions unit, except for insignificant activities (as defined in 20.2.70.7 NMAC). This shall include: (a)**[A]~** process flow sheet ofall components ofthe facility which would be involved in routine operations and emissions; (b) [I]identification and description ofall emissions points in sufficient detail to establish the basis for fees and applicability ofrequirements ofthe state and Federal Acts; (c)**[g]~missions** rates intons per year, pounds per hour and in such terms as are necessary to establish compliance consistent with the applicable standard reference test method; (d)**[S]~pecific** information such as that regarding fuels, fuel use, raw materials, orproduction rates, to the extent it is needed to determine orregulate emissions; (e) [I]identification and full description, including all calculations and the basis for all control efficiencies presented, ofair pollution control equipment and compliance monitoring devices or activities;

. (f) [+]!he maximum and standard operating schedules ofthe source, as well as any workpractice standards or limitations on source operation which affect emissions of regulated pollutants; (g) [Afi]ifreguested by the department an operational plan defining the measures to be taken to mitigate source emissions during startups, shutdowns and emergencies; (h) [G]Qther relevant information as the [.Q]gepartment may reasonably require or which are required by any applicable requirements (including information related to stackheight limitations developed pursuant to section 123 ofthe Federal Act); and

20.2.70 NMAC Proposed Revisions Page 9 of 18(i) 

### [F]for each alternative operating scenario identified by the applicant, all ofthe information required in subparagraphs (a) through (h) above, as well as additional information determined to be necessary by the [f)]gepartmentto define such alternative operating**scenarios[~l.** (6) 

### Provide a list ofinsignificant activities (as defined in 20.2.70.7 NMAC) atthe source, their emissions, to the extent required by the [f)]gepartment, and any information necessary to determine applicable requirements[tl. (7) 

### Provide a citation and description ofall applicable airpollution control requirements, including: (a)**[g]~ufficient** 

### information relatedto the emissions ofregulated air pollutants to verify the requirements that are applicable to the source; and (b)**[A]~** 

### description oforreference to any applicable test method for determining compliance 

### with each applicable requirement[tl. (8) 

### Provide an explanation ofany proposed exemptions from otherwise applicable requirements[tl. (9) 

### Provide other specific information thatmay be necessary to implement and enforce other requirements ofthe state or Federal Acts orto determine the applicability ofsuch requirements, including information necessary to collect any permit fees owed under 20.2.71 NMAC (Operating PermitEmission**Fees)[~l.** [(10) 

### For applications which are required underthe transition schedule in paragraph (4) ofsubsection B of20.2.70.300 NM/\C, include a dispersion modeling analysis, using US EPA approved models and procedures, shovling ",'hether emissions from the source v,'Ould cause air pollutant concentrations in excess ofany national ambient air quality standard. Airpollutants which are not emitted in significant (as defined in 40 CFR 52.21 (b)(23)(i» amounts during routine operations need not be modeled. (0) 

### This requirement shall not apply to the following: (i) 

### A Part 70 source issued apermitunder 20.2.72 NMAC, 20.2.74 }J},4AC, 20.2.79 NMAC after January 1,1986; or (ii) 

### A Part 70 source subjectto 20.2.14 NMP..G, 20.2.16 NMAC, 20.2.19 NMAC, 20.2.31 NMAC, 20.2.32 NJ>.1AC ifno physical or operational modifications that have resulted in increased particulate matter, sulfur dimcide, or nitrogen oxide emissions have occurred since the time modeling was performed for that facility as part ofrevisions to those regulations. (b) 

### The Department may waive modeling 'Nith respect to ozone ifthe Department determines that emissions from the source are not likely to cause ozone concentrations in excess ofthe national ambient air quality standard.] 

## [fl-BH1.ill Provide certification ofcompliance, including[.;.] all ofthe following. (a) 

### A certification, by aresponsible official consistent with subsection E of 20.2.70.300 NMAC, ofthe source's compliance status for each applicable requirement. For national ambient air quality standards, certifications shall be based on the following. (i) For first time applications, this certification shall be based on modeling submitted with the application for apermit under 20.2.72 NMAC. (ii) For permitrenewal applications, this certification shall be based on compliance with the relevant terms and conditions ofthe current operating permit. (b) 

### A statement ofmethods used for determining compliance, including a description ofmonitoring, recordkeeping, and reporting requirements and test**methods[t]~**

20.2.70 NMAC Proposed Revisions Page 10 of 18

### (c) A statementthat the source will continue to be in compliance with applicable requirements for which it is in compliance, and will, in a timely manner or at such schedule expressly required by the applicable requirement, meet additional applicable requirements thatbecome effective during the permit termht (d) A schedule for submission ofcompliance certifications during the permit term, to be submitted no less frequently than annually, ormore frequently ifspecified by the underlying applicable requirement orby the [f)]gepartment**[~t** 

### (e) A statement indicating the source's compliance status with any enhanced monitoring and compliance certification requirements ofthe Federal Act.**[~]f.!!}** 

### For sources that are notin compliance with all applicable requirements at the time ofpermit application, provide a compliance plan that contains.;. all ofthe following. (a) A description ofthe compliance status ofthe source with respect to all applicable**requirements[~t** 

### (b) A narrative description ofhow the source will achieve compliance with such requirements for which it is not in**compliance[~]~** 

### (c) A schedule ofremedial measures, including an enforceable sequence of actions with milestones, leading to compliance with such applicable requirements. The schedule ofcompliance shall be at least as stringent as that contained in any consent decree or administrative orderto which the source is subject, and the obligations ofany consent decree or administrative order shall notbe in any way diminished by the schedule ofcompliance. Any such schedule ofcompliance shall be supplemental to, and shall notprohibit the [f)]gepartment from taking any enforcement action for noncompliance with, the applicable requirements on which it is**based[~t** 

### (d) A schedule for submission ofcertified progress reports no less frequently than every six (6)**months[~t** 

### (e) Forthe portion ofeach acid rain source subjectto the acid rain provisions oftitle IV ofthe Federal Act, the compliance plan contentrequirements specified in this paragraph, except as specifically supersededby regulations promulgated undertitle IV ofthe Federal Act with regard to the schedule and methodes) the source will use to achieve compliance with the acid rain emissions limitations. E. Certification[.;.t Any document, including any application form, report, or compliance certification, submittedpursuantto this Part shall contain certificationby a responsible official oftruth, accuracy, and completeness. This certification and any other certificationrequired under this Part shall state that, based on information and beliefformed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.
20.2.70.302 PERMIT 

### CONTENT: A. Permit [G].£onditions[.;.t (1) The [f)]gepartment shall specify conditions upon apermit, including emission limitations and sufficient operational requirements and limitations, to assure compliance with all applicable requirements at the time ofpermit issuance or as specified in the approved schedule of compliance. The permit shall: (a) [F]formajor sources, include all applicable requirements for all relevant emissions units in the major source.

20.2.70 NMAC Proposed Revisions Page 11 of 18(b) [F]for any non-major source subjectto 20.2.70.200 NMAC20.2.70.299 NMAC, include all applicable requirements which apply to emissions units that cause the source to be subjectto this Part. (c)**[g]~pecify** and reference the origin ofand authority for each term or condition, and identify any difference in form as compared to the applicable requirement upon which the term or condition is based; (d) [I]include a severability clause to ensure the continued validity ofthe various permitrequirements in the event ofa challenge to any portions ofthe permit; (e) [I]include aprovision to ensure that the permittee pays fees to the [Plgepartment consistent with the fee schedule in 20.2.71 NMAC (Operating Permit Emission Fees); and (1) [F]forpurposes ofthe permit shield, identify any requirement specifically identified in the permit application or significant pennit modification that the [P]gepartment has determined is not applicable to the source, and state the basis for any such determination. (2) Each permit issued shall, additionally, include provisions stating 

### [tfiat.;.] the following. (a) The permittee shall comply with all terms and conditions ofthe permit. Any permit noncompliance is grounds for enforcement action. In addition, noncompliance with federally enforceable permit conditions constitutes aviolation ofthe Federal Act[t].:. (b) It shall not be a defense for apermittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions ofthe permit[tL (c) The permit may be modified, reopened and revised, revoked and reissued, or terminated for cause in accordance with 20.2.70.405 NMAC[tL (d) The filing ofa request by the permittee for apermit modification, revocation and reissuance, or termination, or ofa notification ofplanned changes or anticipated noncompliance shall not stay any permit condition[tL (e) The permit does not convey any property rights ofany sort, or any exclusive privilege[tL (1) Within the period specified by the [P]gepartment, the permittee shall furnish any information thatthe [P]gepm1ment may request in writing to determine whether cause exists for reopening and revising, revoking and reissuing, or termination ofthe permit or to determine compliance with the permit. Upon request, the permittee shall also furnish to the [p]gepartment copies ofrecords required by the permitto be maintained. (3) The terms and conditions for all alternative operating scenarios identified in the application and approved by the [P]gepartment: (a)**[g]~hall** require that the permittee maintain a log at the permitted facility which documents, contemporaneously with any change from one operating scenario to another, the scenario under which the facility is operating; and (b)**[g]~hall,** for each such alternative scenario, meet all applicable requirements and the requirements ofthis Part. (4) The [P]gepartment may impose conditions regulating emissions during startup and shutdown. (5) All permitterms and conditions which are required under the Federal Act or under any ofits applicable requirements, including any provisions designed to limit a source's potential to emit, are enforceable by the Administrator and citizens under the Federal Act. The

20.2.70 NMAC Proposed Revisions Page 12 of 18

### permit shall specifically designate as not being federally enforceable under the Federal Act any terms or conditions included inthe permitthat are notrequired underthe Federal Act or under any ofits applicable requirements. (6) The issuance ofapermit, orthe filing or approval ofa compliance plan, does notrelieve any person from civil or criminal liability for failure to comply with the provisions of the Air Quality Control Act, the Federal Act, federal regulations thereunder, any applicable regulations ofthe Board, and any other applicable law or regulation. (7) The [f)]Qepartmentmay include part or all ofthe contents ofthe application as terms and conditions ofthe permit orpermitmodification. The [f)]Qepartment shall not apply permit terms and conditions upon emissions ofregulated pollutants for which there are no applicable requirements, unless the source is major for that pollutant. (8) Fugitive emissions from a source shall be included inthe operating permit in the same manner as stack emissions, regardless ofwhether the source category in question is included in the list ofsources contained in the definition ofmajor source. (9) The acid rain portion ofoperating permits for acid rain sources shall additionally: (a)**[8]~tate** 

### that, where an applicable requirement ofthe Federal Act is more stringent than an applicable requirement ofregulations promulgated under title IV ofthe Federal Act, both provisions shall be incorporated into the permit and shall be enforceable by the**Administrator[~];** 

### and (b)**[G]~ontain** 

### apermit condition prohibiting emissions exceeding any allowances that the acid rain source lawfully holds under title IV ofthe Federal Act orthe regulations promulgated thereunder. No permit modification under this Part shall be required for increases in emissions that are authorized by allowances acquired pursuantto the acid rain program, provided that such increases do notrequire apermitmodification under any other applicable requirement. No limit shall be placed on the number ofallowances held by the acid rain source. The permittee may not use allowances as a defense to noncompliance with any other applicable requirement. Any such allowance shall be accounted for according to the procedures established in regulations promulgated under title IV ofthe Federal Act. B. Permit [f)]Quration[-oJ.,. The [f)]Qepartment shall issue operating permits for a fixed term offive (5) years. 

### C. Monitoring[-oJ.,. (1) 

### Each permit shall contain all emissions monitoring requirements, and analysis procedures ortest methods, required to assure and verify compliance with the terms and conditions ofthe permit and applicable requirements, including any procedures and methods promulgated by the Administrator. (2) Where the applicable requirement does not require periodic testing or instrumental or noninstrumental monitoring (which may consist ofrecordkeeping designed to serve as monitoring), the permit shall require periodic monitoring sufficientto yield reliable data from the relevant time period that are representative ofthe source's compliance with the permit, as reported pursuantto subsection E of20.2.70.302 NMAC. Such monitoring requirements shall assure use ofterms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirement. (3) The pennit shall also contain specific requirements concerning the use, maintenance, and, when appropriate, installation ofmonitoring equipment or methods. D. Recordkeeping[-oJ.,.

20.2.70 NMAC Proposed Revisions Page 13 of 18(1) 

### The permit shall require recordkeeping sufficient to assure and verify compliance withthe terms and conditions ofthe permit, including recordkeeping of: (a) [+]lhe date, place as defined in the permit, and time ofsampling or measurements; (b) [+J1he date(s) analyses were performed; (e) [+J1he company or entity thatperformed the analyses; (d) [+]lhe analytical techniques or methods used; (e) [+]lhe results ofsuch analyses; and (f) 

### [+]lhe operating conditions existing at the time ofsampling or measurement. (2) Records ofall monitoring data and support information shall be retained for a period ofat least five (5) years from the date ofthe monitoring sample, measurement, report, or application. Supporting information includes all calibration and maintenance records and all original strip-chart recordings for continuous monitoring instrumentation, and copies ofall reports required by the permit. E. 

### Reporting[.;-l. The permit shall require reporting sufficientto assure and verify compliance with the terms and conditions ofthe permit and all applicable requirements, including[.;.] all ofthe following. (1) 

### Submittal ofreports ofany required monitoring at least every six (6) months. The reports shall be due to the [&]gepartment within forty-five (45) days ofthe end ofthe permittee's reporting period. All instances ofdeviations from permit requirements, including emergencies, must be clearly identified in such reports. All required reports mustbe certified by a responsible official consistent with subsection E of20.2.70.300 NMAC[;-l. (2) Prompt reporting ofall deviations (including emergencies) from permit requirements, including the date, time, duration and probable cause ofsuch deviations, the quantity and pollutanttype ofexcess emissions resulting from the deviation, and any corrective actions orpreventive measures taken. Such reports shall include telephone, verbal or facsimile communication within twenty-four (24) hours ofthe start ofthe next business day and written notification within ten (1 0)**days[~l.** (3) 

### Submittal ofcompliance certification reports at least every twelve (12) months (or more frequently ifso specified by an applicable requirement) certifying the source's compliance status with [all permit] terms and conditions contained in the permit [and all applicable requirements relevantto the source], including [those related to] emission**limitations~** 

### standards, or work practices. The reports shall be due to the [&]gepartment withinthirty (30) days ofthe end ofthe permittee's reporting period. Such compliance certifications shall be submitted to the Administrator as well as to the [D]gepartment and shall include: (a) [+J1he identification ofeach term orcondition ofthe permit that is the basis ofthe certification; (b) [+]1he compliance status ofthe source; (e) [W]whether compliance was continuous or intermittent; (d) [+]1he methodes) used for determining the compliance status ofthe source, currently and during the reporting period identified in the permit; and (e)**[S]~uch** 

### other facts as the [&]gepartment may require to determine the compliance status ofthe source[-;--antll. (4) Such additional provisions as may be specified by the Administratorto determine the compliance status ofthe source.

20.2.70 NMAC Proposed Revisions Page 14 of 18

### F. Portable and Temporary Sources[-:-l The [g]4epartmentmay issue permits for portable and temporary sources which allow such sources to relocate without undergoing a pennitmodification. Such permits shall not apply to acid rain sources and shall include conditions to assure that: (1) [+]1he source is installed at all locations in a manner conforming with the permit; (2) [+]!he source shall comply with all applicable requirements and all other provisions ofthis Part at all authorized locations; (3) [+]1he owner or operator shall notify the [g]4epartment in writing at least fifteen (15) calendar days in advance ofeach change in location; (4) 

### [N]gotification shall include a legal description ofwhere the source is to be relocated and how long it will be located there; and (5)**[g]~missions** 

### from the source shall not, at any location, result in or contribute to an exceedance ofanational ambient air quality standard or increment orvisibility requirement under Part C oftitle I ofthe Federal Act. The [g]4epartment may require dispersion modeling to assure compliance at any location. G. Compliance[.;.L To assure and verify compliance with the terms and conditions of the permit and with this Part, permits shall also[-:-] include all the following. (1) Require that, upon presentation ofcredentials and other documents as may be required by law, the permittee shall allow authorized representatives ofthe [g]4epartmentto perform the following: (a)**[g]~nter** 

### upon the permittee's premises where a source is located or emission related activity is conducted, or where records must be kept under the conditions ofthe permit; (b) [R]have access to and copy any records that must be kept under the conditions ofthe permit; (c) [IJinspect any facilities, equipment (including monitoring and air poliution control equipment), practices, or operations regulated or required under the permit; and (d)**[.g]~ample** 

### ormonitor any substances orparameters for the purpose of assuring compliance with the permit or applicable requirements or as otherwise authorized by the Federal Act.(2) Require that sources required underparagraph (12) ofsubsection D of 20.2.70.300 NMAC to have a schedule ofcompliance submit progress reports to the [g]4epartment at least semiannually, ormore frequently ifspecified in the applicable requirement or by the [g]4epartment. Such progress reports shall be consistent with the schedule ofcompliance and requirements ofparagraph (12) ofsubsection D of20.2.70.300 NMAC and shall contain: (a) [g]4ates for achieving the activities, milestones, or compliance required in the schedule ofcompliance, and dates when such activities, milestones or compliance were achieved; and (b) [A**]~n** 

### explanation ofwhy any dates in the schedule ofcompliance were not orwill not be met, and any preventive or corrective measures adopted. (3) Include such otherprovisions as the [g]4epartment may require. H. Operational Flexibility[-:-L (1) Section 502(b)(1 0) Changes

20.2.70 NMAC Proposed Revisions Page 15 of 18(a) The permittee may make section 502(b)(10) changes, as defined in 20.2.70.7 NMAC, without applying for apermit modification, ifthose changes are not title I modifications and the changes do not cause the facility to exceed the emissions allowable under the permit (whether expressed as a rate ofemissions or in terms oftotal emissions). (b) For each such change, the permittee shall provide written notification to the [f)]gepartment and the Administrator at least seven (7) days in advance ofthe proposed changes. Such notification shall include abriefdescription ofthe change within the permitted facility, the date on which the change will occur, any change in emissions, and any permitterm or condition that is no longer applicable as a result ofthe change. (c) The permittee and [f)]gepartment shall attach each such notice to their copy ofthe relevantpermit. (d) Ifthe written notification and the change qualify under this provision, the permittee is not required to comply with the permit terms and conditions it has identified that restrict the change. Ifthe change does not qualify under this provision, the original terms ofthe permitremain fully enforceable. (2) Emissions trading within a facility[.;-].:. (a) The [f)]gepartment shall, ifan applicantrequests it, issue permits that contain terms and conditions allowing for the trading ofemissions increases and decreases in the permitted facility solely for the purpose ofcomplying with a federally enforceable emissions cap that is established in the permit in addition to any applicable requirements. Such terms and conditions shall include all terms and conditions required under 20.2.70.302 NMAC to determine compliance. Ifapplicable requirements apply to the requested emissions trading, permit conditions shall be issued only to the extentthat the applicable requirements provide for trading such increases and decreases without a case-by-case approval. (b) The applicant shall include in the application proposed replicable procedures and permit terms that ensure the emissions trades are quantifiable and enforceable. The [f)]gepartment shall not include in the emissions trading provisions any emissions units for which emissions are not quantifiable orfor which there are no replicable procedures to enforce the emissions trades. The permit shall require compliance with all applicable requirements. (c) For each such change, the permittee shall provide written notification to the [f)]gepartment and the Administrator at least seven (7) days in advance ofthe proposed changes. Such notification shall state when the change will occur and shall describe the changes in emissions that will result and how these increases and decreases in emissions will comply with the terms and conditions ofthe permit. (d) The permittee and [f)]gepartment shall attach each such notice to their copy ofthe relevantpermit. I. Off-Permit Changes[.;-L (1) Permittees are allowedto make, without a permitmodification, changes that are not addressed orprohibited by the operating permit, if: (a)**[:g]~ach** such change meets all applicable requirements and shall not violate any existing permitterm or condition; (b)**[S]~uch** changes are not subjectto any requirements under title IV ofthe Federal Act and are not title I modifications; (c)**[S]~uch** changes are not subject to permitmodification procedures under 20.2.70.404 NMAC; and

20.2.70 NMAC Proposed Revisions Page 16 of 18

### (d) [+]!he permittee provides contemporaneous written notice to the [GJ.Qepartment and US EPA ofeach such change, except for changes that qualify as insignificant activities. Such written notice shall describe each such change, including the date, any change in emissions, pollutants emitted and any applicable requirement that would apply as a result ofthe change. (2) The permittee shall keep arecord describing changes made at the source that result in emissions ofa regulated air pollutant subject to an applicable requirement, but not otherwise regulated under the permit, and the emissions resulting from those changes. 

### J. Permit Shield[-:l- (1) 

### Except as provided in this Part, the [G]Qepartment shall expressly include in a Part 70 (20.2.70 NMAC) permit aprovision stating that compliance with the conditions ofthe permit shall be deemed compliance with any applicable requirements as ofthe date ofpermit issuance, provided that: (a)**[S]~uch** 

### applicable requirements are included and are specifically identified in the permit; or (b) [+]!he [G]Qepartment, in acting on the permit application or significant permit modification, determines inwriting that otherrequirements specifically identified are not applicable to the source, and the permit includes the determination or a concise summary thereof. (2) A Part 70 (20.2.70 NMAC) permit that does not expressly state that apermit shield exists for a specific provision shall be presumed not to provide such a shield for that provision. (3) 

### Nothing in this section or in any Part 70 (20.2.70 NMAC) permit shall alter or affect the following: (a) [+J!he provisions ofsection 303 ofthe Federal Act

-- Emergency Powers, including the authority ofthe Administrator under that section, orthe provisions ofthe New Mexico Air Quality Control Act, section 74-2-10 NMSA 1978; (b) [+]!he liability ofan owner or operator ofa source for any violation of applicable requirements priorto orat the time ofpermit issuance; (c) [+]!he applicable requirements ofthe acid rain program, consistent with section 408(a) ofthe Federal Act; or (d) [+]!he ability ofUS EPA to obtain information from a source pursuant to section 114 ofthe Federal Act, orthe [G]Qepartment to obtain information subject to the New Mexico Air Quality Control Act, section 74-2-13 NMSA 1978. (4) The permit shield shall remain in effect ifthe permitterms and conditions are extended past the expiration date ofthe permitpursuant to subsection D of20.2.70.400 NMAC. (5) 

### The permit shield shall extend to terms and conditions that allow emission increases and decreases as part ofemissions trading within a facility pursuantto paragraph (2) of subsection H of20.2.70.302 NMAC, and to all terms and conditions under each operating scenario included pursuantto paragraph (3) ofsubsection A of20.2.70.302 NMAC. (6) The permit shield shall not extend to administrative amendments under subsection A of20.2.70.404 NMAC, to minorpermit modifications under subsection B of 20.2.70.404 NMAC, to section 502(b)(10) changes under paragraph (1) 

### ofsubsection H of 20.2.70.302 NMAC, orto permitterms or conditions for which notice has been given to reopen orrevoke all or partunder 20.2.70.405 NMAC.

20.2.70 NMAC Proposed Revisions Page 17 of18

### 20.2.70.304 EMERGENCY**PROVISION[t]~** A. An "emergency" means any situation arising from sudden and reasonably unforeseeable events beyondthe control ofthe permittee, including acts ofGod, which situation requires immediate corrective action to restore normal operation, and that causes the source to exceed a technology-based emission limitation under the permit due to unavoidable increases in emissions attributable to the emergency. An emergency shall not include noncompliance to the extent caused by improperly designed equipment, lack ofpreventive maintenance, or careless or improper operation. B. An emergency constitutes an affirmative defense to an action brought for noncompliance with such technology-based emission limitations ifthe permittee has demonstrated throughproperly signed, contemporaneous operating logs, or other relevant evidence that: (1) An emergency occurred and that the permittee can identify the cause(s) ofthe emergency; 

### (2) The permitted facility was at the time being properly operated; (3) During the period ofthe emergency the permittee took all reasonable steps to minimize levels ofemissions that exceeded the emission standards or other requirements in the permit; and(4) The permittee fulfilled notification requirements under paragraph (2) of subsection E of20.2.70.302 NMAC. This notice must contain a description ofthe emergency, any steps taken to mitigate emissions, and corrective actions taken. 

### C. In any enforcement proceeding, the permittee seeking to establish the occurrence ofan emergency has the burden ofproof. D. This provision is in addition to any emergency or upsetprovision contained in any applicable requirement[, except that Part 70 sources shalI not be subject to the provisions of 20.2.7**N~1AC** (Excess Emissions during Malfunction, Startup, Shutdovm, or Scheduled Maintenance) for permit terms and conditions issued under 20.2.70 NMAC].

20.2.70 NMAC Proposed Revisions Page 18 of 18The Departmentproposes that the Board adopt the following revisions to 20.2.3 N:MAC

- Ambient Air Quality Standards.


### 20.2.3.9 LIMITATION OF APPLICABILITY TO 20.2.70 NMAC. The requirements ohms part are not applicable requirements under 20.2.70 NMAC, as defined by thatpart. This section does not limitthe applicability ofthis part to sources required to obtain apermitunder 20.2.72 NMAC, nor does it limitwhich terms and conditions ofpermits issued pursuantto 20.2.72 NMAC are applicable requirements for permits issued pursuantto 20.2.70 NMAC. 

### [2().2.3.9] 20.2.3.10 to 

### 20.2.3.107 [RESERVED]

NMED EXHIBIT C-2

### The Departmentproposes that the Board adoptthe following revisions to 20.2.72 NMACConstruction Permits.
20.2.72.216 

### NONATTAINMENT AREA REQUIREMENTS: A. The requirements ofthis section apply to: (1) A new source or modification ofan existing source that 

### [wffi.eh] will emit a regulated air contaminant such that the ambient impact ofthe contaminantwould exceed the significant ambient concentration in 20.2.72.500 NMAC, Table 1, at any location that does not meet the New Mexico Ambient Air Quality Standard for the contaminant; [ef] (2) A new source or modification ofan existing source that 

### [wffi.eh] is not a major stationary source or major modification as defined in 20.2.79 NMAC and 

### [wffi.eh] that will emit a regulated air contaminant suchthat the ambient impact ofthe contaminant would exceed the significant ambient concentration in Table 1 at any location that does not meet the National Ambient Air Quality Standard for the contaminant[ ";"] ; or (3) An 

### existing source that does not propose an increase in emissions and that will emit aregulated air contaminant such that the ambient impact ofthe contaminant would exceed the significant ambient concentration in 20.2.72.500 NMAC (Table 1) 

### at any locationthat does not meet the national orNew Mexico ambient air quality standard for the contaminant. B. 

### A new source or modification ofan existing source subject to this section shall offsetthe ambient impact ofits emissions by: (1) Obtaining emission offsets for proposed emissions in an amount greaterthan one-to-one such that a net air quality benefit will occur; and (2) Ensuring emission offsets are quantifiable, enforceable, and permanent by meeting the following sections of20.2.79 NMAC: (a) 20.2.79.114 NMAC (Emission Offset Baseline) (b) 20.2.79.115 NMAC (Emission Offsets) (c) 20.2.79.117 NMAC (Air Quality Benefit) 

### C. An 

### existing source that is subject to this section shall demonstrate a net air quality benefit ofat least a 20 percent reduction in ambient impact for each applicable contaminant. The 20 percent reduction shall be calculated as the projected source impact subtracted from the existing source impact divided by the existing source impact. The net air quality benefitmust also meet the requirements of20.2.79.117 NMAC (Air Quality Benefit).

NMED EXHIBIT C-3NMED'S NOTICE OF FILING EXHIBITS
The New Mexico Environment Department ("NMED") hereby gives notice that it filed
its exhibits for the hearing in this matter, scheduled for August 1, 2006.

Respectfully submitted,
NEW MEXICO ENVIRONMENTDEPARTMENT

Tannis 

### L. Fox Deputy General Counsel Office ofGeneral Counsel P.O. Box 26110 SantaFe, New Mexico 87504 (505) 827-1603 Attorney for NMED

Certificate ofService
I certify that a copy ofthe foregoing pleading was servedby mail on July 20,2006 on Zachary Shandler, AssistantAttorney General, Office ofthe Attorney General, P.O. Box 1508, SantaFe, NewMexico 87504-1508. 

# Tc;?h2<
Tannis 

### L. Fox

### No. EIB 05-12 (R) ',' /"""-<0- I "

__**~~~'\** 

### STATE OF NEW MEXICQ)\' 

## "! , " ENVIRONMENTAL IMPROVEME,NT SOARD
IN THE MATTER OF THE PETITION FOR PUBLIC HEARING TO CONSIDER PROPOSED AMENDMENTS TO 20.2.70 NMAC, AIR QUALITY RULES, OPERATING PERMITS
NMED EXHIBIT INDEX .**r~'** --.

, :

.**,~~** ''; ";



### 1. Resume of Richard Goodyear 

### 2. Direct Testimony of Richard Goodyear 

### 3. A. Proposed Amendments 20.2.70 NMAC 

### 3. B. Proposed Amendments 20.2.3.9 NMAC 

### 3. C. Proposed Amendments 20.2.72.216 NMAC 

### 4. Public Participation Documentation 

### 5. Affidavits of Publication

### STATE OF NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD
IN THE MAnER OF THE PE"rITION FOR PUBLIC HEARING TO CONSIDER PROPOSED AMENDMENTS TO 20.2.70 NMAC, AIR QUALITY RULES, OPERATING PERMITS PLEADING INDEX No. EIB 05·12 (R)

No. Date By Title



### 1. 08/22/05 Hearing Notice of Docketing Administrator 

### 2; 04/17/06 Air Qualitv Bureau Revised Petition for Public Hearing 

### 3. 07/07/06 NMED Statement of Intent to Present Technical Evidence 

### 4. 07/20/06 NMED Notice of Filing of Exhibits; Exhibits 

### 5. 6. 7. 8. 9 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32.

### RICHARD GOODYEAR
TITLE: Engineering Manager (Adminlops) Registered professional engineer inNM


### EDUCATION: B.S., United States Military Academy, 1970 M.S., Mechanical Engineering, Iowa State University, 1975


### EXPERIENCE (May 

### 06): Air Permitting Experience with NMED/AQB: 13.8 years Total Environmental Experience: 17.8 years Total Technical Experience: 34.8 years Total Managerial Experience: 27.3 years 

### TECHNICAL EXPERIENCE: Environmental

• 1987

- 1991: Planned, organized, and directed the environmental program ofa military community

- to include compliance with federal, state, and local laws on solid waste, radon, asbestos, hazardous waste, water quality, sewage treatment, and underground storage tanks.

• 1992

- 1993: Processed constructionpermit applications for the state ofNew Mexico.

• 1994

- 1996: Organized and directed the air quality operating permitprogram for the state ofNew Mexico.

• 1996

- present: Directs all airpermittingprograms for the state ofNew Mexico. Military 1970

- 1991: Troop unit experience included positions of platoon leader and commander at engineer company level, and personnel officer, logistics officer, equipment maintenance officer, and executive officer at engineer battalion level. Other assignments included deputy project manager for research and development ofa subsystem ofa military rocket, assistant professor of engineering at the United States Military Academy, and public works director for a military community of46,000 acres and 1200 buildings, supporting 85,000 personnel.


### TECHNICAL TRAINING EPA 413

- Control ofParticulate Emissions
EPA 415

- Control ofGaseous Emission
EPA 423

- Dispersion ofAir Pollution

- Model Applications
EPA 427

- Combustion Evaluation
EPA 461

- Intermediate Permitting
EPA 454

- Effective Permit Writing NMED EXHIBIT #1

### EPA 400

- Introduction to Air Toxics (SI)
Stress Management and Effective Communication Skills, 1997 

### Dealing with Conflict andNegativity inthe Workplace, 1997


### How to Deal with Employee Attitude Problems, 1998


### Communication and ConflictManagement, 1998


### SFCC Management Development Program, 1998


### NMED Legal Training/Documentation, 1999 

### Systematic Development ofInformed Consent, 1999


### The Public ServantManager, 2000
7 Habits ofHighly Successful People, 2000 Management Conference, 2000 Improving Teamwork, 2001
ConflictManagement, 2001
Emotional Intelligence, 2001 Recruiting and Interviewing Skills, 2001 Organizational Courage in State Government: A Practical Guide for Documenting Discipline, 2001
New Mexico Public Servant Leadership Program, 2001
Woodstock Institute for Negotiation

- Negotiating, Collaborating, and Leading In 

### Today's World, 2001 Managing Organizational Performance, 2002
SFCC ManagementDevelopment Program, 2006
Public SectorEmployment Law for Managers and Supervisors, 2006

### STATE OF NEWMEXlCO**E~RONMENTALIMPROVEMENTBOARD** 

### IN THE MATTER OF THE PETITION FOR PUBLIC HEARING TO CONSIDER PROPOSED AMENDMENTS TO 20.2.70 NMAC, AIR QUALITY RULES OPERATING PERMITS No. EIB OS-12(R)



### DIRECT TESTIMONY OF RICHARD GOODYEAR, P.E.
I. INTRODUCTION
The New Mexico Environment Department ("Department") comes before the
Environmental ImprovementBoard ("EIB") to request changes to several Air Quality Control Regulations. The Department's majorproposals are: 1. The Departmentproposes to clarify that the New Mexico Ambient Air Quality
Standards ("NMAAQS") are applied to major sources under 20.2.72 NMAC

- Construction
Permits 

### and are implemented inthe operating pennit as part ofthe incorporated construction permit.
2. The Departmentproposes to clarify the requirements for major sources to model
and certify compliance with the National Ambient Air Quality Standards ("NAAQS").
3. The Departmentproposes to allow discretion in requiring applicants to submit operational plans for startup and shutdown so that the plans that are submitted with Title V applications are appropriate and meaningful.
4. Finally, the Department proposes to change the section on emergency operation in
the Title V rule.
The Department's proposals concern the EIB's implementing Title V ofthe federal Clean
Air Act ("CAA"), and two regulations that are part ofthe New Mexico State Implementation
Plan ("SIP")

- the construction pennits rule (20.2.72 NMAC) and the ambient air quality

DIRECT TESTIMONY

- PAGE 1 NMED EXHIBIT #2standards rule (20.2.3 NMAC). These SIP rules have been in place since 1972 and 1970 respectively, and have been revised over the years. Title V was adopted as part ofthe 1990 CAA
Amendments. It was intended to consolidate into a single comprehensive enforceable document,
called the "operatingpermit", all applicable requirements for "major sources". Under Title V, a

source is considered to be "major" ifithas the potential to emit more than one hundred (100)

tons per year ofan air pollutant, such as nitrogen oxides ("NOx"), sulfur dioxide ("S02"), carbon
monoxide ("CO"), orparticulate matter ("PM"); or more than ten (10) tons per year ofa
hazardous air pollutant ("HAP"); or twenty five (25) tons per year ofall hazardous air pollutants.
In 1992, the U.S. Environmental Protection Agency ("EPA") adopted regulations establishing the
minimum requirements for state Title V programs. 

### In 1993, the EIB adopted regulations for
New Mexico's Title V program. 

### See 20.2.70 NMAC

- 

### Operating Permits (formerly 

### Air Quality
Control Regulation 770 ("AQCR 770")). In 1994, the EPA granted interim approval ofNew
Mexico's Title V program and, in 1996, it granted final and full approval.
A significant issue in this hearing concerns the applicability ofthe NAAQS and NMAAQS to major sources subject to New Mexico's Title V program. The NAAQS and NMAAQS are designed to ensure clean and healthy air for the citizens and environment ofNew
Mexico. They are setto preventpollutantlevels in ambient airthat could affectthe health of
sensitive populations such as children, the elderly, and the infirm, cause damage to the
environment including wildlife, crops, and building materials, or create haze that obscures visibility across our scenic state. The EPA has adopted NAAQS for NOx, sax, PM, CO, lead,
and ozone. The EIB has adopted NMAAQS for NOx, sax, and CO, as well as total suspended particulates ("TSP"), hydrogen sulfide ("H2 S"), and total reduced sulfur ("TRS"). The NMAAQS complementthe NAAQS, and in some cases, differ from and are more stringent than

DIRECT TESTIMONY

- PAGE 2

### theNAAQS.
One ofthe Department's most important functions is to ensure compliance with the NAAQS andNMAAQS. By ensuring compliance with these standards, the Departmentprevents
health and welfare impacts from large industrial facilities, prevents facilities thatproduce
excessive dust like rock crushers and asphalt plants from locating nearerto residences and
recreational areas, controls the emission ofdangerous pollutants like H2

### S, which smells bad and
is deadly in high concentrations, and minimizes environmental impacts like acid rain and haze.
The Department ensures compliance with the NAAQS and NMAAQS in two ways. First, the Department operates a system ofair quality monitors. However, it is expensive to
maintain air quality monitors, and it is notpossible to.install enough monitors for all ofthe pollutants to ensure compliance throughoutthe state. Therefore, the Departmentrelies on air quality modeling, like the EPA and all ofthe states, to ensure thatpollution sources comply with
the NAAQS and NMAAQS. Modeling is particularly useful for predicting air quality impacts
from pollution sources, especially inthe complex terrain ofNew Mexico.
Mostpollution sources inNew Mexico comply withthe NAAQS and NMAAQS. The
constructionpermit regulation, 20.2.72 NMAC, requires all new sources to demonstrate compliance with the NAAQS and NMAAQS before commencing construction (20.2.72.200.A.l NMAC). However, some sources were existing when the EIB adopted the constructionpermit regulation in 1972. These sources were notrequired to obtain a construction permituntil they
made a modification (20.2.72.200.A.2 NMAC). The regulation defines "modification" as a physical change or change in the method ofoperation ofa source that results in an increase inthe potential emission rate ofaregulated pollutant orthe emission ofa regulated pollutantnot previously emitted by the source (20.2.72.7.P NMAC). In some cases, these existing sources did

DIRECT TESTIMONY

- PAGE 3

### not comply with the NAAQS and NMAAQS. When these sources make amodification, the regulation allows these sources to do so without complying with the NAAQS orNMAAQS as long as they offsettheir impact on the applicable standard (20.2.72.208.D NMAC).
Since the EIB adopted these requirements in 1972, many existing sources that did not comply withthe NAAQS and NMAAQS have made modifications. Most ofthese sources now comply withthe NAAQS and NMAAQS, but a small number ofthem continue to exceed the NMAAQS as authorized under the offsetprovision. On the other hand, there are a small number
ofexisting sources that have never made amodification. These grandfathered sources were

neverreviewed underthe**co~struction** 

### permitregulation, and some ofthem continue to exceed
the NMAAQS and have never complied with the offset provision. Ofthis last category of

sources, some are "major" under Title V.


### For all major sources, regardless oftheir date ofconstruction, the operating pennit regulation currently requires compliance with the NAAQS and NMAAQS. However, the regulation does not require all major sources to conduct air dispersion modeling to.demonstrate compliance with the NMAAQS. As a result, some major sources that were neverreviewed
under the constructionpermitregulation, because they existedbefore the construction permit regulation and were never modified, were able to avoid the obligation to demonstrate compliance
withthe NMAAQS under the operating permit regulation. l


### This loophole was not exploited by all major sources in this category. Some ofthem voluntarily
conducted air dispersion modeling and reduced emissions to comply with the NMAAQS. Others
have done the same to settle enforcement actions for unrelated air quality violations. Eight (8)

I The requirement for air dispersion modeling differed forthe NAAQS and NMAAQS, and all major sources have complied with the requirement for the NAAQS.

DIRECT TESTIMONY

- PAGE 4

### major sources in their currentconfiguration have not conducted air dispersion modeling for NMAAQS.2


### The Departmentbelieves that itis important to hold these sources accountable for their pollutionby first determining whether they are causing an exceedance ofthe state standards and by thenrequiring corrective actions to comply with the NMAAQS, such as raising stack heights, taking enforceable limitations on hours ofoperation, orreplacing old compressor engines.
Since 1997, the Departmenthas worked with Title V sources to obtain voluntary compliance with the NMAAQS. Overthe years, the Department met numerous times with Title
V sources, including at least four (4) public meetings (Jan 8, 2001, Oct 8,2002, Sep 21, 2004, July 6, 2006), to hear and respond to their concerns. 

### In addition to holding public meetings, the

. Department metwith numerous stakeholders, including industry and public representatives, on the issues ofambient air quality standards and Title V sources. The Department has also
maintained a web site and postedregulatory revisions as available. The Department held the
final public meeting on this issue in SantaFe on July 6, 2006, to discuss the proposed regulatory changes with the public. Industry, envirorunental and public members were invited. Seven industry representatives attended this meeting. The Departmentrevised its proposal for Part 70
based onthe comments received atthis meeting, as I will describe later. In 2002, some ofthese

sources, inthe form ofan infonnal association called the "Industry Working Group", sought to preemptthe Department from enforcing the NMAAQS by petitioning the EIB to delete the NMAAQS from the applicable requirement definition. Some ofthese sources also appealed
Title V permits that identified theNMAAQS as an applicable requirement orthat required

2 The owners and sources include: TranswesternfRoswelI Compressor Station, Transwestem/Thoreau Compressor Station; El Paso Electric/Rio Grande Station; HLBrown/Bluitt Gas Plant; Frontier/Lusk Compressor Station; VersadolBuckeye Compressor Station; Versado/Eunice North Compressor Station; Versado/Saunders Gas Plant.

DIRECT TESTIMONY

- PAGE 5

### compliance plans. In response, the Departmentfiled its ownpetition. Before a hearing could be held, the EIB stayed the petitions to allow the legislature an opportunity to resolve the dispute in
its 2003 session.
At the urging ofthese sources, the Department requested an appropriation from the legislature to study and update the NMAAQS. The NMAAQS were adopted by the EIB and approved by EPA in 1970. 

### In 1995, the EIB repealedthe NMAAQS thatwere obsolete. Subsequently, some Title V sources argued that the remaining NMAAQS, and specifically the
24-hourNOx NMAAQS, were too stringent and should be deleted. To address these arguments,
the Department conducted an extensive literature survey, which found that more than one-halfof
the reported studies supported the 24-hour NOx NMAAQS.3 

### Nonetheless, because these sources continued to argue that theNMAAQS were not valid, the Department requested funding from
thelegislature for a more formal study. However, the legislature did not approve the request. Beginning in 

### May 2003 and extending through April 2005, EI Paso Natural Gas Company ("EPNG") appealed to the EIB the issuance ofeleven Title V permits, disputing the applicability ofambient air quality standards. Seven ofthese EPNG sources were grandfathered.
In July 2004, the Department again requestedthe EIB to schedule ahearing on this issue.
Some ofthe parties that submittedNotices ofIntent to Present Technical Testimony opposing the Department included the New Mexico Oil and Gas Association ("NMOGA"), Phelps Dodge Corporation ("PD"), and Waste Management ofNew Mexico, Inc. ("WMI"). In late October 2004, EPNG approached the Department requesting negotiations to settle its permit appeals.
These negotiations commenced immediately and continued until the Department finalized
settlement agreements with both EPNG andNMOGA in June 2005. Consequently, on June 6, 2005, the Department withdrew its petition for hearing. The regulatory changes proposed by the

3 The Department also found that nearly two-thirds ofthe reported studies supported the SOx NMAAQS.

DIRECT TESTIMONY

- PAGE 6

### Department in this rulemaking are based on the concepts or specifics ofthe settlement agreement
with EPNG.
II. PROPOSED REGULATORY CHANGES
As mentioned, the Title V operating permits rule, Part 70, has been in 

### place for over 10

years. The Department's experience overthat time has led us to believe that it is necessary to
make some changes to reduce confusion and eliminate unnecessary requirements, as well as to remedy the ambient standards issue. Although there are numerous changes in the sections presented in our proposal, most ofthem are not substantive and serve only to comply with the requirements ofthe Commission ofPublic Records rule at 1.24.10 NMAC. The following
discussion addresses the substantive changes.
A. 20.2.70.5 NMAC
TheDepartment proposes to add the phrase "except where a later date is cited atthe end
ofa section" to 20.2.70.5 NMAC. The new language conforms Part 70 with the EIB's other air quality regulations, and alerts the reader that certain sections may have been revised afterthe
effective date ofthe regulation.
B. Applicable requirements, 20.2.70.7.E NMAC
The Department proposes to add areference to "Part 70 source" in the introductoryparagraph of
20.2.70.7.E NMAC. The term clarifies the applicability ofthe NAAQS to Title V sources by negating a recent argument raised by some members ofthe regulated community. The introductoryparagraph currently states that the applicable requirements include "all ofthe following, as they apply to emissions units at a Part 70 source." Some members ofthe regulated community have argued thatthis languageprecluded enforcement ofNAAQS because the NAAQS are applicable to Part 70 sources, not emission units. The argument contradicts the

DIRECT TESTIMONY

- PAGE 7

### principle ofconstruction that a regulation shouldbe harmonized with otherparts ofthe regulation and given an interpretation consistent with the regulatory intent. The term "emissions
unit" is defined as "any part or activity ofa stationary source that emits orhas the potential to
emit any regulated airpollutant or any [HAP]" (20.2.70.7. J 

### NMAC). The NAAQS apply to
each such part or activity ofa stationary source; ifthere is more than one part oractivity, the NAAQS apply to the cumulative emissions. To eliminate any confusion on this issue and ensure enforcement ofthe NAAQS, the Departmentproposes to clarify that the listed requirements apply to Title V sources, as well as emission units, as applicable.


### C. Stationary source, 20.2.70.7.AI NMAC
The Departmentproposes to clarify the definition of"stationary source" by adding the phrase "or any combination thereof' so that the definition reads that "'[s]tationary source' or 'source' means any building, structure, facility, or installation, or any combination thereofthat
emits ormay emit any regulated airpollutant orany pollutantlisted under section 112(b) ofthe
Federal Act." The current definition sometimes results in confusion as to the scope ofwhat
should be included in an application for apermit. This catch-all phrase clarifies that large entities, such as national laboratories and military bases, are "stationary sources" subjectto Part 70, rather than the individual buildings, structures, facilities, and installatIons which comprise
them.


### D. Requirement for a construction permit, 20.2.70.201.D NMAC
In light ofrecent settlements (including the EPNG settlement) that have or will result in a significant decrease ofemissions from some ofthe largest, oldest, and least controlled industrial
facilities in New Mexico, and the availability ofother approaches for reducing emissions at the
few remaining sources for which NMAAQS compliance may still be an issue, the Department

DIRECT TESTIMONY

- PAGE 8

### believes thatthe NMAAQS does not need to be an explicit, applicable requirement under the operating permit rule. We've retained the national ambient air quality standards as an applicable requirement for Title V sources because they are health-based. The changes we propose do not

remove the NMAAQS requirement from the Title V sources, but only change the program in
whichit will apply. The NMAAQS would be applied to major sources under 20.2.72 NMACConstruction Permits 

### and would be implementedin the operating permit as part ofthe incorporated construction permit. In orderto achieve this goal we propose to make changes to 3
different regulations:

a. The Title V permitting rule, 20.2.70 NMAC at section 201.D;
b. The state ambient air quality standards rule, 20.2.3 NMAC at section 9; and

c. The new source review permitting rule, 20.2.72 NMAC at section 216.


### 1. Title V permitting rule, 20.2.70 NMAC at section 201.D
The addition ofparagraph 20I.D to 20.2.70 NMAC will allow NMED to ensure that
landfills and grandfathered Title V sources (those sources thathave neverreceived apermit
under either 20.2.72 NMAC (Construction Permits) or 20.2.74 NMAC (permits

- Prevention of Significant Deterioration (PSD» comply with the requirements under 20.2.72 NMAC. 20.2.72
NMAC requires a modeling demonstrationto show whether emissions comply with New Mexico
and National Ambient Air Quality Standards. Violation ofthese standards is addressed in
section 216 of20.2.72 NMAC. The deadline of 180 days ensures that the landfills and the four grandfathered Title V sources act expeditiously. The provision for the Departmentto grant an extension to this deadline reflects the potential problems that a source may face in trying to
determine how to achieve the required progress toward compliance and in the coordination that
may be needed with equipment suppliers. Since May 1, 2006, when we submitted arevised

DIRECT TESTIMONY

- PAGE 9

### paragraph 201.D to the EIB, we have a better appreciation for the impact ofthis paragraph on landfills. New Mexico has 7 landfills with Title V permits and

### o~e application in process. 4 

### All
but one have modeled for state and federal standards, have shown compliance, and have
conditions in their Title V permits to ensure compliance. Forthe one exception (Clovis), the Department agreed that its emissions were so low that no modeling was necessary. There is no

reason to have these sources obtain aconstruction permit, which would be required by the previous section 20.2.70.201.D ofourproposal. Hence, the Departmentproposes the additional language in section 201.D at sub-paragraphs (2) and (3).
In new section 20l.D(l), the first sentence was inourprevious proposal and can only apply to sources that already have a Title V permit. However, there will be new landfill sources
in the future as they getbigger and trip the threshold for applicability ofTitle V. Hence, paragraph (2) applies the requirement to obtain a construction permitto them atthat future time.
For either category we wantto exclude sources that want to model and show full compliance in
the Title V program, because most ofthe landfills have already done so. Paragraph (3)
establishes this exclusion andmay also exclude any ofthe 8 other sources on the Department's
listthat can meet the exclusion requirement. For example, Versado told the Departmentthat it

was in the process ofmodeling for the company's sources on the list. Ifit shows compliance
with all standards and request appropriate conditions in its Title V permits, there is no need to go through the construction permitprocess. The 60 day time in paragraph (2) allows an applicant to
submit a Title V application and request the exclusion before an NSR permit would be due.
2. State ambient air qualify standards rule, 20.2.3 NMAC at section 9


### We need to add section 9 to 20.2.3 NMAC because 20.2.70 NMAC and the federal rule

4 Carlsbad/Sand PointLandfill, Clovis Regional Landfill, NortheastNew Mexico Regional LandfifI, Otero/Lincoln landfill, SantaFe CajaDel Rio Landfill, Camino Real Landfill, Rio Rancho Landfill, Sandoval County Landfill.

DIRECT TESTIMONY

- PAGE 10

### on which it was based, 40 CFR Part 70, require any regulation that is part ofthe State Implementation Plan to be an applicable requirement for a,Title V source. 20.2.3 NMAC is part
ofthe New Mexico SIP. Section 9 removes the NMAAQS from the applicability requirements
fOf all Title V sources, butthe new language also ensures that sources that request apermit under
the construction permitrule, 20.2.72 NMAC, know that these standards must continue to be
addressed intheir application. The new language also alerts Title V sources that when the NMAAQS result in conditions in their construction permit, those conditions are applicable requirements for the Title V permit.


### 3. New source review permitting rule, 20.2.72 NMAC at section 216
Section 216 of20.2.72 NMAC is changed to move sources that are causing violations
toward compliance in away that is consistent with past practice for minor sources. The changes
in paragraphs A(l) and A(2) are clarifications ofexisting language and do not change the requirements. Paragraph A(3) is added to address the Title V sources that would need to apply
for a constructionpermit. I want to note that since May 1, 2006, when we submitted this proposed paragraph to the EIB, we have added the words "orNew Mexico" to include the state
ambient air quality standards. Failure to include them was an oversight at the time. This

- , 

### paragraph also addresses all other major and minor sources that may be causing a violation of standards, but do not submit an application that falls under A(l) or A(2), such as the remaining
four Title V sources that do have constructionpermits buthaven't modeled. It 

### is the Department's intention that any such minor ormajor source would have to comply with the new paragraph C upon submittal ofany permit revision under section 219 of20.2.72 NMAC. New paragraph C establishes a way to achieve progress toward compliance and formalizes the concept
of20% reduction in ambient impact that for years has been expressed in our written modeling

DIRECT TESTIMONY

- PAGE 11

### guidance to permit applicants. Industry has accepted this concept in the past even though it was

not aregulatory requirement. The formula for determining the projected source impactbased on

areduction of20% and the reference to 20.2.79.117 NMAC serve to provide consistency among
different sources and cases.
E. 

### Deletion of transition schedule, 20.2.7.300.B(4) NMAC
This section established the schedule to submit applications for existing sources subject

to the Title Vrule at the time ofits approval. All such applications were submitted; consequently, this language is no longerneeded or relevant and should be removed.
F. Content ofpermit application, 20.2.70.300.D(5)(g) NMAC
One ofthe items thatthe current regulation requires as part ofthe Title V permit application is an operational plan. The Departmentproposes to revise 20.2.70.300.D(5)(g)
NMAC to allow discretion inrequiring applicants to submit operational plans for startup, shutdown, and emergencies. The federal rule, 40 CFR Part 70, does not require the submittal of operational plans in applications. Title V sources should comply with the terms and conditions
oftheirpermits at all times, including during startup and shutdown, and should provide the same notification ofviolations as required at all othertimes. The Department has found that the range offacilities subject to the operational plan requirement is too broad to allow us to provide practical, generally applicable guidance. Also, it is very difficult to forecast and address all the possible circumstances that could cause amalfunction or emergency. As aresult, the operational plans have varied widely in quality and enforceability. In practice, emissions may be minimized
better by taking steps that are different from those set forth in aplan that may have been
submitted several years ago. Operational plans for simple equipment, such as engines, don't
appear to provide much value; whereas, such aplan for complex equipment such as sulfur

DIRECT TESTIMONY

- PAGE 12

### recovery units orpower plants is more appropriate and meaningful.
G.
.Content ofpermit application, 20.2.7.300.DOO)(a) NMAC


### The original section D(lO) of20.2.7 NMAC established a one-time NAAQS modeling requirement for existing sources subjectto the Title V rule atthe time ofits approval. Consequently, it is no longerneeded orrelevant and should be removed.
With the new D(lO)(a) the Departmentproposes to establish the criteria on which Title V

sources should base any certification ofcompliance with the NAAQS for new and renewal Title
V applications. A key element ofthe Title V program is the requirement for responsible officials

to certify the truth, accuracy, and completeness ofany document submitted to the permitting
agency. Underthe CAA, certification is aminimum requirement for state Title V programs. Accordingly, Part 70 requires major sources to certify their compliance with all applicable requirements. The Department's proposal clarifies that certifications ofcompliance for new

sources will be based on the modeling submitted with aprevious construction permit application.
This approach is logical since any new emissions unit or source must obtain a construction permit and perform modeling. For sources renewing theirpermit, the Departmentproposes that
certification be based on compliance with the terms and conditions ofthe current operating permit. Again, this approach is logical since terms and conditions ofconstruction permits are brought into the most current operating permit. This proposed change should only address the NAAQS since they are intended to be the only ambient standard thatis directly applicable to a Title V source. Nevertheless, certification with permit conditions inherently reflects compliance
with the NMAAQS, because some conditions ofconstructionpermits are created to ensure compliance with these standards.

DIRECT TESTIMONY
- PAGE 13

### H. Permit content, 20.2.70.302E(3) Nl\1AC
The Departmentproposes to revise section 302.E.3 of20.2.270 NMAC to clarify that
annual compliance certifications are based on compliance with the terms and conditions in the pennit. The changes in 

### words here do not really change the requirement; they confonn the language ofthe changed sentence to the federal language at40 CFR 

### § 70.6(c)(5). In 1993, the Department's deviation from the federal language created confusion about what applicable requirements the annual compliance certification actually addresses. Responsible officials have
been reluctant to sign certifications ofcompliance that generically refer to all applicable requirements relevantto the source. Although the source mustprovide a list ofapplicable requirements in its application, it is the Department's responsibility to identify all applicable requirements in the operatingpennit; ifwe make a mistake, we can re-open the pennit at any time to fix the problem. Nor does this regulatory change allow a source to avoid accountability
for complying with all applicable requirements ifthey are not identified in the pennit. The Department would take enforcement action ifa source failed to comply with an applicable requirement even ifit was not listed in the pennit.
I. 

### Emergency provision, 20.2.70.304.D NMAC
The Departmentproposes to revise this section to confonn ourrule to the federal rule language at 40 CFR 

### § 70.6(g)(5). Currently, sources pennitted under 20.2.70 NMAC have some pennit conditions that are subject to 20.2.7 NMAC

- Excess emissions during malfunction,
startup, shutdown, orscheduledmaintenance 

### and other conditions that are not, creating
considerable confusion among both industry and the agency. Regulation 20.2.7 NMAC applies

to the violation ofany part ofthe SIP and to violation ofapennit issued under the construction pennits rule, but 20.2.7 NMAC does not apply to any federal requirement found inthe Code of

DIRECT TESTIMONY

- PAGE 14

### Federal Regulations ("CFR"), which contains its own provisions for dealing with violations of
the CFR. When these federal and state applicable requirements are incorporated in an operating pennit, they bring with them their o\vn emergency and upset provisions. The operating pennit
rule does allow new conditions to be created to ensure compliance with these other requirements,
ifthese requirements do not already include adequate monitoring provisions to ensure compliance. Yet, the existing language at section 304.D does not allow 20.2.7 NMAC to apply

to these new conditions created under the authority of20.2.70 NMAC, resulting in confusion

over how violation ofany particularpermit condition sbouldbe handled by the permittee. There
is no real benefitto having this distinction. With this revision, the rule will require Title V

sources to report violations ofthe terms and conditions in their permits and claim affirmative
defenses for such violations in amanner consistent with sources permitted under 20.2.72 NMAC.
III. IMPACT ON REGULATED COMMUNITY, PUBLIC AND NMED; EJ CONCERNS; AND IMPACT ON SMALL BUSINESS
The EIB has indicated that it is interested in the impact ofproposed regulations on the regulated community, the public and NMED resources. The amendments proposed by NMED
would affect, as stated, eight sources, as far as NMED is aware. The sources would be required

to conductmodeling for NMAAQS, which would be approximately $10,000 to $30,000 per

source. Ifmodeling demonstrated non-compliance with state standards, the sources would be required to install pollution control equipmentto make progress toward achievement ofthe
standards in accordance with 20.2.72 NMAC. NMED does not know whether any ofthese

sources would be out ofcompliance with state standards and, ifso, what type ofpollution control equipment would need to be installed. Therefore, NMED cannot estimate costs for such equipment. It 

### is importantto note that otherTitle V sources have already been required to model
for state standards and install pollution control equipmentto satisfy the requirements of20.2.72

DIRECT TESTIMONY

- PAGE 15

### NMAC, ifnecessary. Therefore, requiring these eight sources to do the same "levels the playing
field" and requires the eight sources to bearbusiness costs that other sources already have borne.
The impactto the public would be healthier, cleaner air, ifany ofthe sources are out of compliance with state standards and must install pollution control equipment. Such actions
would be particularly beneficial to the local communities in whichthe sources are located, which
is mostly inthe southeastpart ofthe state. This part ofthe state is rural and has a relatively
lower income level, raising environmentaljustice concerns. Therefore, any improved air quality

. could have apositive impact with respect to environmentaljustice concerns. For example, EI

Paso Electric Company, one ofthe eight sources, is located in Sunland Park, which is located on the border, and which is a socioeconomically disadvantaged community with a large Hispanic population. IfEL Paso Electric Company were required to reduce its emissions, this would have

a health benefit for this community.
NMED would be required to review the modeling for the eight sources, which requires
between eight and 40 hours ofstafftime per modeling exercise. The NMED Air Quality Bureau
is able to absorb**thi~** 

### work. Ifan NSR permit is required as a result, the permitting process would take more stafftime, but it is difficult to estimate precisely how much time. The Air Quality Bureau, however, is confidentthat it can absorb this work. It is possible that ifapermit
is required, a hearing would be held, requiring more NMED resources and possibly EIB

resources, although the likelihood ofa hearing is not greatbecause the sources would be required

to reduce emissions ifa permit is required.
The Small Business Regulatory ReliefActrequires agencies to submit proposed rules to
the Small Business Regulatory ReliefCommission ("Commission") ifthe proposed rules will
have an adverse impact on small business. Small business is defined as businesses with less than

DIRECT TESTIMONY
- PAGE 16

### 50 employees. As far as NMED is aware, none ofthe sources is a small business under that act.
NMED has submitted a letter to the Commission stating thatthe proposed rules will not have an adverse impact on small business.
The impact on the landfills will be negligible because all eight landfills affected except
for one have already conducted modeling for state standards. The one landfill that did not
conduct modeling did not do so becauseNMED found that its emissions were so low that it did

not need to conduct modeling.


### IV. CONCLUSION
After 12 years ofexperience withthe operating permits program, the Department requests the EIB to adopt these proposals. By making these clarifications and changes, the EIB
will provide a practical and reasonable way for major and minor sources to fulfill their obligation

to comply with the NAAQS and NMAAQS. By focusing on a small group ofsources that have
been able to avoid provisions ofourrules that would cause demonstration ofcompliance with
ambient standards, the EIB can prevent or reduce emission impacts that are harmful to public
health and the environment, and obtain emission reductions from some ofthe oldest and dirtiest
facilities in New Mexico. Additionally, the EIB can make changes that will reduce the bureaucracy and potential for confusion in conducting the air permitting program without reducing the effectiveness ofthe program.

DIRECT TESTIMONY

- PAGE 17The Department proposes thatthe Board adoptthe following revisions to 20.2.70 l\.T]V[l\C

- Operating Permits.


### 20.2.70.5 section. 

### EFFECTIVE DATE: 11130/95. except where a later date is cited at the end ofa



### 20.2.70.7 DEFINITIONS: 

### In addition to the terms defmed 

### in 20.2.2 N1vf.AC (Definitions), as used in this Part the following defmitions shall apply.[-;.] 

### A. "Acid rain source" has the meaning given to "affected source" in the regulations promulgated under title IV ofthe Federal Act, and includes all sources subject to title IV ofthe Federal Act. 

### B. "Affected programs" means all [S]§ta.tes, local airpollution control programs, and Indian [:f']!ribes and rP]12ueblos, that are within 50 miles ofthe source. C. 

### "Air pollutant" means ail 

### airpollution agent orcombination ofsuch agents,

.including anyphysical, chemical, biological, radioactive (including source material, special nuclearmaterial, andbyproductmaterial) substance or matter which is emitted into or otherwise enters the ambient air. Such teIDl includes any precursors to the formation ofany airpollutant, to ·the extent the Administratorhas identified suchprecursor orprecursors for the particular purpose for which the teIDl "airpollutant" is used. This excludes water vapor, nitrogen (N2), carbon dioxide (C02), oxygen (02), methane and ethane. D. 

### "Air pollution controi equipment" means any device, equipment, process or combination thereof, the operation ofwhich would limit, capture, reduce, confine, orotherwise control regulated 

### air pollutants or convert for the purposes ofcontrol any regulated airpollutant to another form, another chemical or anotherphysical state. This includes, but is not limitedto, sulfurrecovery units, acidplants, baghouses, precipitators, scrubbers, cyclones, water sprays, enclosures, catalytic converters, and steam or water injection

.

. E. 

### "Applicable requirementll means all ofthe following, as they apply to a Part 70 source or to an emissions unit[s] at a Part 70 source (including requirements that have been promulgated or approVed by the Board orUS EPA through rulemaking at the time ofpeIDlit issuance but have future-effective compliance dates)[-:-L (1) Any standard or otherrequirementprovided for in the New Mexico state implementation plan approved by US EPA, orpromulgated byUS EPA through rulemaking, undertitle I ofthe Federal Act to implementthe relevantrequirements ofthe Federal Act, including any revisions to thatplanpromulgated in 40 CFR, Part 52[;1 (2) Any term or condition ofanypreconstructionpermit issuedpursuantto regulations approved orpromulgated through rulemaking undertitle I, including parts C orD, of the Federal Act, unless that term or condition is determined by the Departmentto be no longer pertinent[tL(3) Any standard or otherrequirement under section 111 ofthe Federal Act, including section 111**(d)[t]~** (4) Any standard or otherrequirement under section 112 ofthe Federal Act, including any requirement concerning accidentprevention under section 112(r)(7) ofthe Federal Act[-;l (5) Any standard or other requirement ofthe acid rain program under title IV of the Federal Act or the regulations promulgated thereunder[-;-L

20.2.70 NMAC Proposed Revisions NMED EXHIBIT #3A Page 1 of 18(6) Any requirements establishedpursuantto section 504(b) or section 114(a)(3) ofthe Federal**Act[~J~** (1) Any standard or otherrequirement governing solid waste incineration under section 129 ofthe Federal Act[;l

. (8) Any standard or otherrequirement for consumer and commercial products under section 183(e) ofthe Federal**Act[~t** (9) Any standard or other requirement for tank vessels under section 183(f) of**t.~e** Federal**Act[~t** (10) Any standard or otherrequirement ofthe regulations promulgated to protect stratospheric ozone under title VI ofthe Federal Ad, unless the Administrator has determined that such requirements need not be contained in atitle V**permit[~J~** (11). Any national ambient air quality**standard[~J~** (12) Any increment or visibility requirementunderpart C oftitle I ofthe Federal Act, but only as it would apply to temporary sources permitted pursuant to section 504(e) ofthe

. Federal Act[;--a:OOl (13) Any regulation adopted by the Board pursuantto the New Mexico Air Quality Control Act, section 74-2-5(B) NMSA 1978. F. "CFR" means the Code ofFederal Regulations. G. "Draft permit" means a version ofapermit which the Department offers for public participation oraffectedprogramreview. H. "Emission limitation" means a requirement established by US EPA, the Board, orthe f&Jgepartment, that limits the quantity, rate or concentration, or combination thereof, of emissions ofregulated air pollutants on a continuous basis, including any requirements relating to the operation or maintenance ofa source to assure continuous reduction. 1. "Emissions allowable under the permit" means: (1) any state or federally enforceablepermit term or condition that establishes an emission limit (including a work practice standard) requested by the applicant and approved by the [Ii]4epartment or determined at issuance or renewal to be required by an applicable requirement; or (2) any federally enforceable emissions cap thatthe permittee has assumed to avoid an applicable requirementto which the source would otherwise be subject. 

### J. "Emissions unit" means any part or activity ofa stationary source that emits or has the potential to emit any regulated airpollutant or any air pollutant listed pursuant to section l12(b) ofthe Federal Act. This term is notmeant to alter or affectthe defmition ofthe term "unit" for purposes oftitle IV ofthe Federal Act. K. Federally enforceable" means alllimitations and conditions which are enforceable by the Administrator, including those reqUirements developed pursuantto 40 CFR Parts 60 and 61, requirements within the New Mexico State Implementation Plan, and any permit requirements established pursuant to 40 CFR 52.21 or under regulations approvedpursuant to 40 CFRPart 51, SubpartI, including 40 CFR 51.165 and 40 CFR 51.166. 

### L. "Final permit" means the version ofan operating permit issued by the [IfJ4epartment that has met all reviewrequirements of20.2.70.400 l\TMAC

- 20.2.70.499 NMAC. M.

. "Fugitive emissions" are those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally-equivalent opening.

20.2.70 NMAC Proposed Revisions Page 2 of 18

### N. ;lGeneral permit" means 

### an operatingpermitthat meets the requirements of 20.2.70.303 NMAC. 

### O.

. "Hazardous air pollutant" means an air contaminant that has been classified as a hazardous airpollutantpursuant to the Federal Act. P. l!Insignificant activities" means those activities which have been listed by the rP]gepartment and approved by the Administrator as insignificant on the basis ofsize, emissions
or production rate. Q. "Major source" means any stationary source (or any group ofstationary sources that are located on one or more contiguous or adjacentproperties, and are under common control ofthe same person(s)) 

### in which all ofthepollutant emitting activities at such source belong to the same Major Group (i.e., all have the same two-digit code), as described in the Standard Industrial Classification Manual, 1987, and that is described in paragraphs (1), (2) or (3) below. (1) A major source under section 112 ofthe Federal Act, which is defined as the following. 

### [c]

. (a) For pollutants other than radionuclides, any stationary source or group of stationary sources located within a contiguous area and under common control that emits orhas thepotential to emit, 

### in the aggregate, 10 tons or more per year ofany hazardous airpollutant which has been listed pursuant to section 112 (b) ofthe Federal Act, 25 Ormore tons peryear of any combination ofsuch hazardous airpollutants (including any major source offugitive emissions ofany such pollutant, as determined by rule by the Administrator), or such lesser quantity as the Administrator may establish by rule. Notwithstandingthe preceding sentence, hazardous emissions from any oil or gas exploration or production well (with its associated equipment) and hazardous emissions from any pipeline compressor orpump station shall notbe aggregated with hazardous emissions from other similar units, whether or not such units are in a contiguous area or under common control, to determine whether such units or stations are major sources. (b) Forradionuclides, "major source" shall have the meaning specified by the Administrator by rule. (2) A major stationary source ofair pollutants that directly emits or has the potential to emit, 100 ormore tons per year ofany airpollutant (including any major source of fugitive emissions ofany such pollutant, as determined by rule by the Administrator). The fugitive emissions ofa stationary source shall notbe considered in determining whetherit is a major stationary source for the purposes ofthis paragraph, unless the source belongs to one of the following categories ofstationary sourcesJ-;-] (a) Coal cleaning plants (with thermal dryers)H (b) Kraft pulp mills[tJ (c) Portland cementplants[-i"J (d) Primary zinc**smelters[~J** (e) Iron and steel millsrtJ (f) Primary aluminum are reduction plants[t] (g) Primary copper smelters[tJ (h) Municipal incinerators capable ofcharging more than 250 tons ofrefuse per**day[~J** (i) Hydrofluoric, sulfuric, or nitric acidplants[tJ G) Petroleum refmeries[;-] (k) Lime plants[tJ

20.2.70 NM.t\C Proposed Revisions Page 3 of18

### (1) Phosphate rockprocessing**plants[~]** (m) Coke oven batteries[-;-] (n) Sulfurrecoveryplants[;] (0) Carbon blackplants (furnace process)[;] (P) Primary lead**smelters[~]** (q) Fuel conversionplante;] (r) Sintering**plants[~]** 

### (s) Secondary metal production plants[;] (t) Chemical process plants[;] (n) Fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input[;] (v) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels[;] (w) Taconite ore processing plants[;] (x) Glass fiber processing plants[;] (y) Charcoal production plants[;] (z) Fossil fuel-fired steam electric plants ofmore than 250 millionBritish thermal units per hour heatinput[;]

. (aa) Any other stationary source category, which as ofAugust 7,1980 is being regulated under section III or 112 ofthe Federal Act. (3) .A major stationary source as defined inpart D oftitle I ofthe Federal Act, including: (a) [F]for ozone non-attainment areas, sources with the potential to emit 100 tons or more per year ofvolatile organic compounds or nitrogen oxides in areas classified as "marginal" or "moderate," 50 tons ormoreper year in areas classified as "serious," 25 tons or more per year in areas classified as "severe," and 10 tons or more per year in areas classified as "extreme"; except thatthe references in this paragraph to 100,50,25, and 10 tons per year of

. nitrogen oxides shall not apply withrespect to any source for which the Administratorhas made

a finding, under section 182(f)(1) or (2) ofthe Federal Act, that requirements under section 182(f) ofthe Federal Act do not apply; (b) [F]for ozone transport regions established pursuant to section 184 ofthe Federal Act, sources with the potential to emit 50 tons or more per year ofvolatile organic compounds; (c) [F]for carbon monoxide non-attainment areas (1) that are classified as "serious," and (2) in which stationary sources contribute signifIcantly to carbon monoxide levels as determined underrules issued by the Administrator, sources with the potential to emit 50 tons or more per yearofcarbon monoxide; and

. (d) [F]forparticulate matter (PM10)**non~attainrnent** areas classified as "serious," sources with the potential to emit 70 tons or more per year ofPM1 O. 

### R. flOperating [I!)12ermit" or IIpermitll (unless the conte;.,.'l suggests otherwise) means anypermit or group ofpermits covering a source that is issued, renewed, modified or revised pursuantto this Part. S. "Operator" means the person or persons responsible for the overall operation of a facility. T. IIOwnerfl means the person orpersons who ovm a facility orpart ofa facility.·

20.2.70 l\TMA.C Proposed Revisions Page 4 of 18

### U. "Part" means an air quality control regulation under Title 20, Chapter 2 ofthe NewMexico Administrative Code, unless otherwise noted; as adopted or amended bythe Board. V. "Pa.rt 70 

### source" means any source subjectto the permitting requirements ofu1is Part, as provided in 20.2.70.200 1\TMAC

- 20.2.70.299 NMAC.



# ... w. "Permit modification" means arevision to an operating pennit that meets the requirements ofsignificantpemiit modifications, minorpermitmodifications, or administrative pennit amendments, as defined in 20.2.70.404 NMAC. ' X. 

### "Permittee" means the ovvner, operator or responsible official at a permitted Part 70 source, as identified in any permit application or modification. Y. 

### "Portable**[8]~ource"** 

### means any plantthat is mounted on any chassis or skids and which'canbe moved by the application ofa lifting orpulling force. 

### In addition, there· shall be no cable, chain, turnbuckle, bolt or othermeans (except electrical connections) by which any piece ofequipment is attached or clamped to any anchor, slab, or structure, including bedrock, that mustbe removed priorto the application ofa lifting orpulling force for the purpose of transporting the unit. Portable sources may include sand and gravel plants, rock crushers, asphalt plants and concrete batchplants which meettills criteria Z. 

### "Potential to emit" means the maximum capacity ofa stationary source to emit any air pollutant under its physical and operational design. Anyphysical or operational limitation on the capacity ofa source to emit an 

### air pollutant, including airpollution control equipment and restrictions on hours ofoperation or on the type or amount ofmaterial combusted, stored, or processed, shall be treated as part ofits design ifthe limitation is federally enforceable. The potential to emit for nitrogen dioxide shallbe based on total oxides ofnitrogen. AA. 

### "Proposed permit" means the version ofa permitthat the [If]Qepartment proposes to issue and forwards to the Administrator for review in compliance with 20.2.70.402 Nl\1AC. AB. 

### "Regulated airpollutant" means the folloVving: (1) Nitrogen oxides, total suspended particulate matter, or any volatile organic compounds;(2) Any pollutant for which a national ambientair quality standard has been promulgated; (3) Any pollutant that is subjectto any standard promulgated under section 111 of the Federal Act; (4) Any Class I or II substance subject to any standard promulgated under or established by title VI ofthe Federal Act; or (5) Any pollutant subjectto a standard promulgatedunder section 112 or any other requirements established under section 112 ofthe Federal Act, including sections 112(g), 

### 0), and (r), including the following; (a) any pollutant subject to requirements under section 1120) ofthe Federal Act. Ifthe Administrator fails to promulgate a standard by the date establishedpursuantto section Il2(e) ofthe Federal Act, any pollutantfor which a subject source would be a major shall be considered to be regulated on the date 18 months after the applicable date established pursuant to section 112(e) ofthe Federal Act; and (b) any pollutant for which the requirements ofsection 112(g)(2) ofthe Federal Act have been met, but only**V\~th** respect to the individual source subject to a section 112(g)(2) requirement. AC. 

### "Renewal" means the process by which a pennit is reissued at the end ofits tenn.

20.2.70 NMA.C Proposed Revisions Page 5 of 18AD. irResponsible official" means one ofthe foUov,rillg: (1) For a corporation: apresident, secretary, treasurer, or vice-president ofthe corporation in charge ofaprincipal business function, or any otherperson who performs similar policy or decision-making functions for the corporation, or aduly authorized representative of suchperson 

### ifthe representative is responsible for the overall operation ofone ormore manufacturing, production, or operating facilities applying for or subjectto a permit and either a) the facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars), or b) the delegation ofauthorityto such representative is approved:in advance by the [PJ4epartment. (2) For a partnership or sole proprietorship: a general partner or the proprietor, respectively.

. (3) For a municipality, state, federal or otherpublic agency: either aprincipal execl?-tive officer orranking elected official. For the purposes ofthis Part, a principal executive officer ofa federal agency includes the chiefexecutive officerhaving responsibility for the overall operations ofa principal geographic unit ofthe agency (e.g., a Regional Administrator of US EPA). (4) Foran acid rain source: the'designatedrepresentative (as defined in section 402(26) ofthe Federal Act) in so far as actions, standards, requirements, orprohibitions under title IV ofthe Federal Act or the regulations promulgated thereunder are concerned, and for any otherpurposes under 40 CFR, Part 70. AE. 

### "Section 502(b)(10) 

### changes" are changes that contravene an express permit term. Such changes do not include changes that would violate applicable requirements or contravene permitterms and conditions that are monitoring (including test methods), recordkeeping, reporting, or compliance certification requirements. AF. 

### "Shutdown" means the cessation ofoperation ofany air pollution control equipment, process equipment or process for any purpose. AG. 

### "Solid waste incineration unit" means a distinct operating unit ofany facility which combusts any solid waste material from commercial or industrial establishments or the general public (including single and multiple residences, hotels, and motels). The term "solid waste incineration unit" does not include: (1) [f]1ncinerators or other units required to have a pennit under section 3005 of the federal SolidWaste Disposal Act; (2) [MJmaterials recovery facilities (including primary or secondfu; smelters) which combust waste for the primarypurpose ofrecovering metals; (3) [QJgualifying small power production facilities, as defined in section 3(17)(C) ofllie Federal Power Act (16 U.S.C. 796(17)(C)), or qualifying cogeneration facilities, as defined in section 3(18)(B) ofthe Federal Power Act (16 U.S.C. 796(18)(8)), which burn homogeneous waste (such as units whichburn tires or used oil, but not including refuse-derived. fuel) for the production ofelectric energy or in the case ofqualifying cogeneration facilities whichburn homogeneous waste for the production ofelectric energy and steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes; or (4) [AJWr curtain incinerators, provided that such incinerators only burn wood wastes, yard wastes and clean lumber and that such air curtainincinerators comply vvith opacity limitations established by the Administrator by rule.

20.2.70 NMAC Proposed Revisions Page 6 of 18AH. 

### "Startup l! means the setting into operation ofany air pollution control equipment, process equipment orprocess for any purpose.

_ Al. 

### "Stationary source" or 

### flsource" means any building, structure, facility, orinstallation, or any combination thereofthat emits or may emit any regulated 

### air pollutant or any pollutant listed under section 112(b) ofthe Federal Act. AJ. 

### "Subsidiary" means a business 'concern which is o-wned or controlled by, or is a partner of, the applicant orpermittee. AK. 

### "Temporary**[S]~ource"** means any plantthat is situated in one location for a period ofless than one year, after which 

### it will be dismantled and removedJrom its current site
orrelocated to a new site. A temporary source may be semi-permanent, whichmeans that is does not have to meet the requirements ofaportable source. Temporary sources may include well head compressors which meet this criteria. AL. 

### "Title I 

### (MJmodification" means any modification under sections 111 or 112 of the Federal Act and any physical change orchange 

### in method ofoperations that is subjectto the preconstruction regulations**promu~gated** under Parts C and D ofthe Federal Act.



### 20.2.70.300 PERMIT APPLICATIONS:

20.2.70 NMAC Proposed Revisions Page7of18A... Duty to**applY[7]~** For each Part 70 source, the o-vvner or operator shall submit a timely and complete permit application 

### in accordance Vilith this Part. E. Timely application. A timely application for a source applying for apermit under this Part is: (1) [F-Jfor first time applications, one that is submitted 'withintvvelve (12) IDonths after the source commences operation as a Part 70 source, or as established in the transition schedule outlined in paragraph (4) ofsubsection B of20.2.70.300 N1vfAC; , (2) [F-Jfor purposes ofpermitrenewal, one that is submitted at least tvvelve (12) months prior to the date ofpermit expiration[-:

## L (3) [¥]forthe acidrain portion ofpermit applications for initial Phase II acid rain sources under title IV ofthe Federal Act, by January 1, 1996 for sulfur dioxide, andby January 1, 1998 for nitrogen**oxides[7J~** (4) Transition schedule. A

.. timely application for a Part 70 source which is in operation on or befOre Deoember 19, 1995 is one that is submitted: (11) For sources, eKceptnatural gas processing plants, ';,rhich have been issued apermit, including apermitmodification, pursuantto 

### 20.2.72 'N1vfAC, 20.2.74 Nl\v\C, or 

### 20.2.791'lM:z.\C on or after J[llluary I, 1987, by February 

### 2, 1995, exceptthat persons ov.'Iling more than onesource

### in this category may submit applications for halfoftheir sources by February 2, 1995 and submitthe remaining applications by }.4arch 19, 1995; (b) For sources, eJcceptnatural gas processing plants, \vblch were issued a' permit, including apermitmodification, pursuantto 

### 20.2.72 NlvL/'"C,·20.2.74 

### >[MfLC, or 20.2.79 

### N14:i\C prior to January 1, 1987, by June 19, 1995; (c) For all other sources, by December 19, 1995. C. Completeness of**[AJ.wplication[7J~** (1) To be deemed complete, an application mustprovide all information required pursuant to subsection D of20.2.70.300 NMAC, except that applications for permit modifications need supply such information only ifit is related to the proposed change. (2) If, while processing an application, regardless ofwhether it has been determined or deemed to be complete, the [D]Qepartment determines that additional information is necessary to evaluate or take final action onthat application, it may request such information in writing and set areasonable deadline for a response. (3) Any applicantwho fails to submit any relevant facts or who has submitted incorrect information in apermit application or in a supplemental submittal shall, upon beconiing aware ofsuch failure or incorrect submittal, promptly submit such supplementary facts or corrected information. 

### In addition, an applicant shall provide further information as necessaryto address any requirements that become applicable to the source afterthe date it filed a complete application butprior to release ofa 

### draftpermit.

. (4) The applicant's ability to operate without

# a permit, as set forth in paragraph (2) ofsubsection A of20.2.70.20l NMAC, shall be 

### in effect from the date a timely application is submitted until the fmal permit is issued or disapproved, providedthat the applicant adequately submits any requested additional informationby the deadline specified by the [If]Qepartment. D. Content of[A],ill)plication[:-

# t Any person seeking a permit under this Part shall do so by filing a written application withthe [D]Qepartment. The applicant shall submit three (3) copies ofthe permit application, or more, as requestedby the [&lgepartment. An applicantmay not

### omitinformation needed to determine L.1.e applicability of, or to impose, any applicable requirement, or to evaluate the fee amount required under 20.2.71 :t\TM.-\C (Operating Permit

20.2,70 NMAC Proposed Revisions Page 8 of18Emission Fees). Fugitive emissions shall be included ill the permit application 

### in the same manner as stack emissions, regardless ofwhetherthe source categoryin question is included 

### in the list ofsources contained in the defInition ofmajor source. All applications shall[7] meetthe follmvinQ: requirements. (1) Be made on forms furnished by the [:Q-]gepartrnent, which for the acidrain portions ofpermit applications and compliance plans shall be on nationally-standardized forms to the extent required by regulations promulgated under title 

### TV ofthe Federal Act[;-]"-

. (2) Statethe company's name and address (and, ifdifferent, plantname and address), together with the names and addresses ofthe owner(s), responsible official and the operator ofthe source, any subsidiaries orparent companies, the company's state of incorporation orprincipal registration to do business and corporate orpartnership relationship to otherpermittees subjectto this Part, and the telephone numbers andnames ofthe owners' agent(s) and the site contact(s) familiar withplant operations[;-]"-

. (3) State the date ofthe application[;-]"-

. (4) Include a description ofthe source's processes andproducts (by Standard Industrial ClassifIcation Code) including any associated with alternative scenarios identified by the applicant, and amap, such as the 7.5 minute Topographic Quadrangle map published by the United States Geological Surveyorthe most detailed map available showing the exact location ofthe source. The location shall be identified by latitude and longitude or by UTM coordinates[;-1 (5) For all emissions ofall airpollutants for which the source is major and all emissions ofregulated airpollutants, provide all emissions information, calculations and computations for the source and for each emissions unit, except for insignificant activities (as defined in 20.2.70.7 N1'v1AC). This shall include: (a) [A].§; process flow sheet ofall components ofthe facility which would be involved in routine operations and emissions; (b) [I]identification and description of

### all emissions points in sufficient detail to establish the basis for fees and applicability ofrequirements ofthe state and Federal Acts; (c)**[:g]~missions** rates in tons per year, pounds per hour: and in such terms as are necessary to establish compliance consistent 'Vviththe applicable standard reference test method; (d) [S]§Pecific information such as that regarding fuels, fuel 

### use, raw materials, or production rates, to the extent it is needed to determine orregulate emissions; (e) [IJidentification and full description, including all calculations and the basis for all control efficiencies presented, ofair pollution control equipment and compliance monitoring devices or activities;

. (f) [+]!he maximum and standard operating schedules ofthe source, as well as any workpractice standards or limitations on source operation which affect emissions of regulated pollutants; (g) [Aa]ifrequested by the department an operational plan defining the measures to be taken to mitigate source emissions during startups, shutdo'WIls and emergencies; (h) [GJQtherrelevant information as the (DJgepartment may reasonably require or which are required by any applicablerequirements (including informationrelated to stackheight limitations developedpursuant to section 123 ofthe Federal Act); and

20.2.70 NMAC Proposed- Revisions Page90f18

### (i) [FJfor each alternative operating scenario identified by the applica.'1t, all ofthe information required in subparagraphs (a) through (h) abo.ve, as well as additional information determined to be necessary by the**[BJ.~epartment** to define such alternative operating scenarios[tt (6) Provide a list ofinsignificant activities (as defined in 20.2.70.7 

### NM.A.C) at the source, their emissions, to the extent required by the [&]4epartment, and any information necessary to determine applicable requirements[tt (1) Provide a citation and description ofall applicable airpollution control requirements, including:

. (a)**[.g]~ufficient** informationrelated to the emissions ofregulated air pollutants to verify the requirements that are applicable to the source; and (b)**[A]~** description ofor reference to any applicable test method for determining compliance**Vi~th** each applicable requirement[;-t (8) Provide an explanation ofany proposed exemptions from othenvise applicable**requirements[~l.** (9) Provide other specific information that may be necessary to implement and enforce other requirements ofthe state or Federal Acts orto determine the applicability ofsuch requirements, including information necessary to collect anypermit fees owed under 20.2.71 NMAC (Operating Permit Emission**Fees)[~l.** [(10) For applications

..... vhich are required underthe transition schedule in paragraph (4) ofsubsection B 0[20.2.70.300 l'{}'fAC, include a dispersion modeling analysis, using US EPA approved models andprocedures, showing whether emissions from the source would cause air pollutant concentrations 

### in excess ofany national ambient air quality standard. Airpollutants which are not emitted in significant (as defined in 40 CFR 52.21 (b)(23)(i)) amounts during routine operations need notbe modeled. (9:) This requirement shall not apply to the follov;ing: 

### Ei) i'£ Part 70 source issued a permitunder 20.2.72 N11l\C, 20.2.74 Nl\1AC, 20.2.79 l'J},MC after ':anumy 1, In6; or 

### Eli) A Part 70 source subjectto 20.2.14**l'~M/\:C,** 20.2.16 NMAC, 20.0.19 N},1AC, 20.2.31 l'{}'1l\.C, 20.2.32 N},1AC i[no physical or operational modifications that ha;r,'e resulted in increased particulate matter, sulfur djmade, or nitrogen made emissions have occurred since the time modeling was performed for that facility as part ofrevisions to those regulations. (b) The Department may waive modeling with respect to ozone ifthe Department determines that emissions from the source are not likely to cause ozone concentrations 

### in excess ofthe national ambient air quality standard.] [(!-!flQQl "Provide certification ofcompliance, including[-:] all ofthe folloWing. (a) A certification, by a responsible official consistent with subsection E of 20.2.70.300 NMAC, ofthe source's compliance status for each applicable requirement. For national ambient air quality standards. certifications shall be based onthe followin£. ei) For first time applications. this certification shall be based on modeling submitted with the application for a permit under 20.2.72 NMAC. eli) For permitrenewal applications. this certification shall be based on
. compliance with the relevantterms and conditions ofthe current operatin£ permit. (b) A statement ofmethods used for determining compliance, including a description ofmonitoring, recordkeeping, and reporting requirements and test methods[tl.

20.2.70 NMAC Proposed Revisions Page 10 of 18

### (c) A statementthat the source ViriU cont1.L"1ue to be in compliance vvith applicable requirements for willch itis 

### in compliance, and will, 

### ip. 

### atimely manner or at such schedule expresslyrequiredby the applicable requirement, meet additional applicable requirements thatbecome effective during the permittermH.:. (d) A schedule for submission ofcompliance certifications during the permit term, to be submitted no less frequently than annually, or more frequently ifspecifiedby the underlying applicable requirement orby the [ff]gepartment 

### [;-aool (e)

. A statementindicating the source's compliance status with any 

### enhanced monitoring aIld compliance certification requirements ofthe FederalAct. 

### [tR1J@ For sources that are notin compliance with all applicablerequirements atthetime ofpermit application, provide a complianceplan that contains-:- all ofthe following. (a) A description 0fthe compliance status ofthe source v,rith respectto all applicable requirementsH.:. (b) 

### A narrative description ofhowthe source mIl acilleve compliance mth such requir:ements for which itis not 

### in compliance[;-L (c) A schedule ofremedial measures, including an enforceable sequence of actions with milestones, leading to compliance mth such applicable requirements. The schedule ofcompliance shall be at least as stringentas that contained in any consent decree or administrative orderto whichthe source is subject, and the obligations ofany consent decree or administrative order shall notbe in any way diminished by the schedule ofcompliance. Any such schedule ofcompliance shall be supplemental to, and shall notprohibit the CD]4epartrnent from taking any enforcement action for noncompliance with, the applicable requirements on which it is based[;-L (d) A schedule for submission ofcertified progress reports no less frequently than every six (6) months[;--a:n41 (e) For the portion ofeach acid rain source subjectto the acidrain provisions oftitle 

### N ofthe Federal Act, the compliance plan contentrequirements specified in 

### this paragraph, except as specifically superseded 

### by regulations promulgated undertitle N ofthe Federal Act with regard to the schedule and methodes) the source mIl use to achieve compliance withthe acidrain emissions limitations. E. Certification[-:-J.:. Any document, including any application form, report, or compliance certification, submittedpursuantto this Part shall contain certificationby a responsible official oftruth, 

### accuracy, and completeness. This certification and any other certificationrequired under this Part shall state that, based on information and belieffomed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.


### 20.2.70.302 PERMIT CONTENT: A. Permit [Gl£onditionsH.:. (1) 

### The [ff}4epartment shall specify conditions upon apermit, including emission limitations and sufficient operational requirements and limitations, to assure compliance with all applicable requirements at the time ofpermit issuance or as specified in the approved schedule of compliance. The permit shall: (a) [F]for

### major sources, include all applicable requirements for all relevant emissions units inthe major source.

20.2.70 NMAC Proposed Revisions Page 11 of 18(b) W]for any non-major source subjectto 20.2.70.200 }"TJ\1AC

### 20.2.70.299 NMAC, include all applicable requirements which apply to emissioils units that cause the source to be subject to this Part. (c)**[&]~ecify** and reference the origin ofand authority for each tenn or condition, and identify any difference in form as compared to the applicable requirement upon which the term or condition is based; (d) [I]include a severability clause to ensure the continued validity ofthe various permit requirements inthe event ofa challenge to anY portions ofthe permit; (e) [IJinchide aprovision to ensurethat the permittee pays fees to the [ff)gepartment consistent with the fee schedule in 20.2.71 :NMAC (Operating Permit Emission Fees); and (f) [F)for purposes ofthe pennit shield, identify any requirement specifically identified in the pennit application or significant permit modification that the [If)gepartment has determined is not applicable to the source, and state the basis for any such determination

.. (2) Each permit issued shall, additionally, include provisions stating**[~)** the folloVv'ing. (a) The permittee shall comply with all terms and conditions ofthepermit. Any permitnoncompliance is grounds for enforcement action. In addition, noncompliance with federally enforceable permit conditions constitutes a violation ofthe Federal ActH"- (b) It shall notbe a defense for a permittee in an enforcement action that it would have been necessaryto halt or reduce the permitted activity in order to maintain compliance with the conditions ofthe permit[-;-t (c) The permitmay be modified, reopened and revised, revoked and reissued, or terminated for cause 

### in accordance with 20.2.70.405 NMAC[-;-l (d) The filing ofarequestby thepermittee for apermitmodification, revocation and reissuance, or termination, or ofa notification ofplanned changes or anticipated noncompliance shall not stay any permit conditionH.c (e) The permit does not convey any property rights ofany sort, or any exclusive privilege[-;-l (f) Within the period specified by the [ff]gepartment, the permittee shall furnish any information that the [If)gepartmentmay request in writing to determine whether cause exists for reopening and revising, revoking andreissuing, or termination ofthe permit orto determine compliance 'with the permit. Upon request, the permittee shall also furnish to the [P)gepartment copies ofrecords required by the permitto be maintained. (3) The terms' and conditions for all alternative operating scenarios identified in the application and approved by the [If]gepartment: (a) [&)§hall require thatthe permittee maintain a log at the pennitted facility

. which documents, contemporaneouslywith any change from one operating scenario to another, the scenario under which the facility is operating; and (b) [&)§hall, for each such alternative scenario, meet all applicable requirements and the requirements ofthis Part. (4) The (p)gepartment may impose conditions regulating emissions during startup and shutdown. (5) All permit terms and conditions which are required under the Federal Act or under any ofits applicable requirements, incl1)ding any provisions designed to limit a source's potential to emit, are enforceable by the Administrator and citizens under the Federal Act. The

20.2.70 NMAC Proposed Revisions Page 12 of18permit shall specifically designate as not being federally enforceable under the Federal Act any terms or conditions included in the permit that are not required u,nderthe Federal Act or under 

### any ofits applicable requirements. (6) The issuance ofapermit, orthe filing or approval ofa compliance plan, does notrelieve any person from civil or criminal liability for failure to comply with the provisions of the Air Quality Control Act, the Federal Act, federal regulations thereunder, any applicable regulations ofthe Board, and any other applicable law orregulation. (7) The [D]Qepartrnent may include part or all ofthe contents ofthe application as terms and conditions ofthe permit or permit modification. The [D]Qepartment shall not apply permitterms and 'conditions upon emissions ofregulatedpollutants for which there are no applicable requirements, unless the source is major for thatpollutant. (8) Fugitive emissions from a source shall be included in the operating permit in the same manner as stack emissions, regardless ofwhether the source category in question is included in the list ofsources contained inthe definition ofmajor source. (9) The acidrain portion ofoperating permits for acid rain sources shall additionally: (a)**[&]~tate** that, where an applicable requirement ofthe Federal Act is more stringent than an applicable requirement ofregulations promulgated under title IV ofthe Federal Act, bothprovisions shall be incorporated into the permit and shall be enforceable by the Adrninistrator[7]; and (b)**[GJ.~ontain** apermit conditionprohibiting emissions exceeding any allowances thatthe acid rain source la"Wfully holds under title IV ofthe Federal Act or the regulations promulgated thereunder. No permitmodificationunder this Part shall be required for increases in emissions that are 'authorized by allowances acquired pursuantto the acid rain program, provided that such increases do not require a permit modification under any other applicable requirement. No limit shall be placed on the number ofallowances held bythe acid rain source. The permittee maynotuse allowances as a defense to noncompliance with any other applicable requirement. Any such allowance shall be accounted for according to the procedures established inregulations promulgated under title IV ofthe Federal Act. 

### B. Pennit [D]Quration[:].:. The [Qlctepartment shall issue operating permits for a fixedterm offive (5) years. C. Monitoring[:-

# t (1) Each permit shall contain all emissions monitoring requirements, and analysis procedures or testmethods, required to assure and verify compliance with the terms and conditions ofthe permit and applicable requirements, including any procedures and methods promulgated by the Administrator. (2) Where the applicable requirement does notrequire periodic testing or instrumental or noninstrumental monitoring (which may consist ofrecordkeeping designed to serve as monitoring), the permit shall require periodic monitoring sufficient to yield reliable data from the relevant time period that are representative ofthe source's compliance with the permit, as reported pursuant to subsection E of20.2.70.302 NMAC. Such monitoring requirements shall assure use ofterms, test methods, units, averaging periods, and other statistical conventions consistentwith the applicable requrrement. (3) The pennit shall also contain specific requirements concerningt.'J.e use, maintenance, and, when appropriate, installation ofmonitoring equipment or methods. D. RecordkeepingH.:.

20.2.70 NMAC Proposed Revisions Page 13 of18(1) The permit shall require recordkeeping sufficientto assure and verify compliance 

### 'With the terms and conditions ofthe permit, including recordkeeping. of: (a) [+]ihe date, place as defined in the permit, and time ofsampling or measurements; (b) [+]ihe date(s) analyses were perfonned; (c) [+]1he company or entity thatperformed the analyses; (d) [+]!he analytical techniques or methods used; (e)**[+]!h~** results ofsuch analyses; and 

### (f) [+]1he operating conditions existing atthe time of**s~pling** or measurement. (2) Records ofall monitoring data and support information shall be retained for a period ofat least five (5) years from the date ofthe monitoring sample, measurement, report, or application. Supporting information includes all calibration and maintenance records and all original strip-chartrecordings for continuous monitoring instrumentation, and copies ofall reports required by the permit. E. Reporting[-:-].=. The permit shall require reporting sufficientto assure and verify compliance with the terms and conditions ofthe permit and all applicable requirements, including[-;-] all oime following. (1) Submittal ofreports ofany required monitoring at least every six (6) months. The reports shall be due to the [I)]gepartrnent 

### 'Within forty-five (45) days ofthe end ofthe permittee's reporting period. All instances ofdeviations from permitrequirements, including emergencies, must be ciearly identified in suchreports. All required reports must be certified by
a responsible official consistentwith subsectionE of20.2.70.300 1'-lMAc[;l (2)

. Prompt reporting ofall deviations (including emergencies) from permit requirements, including the date, time, duration and probable cause ofsuch deviations, the quantity and pollutanttype ofexcess emissions resulting from the deviation, and any corrective actions or preventive measures taken. Such reports shall include telephone, verbal or facsimile communication within twenty-four (24) hours ofthe start ofthe next business day and v,rritten notification Virithin ten (1 0)**days[~].=.** (3) Submittal ofcompliance certification reports at least every twelve (12) months (ormore frequently ifso specified by an applicable requirement) certifying the source's compliance status with [all permit] terms and conditions contained inthe permit [and all applicable requirements relevantto the source], including [those related to] emission**limitations~** standards, or workpractices. The reports shall be due to the [I)]Qepartmentwithin thirty (30) days ofthe end ofthe permittee'sreporting period. Such compliance certifications shall be submittedto the Administrator as well as to the [:Q-]4epartment and shall include: (a) [+]1he identification ofeach term 9r condition ofthe permitthat is the basis ofthe certification; (b) [+]!he compliance status ofthe source; (c) [:w:Jwhether compliance was continuous or intermittent; (d) [+]!he methodes) used for determining the compliance status ofthe source, currently and during the reporting period ideJ;ltified in the permit; and (e)**[S]~uch** other facts as the [:Q-]gepartmentmay require to determine the compliance status ofthe**source[-;--aB€l]~** (4) Such additional provisions as may be specified by w.1.e Administrator to determine the compliance status ofthe source.

20.2.70 NMAC ProposedRevisions Page 14 of18F. Portable and Temporary Sources[:-l. Tne**~JQepartment** may issue permits for portable and temporary sources which allow such sources to relocate without undergoing a pennit modification. Suchpermits shall not apply to acid rain sources and snail include conditions to assure that: (1)**[+]~e** source is installed at all locations in amanner conforrrJing "withthe pennit; (2)**[+]~e** source shall comply with all applicable requirements and all other provisions ofthis Part at all authorized locations; (3) [+]!he o-owner or operator shall notify the [DIQepartment in writing at least fifteen (15) calendar days in advance ofeach change in location; (4) [NJgotification shall include a legal description ofwhere the source is to be relocated and how long itwill be located there; and (5)**[:g]~missions** from the source shall not, at any location, result in or contribute to an exceedance ofa national ambient air quality standard or increment or visibility reqUirement under Part C oftitle I ofthe FederaJ. Act. The cP]gepartmentmay require dispersion modeling to assure compliance at any location.

. G. Compliance[.;.]", To assure and verify compliance with the tenns and conditions of the permit and withthis Part, pennits shall also[.;.] include all the following. (1) Require that, uponpresentation ofcredentials and other documents as may be required by law, the permittee shall allow authorized representatives ofthe [&]gepartmentto perfonn the following: (a)**[B]~nter** upon the permittee's premises where a source is located or emission related activity is conducted, or where records mustbe keptunder the conditions ofthe permit; (b) CHJhave access to and copy any records thatmust be keptunderthe conditions ofthe permit; (c) [±]inspect any facilities, equipment (including monitoring and air pollution control equipment), practices, or operations regulated or required under the permit; and (d)**[S]~ample** or monitor any substances orparameters for the purpose of assuring compliance with the permit or applicable requirements or as otherwise authorized by the Federal Act.(2) Require that sources required underparagraph (12) ofsubsection D of 20.2.70.300 NMAC to have a schedule ofcompliance submitprogress reports to the**~]gepartrnent** at least semiannually, or more frequently ifspecified 

### in the applicable requirement orby the [D]gepartment. Suchprogress reports shall be consistent with the schedule ofcompliance and requirements ofparagraph (12) ofsubsectionD of20.2.70.300 NMAC and shall contain: (a) [&]gates for achieving the activities, milestones, or compliancerequired 

### in the schedule ofcompliance, and dates when such activities, milestones or compliance were achieved; and (b)**[A]~** explanation ofwhy any dates in the schedule ofcompliance were not or "VvilJ not be met, and anypreventive or corrective measures adopted. (3) Include such otherprovisions as the [D]gepartrnentmay require. H. Operational Flexibility[.;.l

. (1) Section 502(b)(1 0) Changes

20.2.70 NM..6"C Proposed Revisions Page 15 of 18(a) Thepermittee may make section S02(b)(1 0) changes, as defIned in 20.2.70.7 NlV1AC, without applying for apennit modification, ifthose changes are nottitle I modifications and the changes do not**caus~** the facility to exceed the emissions allowable under the permit (whether expressed as arate ofemissions or in terms oftotal emissions). (b) For each such change, thepermittee shall provide written notification to the [ff]gepartrnent and the Administrator at least seven (7) days in advance oftheproposed changes. Such notification shall in,clude abriefdescription ofthe change vlithin the permitted facility, the date on which the change will occur, any change in emissions, and any permitterm or condition that is no longer applicable as aresult ofthe change. (c) The permittee and [Jd-]gepartment shall attach each such notice to their copy ofthe relevantpermit. (d) 

### Ifthe 'written notification and the change qualifyunder this provision, the permittee is notrequired to comply with the permitterms and conditions it has identifiedthat restrict the change. Ifthe change does not qualify under this provision, the original terms ofthe permit remain fully enforceable. (2) Emissions trading within a facility[-:-l (a) The [&]gepartment shall, ifan applicantrequests it, issue permits that contain terms and conditions allowing for the trading ofemissions increases and decreases in the permitted facility solely for the purpose ofcomplying with a federally enforceable emissions cap thatis established in the permitin additionto any applicable requirements. Such terms and conditions shall include all terms and conditions required under 20.2.70.302 N1v1AC to**det~rmine** compliance. Ifapplicable requirements apply to the requested emissions trading, permit conditions shall be issued only to the extentthatthe applicable requirements provide for trading such increases and decreases without a case-by-case approval. (b) The applicant shall include in the application proposed replicable procedures andpermitterms that ensure the emissions trades are quantifiable and enforceable. The [I}]gepartment shall not include inthe emissions trading provisions any emissions units for which emissions are not qtlantmable orfor which there are no replicable procedures to enforce the emissions trades. The permit shall require compliance with all applicable requirements. (c) For each such change, the permittee shall provide written notification to the [ff]gepartment and the Administrator at least seven (7) days 

### in advance ofthe proposed changes. Such notification shall state when the change will occur and shall describe the changes in emissions thatwill result and how these increases and decreases in emissions will complywith the terms and conditions ofthe permit. (d) Thepermittee and [±}]gepartment shall attach each such notice to their copy ofthe relevantpermit. 

### I. Off-Permit Changes[-:-l (1) Permittees are allowedto make, v,rithout apermitmodification, changes that are not addressed orprohibited by the operating permit, if: (a)**[BJ~ach** such change meets all applicablerequirements and shall not violate any existing permitterm or condition; (b)**[.g]~uch** changes are not subjectto any requirements under title IV ofthe Federal Act and are nottitle I modifications; (c)**[.gJ~uch** changes are not subjectto pennitmodificationprocedures under 20.2.70.404 N1VlA.C; and

20.2.70 NMAC Proposed Revisions Page 16 of 18

### (d) [+]!he permitteeprovides contemporaneous 'written notice to the [D]4epartrnent and US EPA ofeach such change, except ror changes that qualify as insignificant acti·vities. Such vn1tten notice shall describe each such change, including the date, any change in 

### emissions, pollutants emitted and any applicable requirementthat would apply as a result ofthe change. (2) The permittee shall keep arecord describing changes made atthe sourcethat result in emissions ofaregulated airpollutant subjectto an applicable requirement, butnot otherwise regulated under the permit, and the emissions resulting from those changes. J. Permit Shield[:-l (1) Except as provided in this Part, the [D]gepartment shall expressly include in a Part 70 (20.2.70 NMAC) permit aprovision stating that compliance with the conditions ofthe permit shallbe deemed compliance with any applicable requirements as ofthe date ofpermit issuance, provided that: (a)**[£-]~uch** 

### applicable requirements are included aiid are specifically identified inthe permit; or (b) [:f]1he [Ii-J4epartment, in acting on the permit application or significant permitmodification, determines in writing that otherrequirements specifically identified are not applicable to the source, and the permit includes the determination or a concise summary thereof. (2) A Part70 (20.2.70 1\TMAC) permitthat does not expressly statethat apermit shield exists for a specific provision shall be presumed not to provide such a shield for that proVISIOn. (3) Nothing in this section or in any Part 70 (20.2.70 NMAC) permit shall alter or affect the follmving: (a) [+]1he provisions ofsection 303 ofthe Federal Act

-- Emergency Powers, including the authority oftheAdministrator under that section, or the provisions ofthe NewMexico Air Quality Control Act, section 74-2-10 NMSA 1978; (b) [+]the liability ofan O¥iner or operator ofa sourcefor any violation of applicable requirements prior to or at the time ofpermit issuance; (c) [+]!he applicable requirements ofthe acid rain program, consistent with section408(a) ofthe Federal Act; or (d) [:f]the· ability ofUS EPA to obtain information from a source pursuant to section 114 ofthe Federal Act, orthe [Ii-]gepartmentto obtain information subj"ectto the New Mexico Air Quality Control Act, section 74-2-13 NMSA 1978. (4)

. The permit shield shall remain in effect ifthe permit terms and conditions are extended pastthe expiration date ofthe permitpursuantto subsection D of20.2.70.400 NMAC. (5) 

### Thepermit shield shall extend to terms and conditions that allow emission increases and decreases as part ofemissions hading within afacility pursuantto paragraph (2) of subsection H of20.2.70.302 NMAC, and to all terms and conditions under each operating scenario includedpursuantto paragraph (3) ofsubsection A of20.2.70.302 NMAC. (6) 

### The permit shield shall not extendto administrative amendments under subsectionA of20.2.70.404 NMAC, to minor permitmodifications under subsection B of 20.2.70.404l\TMAC, to section 502(b)(lO) changes under paragraph (1) ofsubsection H of 20.2.70J02l\TMAC, orto permit terms or conditions for which notice has been givento reopen orrevoke all orpartunder 20.2.70.405 NMAC.

20.2.70 NMAC Proposed Revisions Page 17 of 1820.2.70.304 EMERGENCY PROVISION[i-l:. A. An "emergency" means any situation arising from sudden and reasonably unforeseeable events beyond the control ofthe permittee, including acts ofGod, which situation requires immediate corrective action to restore normal operation, and that causes the source to exceed a technology-based emission limitation under the permit due to unavoidable increases in emissions attributable to the emergency. An emergency shall not include noncompliance to the eArtent causedby improperly designed equipment, lack ofpreventive maintenance, or careless or improper operation. B. An emergency constitutes an affirmative defense to an action broughtfor noncompliance with suchtechnology-based emission limitations ifthe permittee has demonstrated through properly signed, contemporaneous operating logs, or otherrelevant evidence that: (1) An emergency occurred and thatthe permittee can identify the cause(s) ofthe emergency; (2) The permitted facility was atthe tiine being properly operated; (3) During the period ofthe emergency the permittee took all reasonable steps to minimize levels ofemissions that exceeded the emission standards or other requirements in the permit; and(4) The permittee fulfilled notification requirements underparagraph (2) of subsection E of20.2.70.302 NMAC. This notice must contain a description ofthe emergency,- any steps taken to mitigate emissions, and corrective actions taken. C. In any enforcementproceeding, the permittee seeking to establishthe occurrence ofan emergency has the burden ofproof. 

### D. This provision is in addition to any emergency orupsetprovision contained 

### in 

### any applicable requirement[, except that Part 70 sourcessrroll not be subjeet to the provisions of 20.2.7 }J}.MC (Excess Emissions during Malfunction, Star---tup, Shutdovm, or Scheduled Maintenance) for pennitterms and conditions issued under 20.2.70 

### }JA,MC].

20.2.70 NMAC Proposed Revisions Page 18 of 18

### Tne Departmentproposes that the Board adoptthe following revisions to 20.2.3 NMAC- .-\mbient

### Air Quality Standards.


### 20.2.3.9 LIMITATION OF APPLICABILITY TO 20.2.70 

### l\TM-4..c. The requirements oftbis part are not applicable requirements under 20.2.70 

### NIviAC. as defined bvthatpart. This section does not limit the applicability offris partto sources requiredto obtain apermitooder 

### 20.2.72 NVlAC. 

### nor does it limit whichterms and conditions ofpermits issued pursuantto 20.2.72 NMAC are applicablerequirements for permits issuedpursuantto 20.2.70 N11AC. [20.2.3.9} 20.2.3.10 to 

### 20.2.3.107 [RESERVED]

NMED EXH·18IT #38Tne Depa..'imentproposes thatthe Board adoptthe follov-ri...ng re"visions to 20.2.72 NMACConstruction Permits.


### 20.2.72.216 NONATTAINM:ENT AREA REQUIREMENTS: A. The requirements oftbis section apply to: 

### (1)

. A new SOUTce or modification ofan existing SOUTce that 

### [wE±e!:I] will emit a regulated air contaminant such thatthe ambient impact ofthe contarrlli"1antwould exceed the significant ambient concentration 

### in 20.2.72.500 NMAC, Table 1, at any location that does not meetthe New Mexico Ambient

### Air Quality Standard for the contaminant; 

### [ef] (2) A new SOUTce or modification ofan existing SOUTce that 

### [:wfii.efi] is not amajor stationary SOUTce ormajor modification as defined in 20.2.79 NMAC and 

### [¥fl:rieh] that v,rill emit a regulated air contarillnant suchthatthe ambient impact ofthe contaminantwould exceed the significant ambient concentration 

### in Table 1 at any location that does notmeet the National

. Ambient 

### Air Quality Standard for the contaminant[-:] ; or (3) 

### An existing SOUTce that does not propose an increase 

### in emissions and that will emit a regulated air contaminant such thatthe ambient impact"ofthe contaminant would exceed the significant ambient concentration in 20.2.72.500 NMAC (Table 1) at any location that does notmeetthe national orNew Mexico ambient air quality standard for the contaminant. 

### B. A new SOUTce ormodification ofan existing SOUTce subjectto this section shall offsetthe ambient impact ofits emissions by: (1) Obtaining emission offsets forproposed emissions in an amount greaterthan one-to-one such that a net air qualitybenefit will occur; and " (2) Ensuring emission offsets are quantifiable, enforceable, and permanentby meeting the following sections of20.2.79 NMAC: 

### (a.) 20.2.79.114 NMAC (Emission Offset Baseline) (b) 20.2.79.115 NMAC(Emission Offsets) (c) 20.2.79.117NMAC (Air Quality Benefit) 

### C. An existing source that is subjectto this section shall demonstrate anet air quality benefit ofat least a 20 percentreduction in ambient impactfor each applicable contaminant. The 20 percent reduction shall be calculated as the projected source impact subtracted from the existing source impact divided by the existing source impact. The net air quality benefitmust also meet the requirements of20.2.79.117 NMAC (Air Qualitv Benefit).

NMED EXHIBIT #3CTrujillo. Rita. NMENV
Distribution List Name: Stakeholder List

Members: A.S. Shankar (ANAN@dynegy.com) Amy Welch (amYJl_we/ch@yahoo.com) Andy Nowak (anowak@cybermesa.com) Andy Price (andy.price@elpaso.com) Ann Wagner (awagne@motycorp.com) Anna Garcia (agarcia@getf.org) Annabelle Allison (aallison@aqcp.com) ANAN@dynegy.com amYJl_welch@yahoo.com anowak@cybermesa.com andy.price@elpaso.com awagne@molycorp.com agarcia@getf.org

BUddy Shaw (shawbd@bp.com) Cliff Larsen (ziti1 @juno.com) Cris Casti}lo (castilloc@epenergy.com) aallison@aqcp.com Anthony Walker (awalker@ppco.com) awalker@ppco.com Barbara Walz (barwal@tristategtorg) barwal@tristategtorg Barry Holman (bholman@gianlcom) bholman@giant.com Becky Moore (bead@chevron.com) bead@chevron.com Ben Luce (Iucein@cybennesa.com) lucein@cybennesa.com Beth Janello (bjanello@sandiapueblo.nsn.us) bjanello@sandiapueblo.nsn.us Bill Blankenship (billx@Janl.gov) billx@/anl.gov Bill Jaco (billj@misspotash.com) billj@misspotash.com Bill Scott (bscott@modrall.com) bscott@modrall.com Bill Underwood (bu@gknetcom) bu@gknetcom Billy Claxton (billy.c1axton@holloman.af.mil)billy.claxton@holloman.af.mil Bob Andreoli (andreolr@wsmr.anny.mil) andreolr@Wsmr.army.mil Bob Holdeman (bholdeman@csra.com) bholdeman@csra.com Brian Braden (bbraden@nmia.com) bbraden@nmia.com Brinda Ramanathan (serafinatech@plateautel.net) serafinatech@plateautel.net

. Bruce Gantner (Bgantner@BR-inc.com) Bgantner@BR-inc.com Bruce Nicholson (BrucNichol@aol.com) BrucNichol@aol.com Bryon Chandler (Byron.L.Chandler@conocophillips.com) Byron.L.Chandler@conocophillips.com shawbd@bp.com ziti1@juno.com castilloc@epenergy.com Curtis DeVore (cdevore@trinityconsultants.com) cdevore@trinityconsultants.com Dan Conway (con_engr@itis.com) con_engr@itis.com Dan Frich (dfrich@foamex.com) dfrich@foamex.com Daniel Salgado (dan_salgado@kindermorgan.com) dan_salgado@kindennorgan.com Daniel Schnee (daniel.schnee@elpaso.com) daniel.schnee@elpaso.com Danna Dewlen (dewl@chevron.com) dewl@chevron.com Daphne Economou (deconomou@liaise.org) deconomou@fiaise.org daron page (page.daron@epamail.epa.gov)page.daron@epamail.epa.gov Dave Baker (bakerenv@swcp.com) bakerenv@swcp.com Dave Strasser (faithinc@flash.net) faithinc@flash.net David Bays (david.bays@wi.lliams.com) david.bays@williams.com David Hacker (david_hacker@crux.nmhu.edu) david_hacker@crux.nmhu.edu

1
NMED EXHIBIT #4Jerry Jordan Uerry@hfboperating.com) David Martineau (dmartineau@kmg.com) dmartineau@kmg.com David Neleigh (neleigh.david@epamail.epa.gov) neleigh.david@epamail.epa.gov Dawn Meyers (dawn_meyers@kindennorgan.com) dawn_meyers@kindermorgan.com Dean Kaster (dkaster@kcsenergy.com) dkaster@kcsenergy.com Dean Metcalf (dean.metcalf@Xcelenergy.com) dean.metcalf@Xcelenergy.com Debbie Beaver (debbie.beaver@williams.com) debbie.beaver@williams.com Deborah Seligman (seligman@nmoga.org) seligman@nmoga.org Dennis Vaughn (drvaughn@phelpsdodge.com) drvaughn@phelpsdodge.com Don Whaley (don@navajo-refining.com) don@navajo-refining.com Don White (don.white@cannon.af.mil) don.white@cannon.af.mil Dorinda Mancini (dmancini@giant.com) dmancini@giant.com Doug Meiklejohn (dmeiklejohn@nmelc.org)dmeiklejohn@nmelc.org Doug Price (doug.price@navajo-refining.com) doug.price@navajo-refining.com Ed Hasely (Ihasely@br-inc.com) Ihasely@br-inc.com Ed Lasnik (elasnik@tristategt.org) elasnik@tristategt.org Frank Gallegos (frank.e.gallegos@intel.com) frank.e.gallegos@intel.com Frank Kenney (kenneyconsulting@Zianetcom) kenneyconsulting@Zianet.com Frank Kozeliski (fakoz@cia-g.com) fakoz@cia-g.com Frank Scott (fscott@avoniteinc.com) fscott@avoniteinc.com Gale Henslee (gale.henslee@xcelenergy.com) gale.henslee@xcelenergy.com Gary Henderson (gary.henderson@erm.com) gary.henderson@erm.com Gary Hofferber (Gary_Hofferber@kne.com)Gary_Hofferber@kne.com George Zanter (gzanter@herzogcompanies.com) gzanter@herzogcompanies.com Herb Harless (hharless@sidrich.com) hharless@sidrich.com Hugh Church (churchhw@aol.com) churchhw@aol.com Israel Tavarez (itavarez@cabq.gov) itavarez@cabq.gov J.D. Bullington Odaci@aol.com) jdaci@aol.com Jack Braun Oebraun@duke-energy.com) jebraun@duke-energy.com**J~:tna** McDonald (Jana.McDonald@oldcastiematerials.com) Jana.McDonaId@oldcastlematerials.com JarrettAirhart (nja@soudenniller.com) nja@soudermiller.com Jay Drybread Oay.drybread@honeywell.com) jay.drybread@honeywell.com Jeanne Bassett Ubassett@nmpirg.org) jbassett@nmpirg.org Jennifer Goldman Uennifergoldman@ogap.org) jennifergoldman@ogap.org Jennifer Knowlton jknowlton@ypcnm.com Jerry Hereden Oerry.hereden@williams.com) jerry. hereden@williams.com jerry@hlboperating.com Jerry Walker Uwalker@tristateglorg) jwalker@tristategt.org Jim Abbey (Jim.Abbey@dvn.com) Jim.Abbey@dvn.com Jim Jordan Qjordan@wm.com) jjordan@wm.com Jim Luther (James.G.Luther@Bhpbiliiton.com) James.G. Luther@Bhpbilliton.com JoAnn Cobb Ocobb@bjservices.com) jcobb@bjservices.com 2Lori Suppes (Isuppes@tristategt.org) Louis Rose (Irose@montand.wm) Margaret Lowe (lowemj1@bp.com) Mark Asoian (asoian@vail.net) Mark Bareta (mark.bareta@williams.com) John Bartlit Urbartlit@aol.com) jrbartHt@aol.com John Cofer Uohn.e.cofer@usa.conoco.com) john.e.cofer@usa.conoco.com John Hudspeth (john.hudspeth@Xcelenergy.com) john.hudspeth@Xcelenergy.com Joni Arends Oarends@nuclearactive.org) jarends@nucfearactive.org Joshua Epel Obepel@duke-energy.com) jbepel@duke-energy.com Joyce Miley Ooyce.m.miley@conocophillips.com) joyce.m.miley@conocophillips.com Karl Tonander (ket@millereng.com) ket@millereng.com Ken Havens (Ken_Havens@kindermorgan.com) Ken Havens@kindermorgan.com Krishan Wahi (kkwahi@graminc.com) kkwahi@graminc.com Kristen Howell (kristen.howell@williams.com) kristen.howell@williams.com Kristin Koblis (kmkoblis@duke-energy.com)kmkoblis@duke-energy.com Larry Mapes (eljm@hometownenergy.com)eljm@hometownenergy.com Larry Messinger (Imessinger@peabodyenergy.com) Imessinger@peabodyenergy.com Isuppes@tristategtorg Irose@montand.com lowemj1 @bp.com asoian@vail.net mark.bareta@williams.com Mark Hiles (mhiles@peabodyenergy.com) mhiles@peabodyenergy.com Mark Rodriguez (mrodrig 1 @elpasoelectric.com) mrodrig1@elpasoelectric.com Michael Mack (mmack@ameramex.com) mmack@ameramex.com Michael Porto (michael.porto@holloman.af.mil) michael.porto@holloman.af.mil Mike Ratte (michael_ratte@urscorp.com) michael_ratte@urscorp.com Nancy Norem (nnorem@pnm.com) nnorem@pnm.com Naomi Cortez (cortezn@epenergy.com) cortezn@epenergy.com Nathan Cote (nathan.cote@holloman.af.mil) nathan.cote@holloman.af.mil Neal Butt (nbutt@cabq.gov) nbutt@cabq.gov Nick Kasperik (nkasperik@peabodyenergy.com) nkasperik@peabodyenergy.com Pat Nelson (nelsonconsulting@qwest.net) nelsonconsulting@qwest.net Patrick Josey (Patrick.Josey@elpaso.com) Patrick.Josey@elpaso.com Paul Wade (pwade@classonetech.com) pwade@classonetech.com Peter Botes (botespj@texaco.com) botespj@texaco.com PNM Raton (rps@bacavalley.com) rps@bacavalley.com Preston Batula (pbatula@hanover-co.com) pbatula@hanover-co.com Ralph Gruebel (gruebel@graminc.com) gruebel@graminc.com Ralph Williams (rwilfiams@classonetech.com) rwilliams@classonetech.com Randy Brogdon (RZB@gknet.com) RZB@gknet.com Randy Moorman (nmpirg@pirg.org) nmpirg@pirg.org Reid Allan (rsa@millereng.com) rsa@millereng.com Rex Ishmael (rex.ishmael@haHiburton.com)rex. ishmael@halfiburton.com Richard Duarte (ricardo.duarte@elpaso.com) ricardo.duarte@elpaso.com 3Richard Virtue (wirtue@virtuelaw.com) wirtue@virtuelaw.com Rick Moore (moore@grandcanyontrust.org)moore@grandcanyontrust.org Rick Simmons (rsimmons@herzogcompanies.com) rsimmons@herzogcompanies.com Rob Clifford (rcliffor@apsc.com) rcliffor@apsc.com Rob Liles (RLiles@trinityconsultants.com) RLiles@trinityconsultants.com Rod Ventura (rventura@nmelc.org) rventura@nmelc.org Ron Dutton (Ron.Dutton@xcelenergy.com) Ron. Dutton@Xcelenergy.com Ron LePlatt (rleplatt@westerngas.com)
Russ Stokes (rstokes@cghtomato.com) Russell Coryell (rcoryell@epelectric.com) Sam Cudney (sam@ensewice.com) Sandra Miller (sandra.miller@elpaso.com) rleplatt@westerngas.com rstokes@cghtomato.com rcoryell@epelectric.com sam@ensewice.com

SOliver@hanover-co.com sgvail@imcglobal.com skennedy@giant.com sheary.culp@valero.com sandra.miller@elpaso.com Sara Hutson (shutson@waid.com) shutson@waid.com Sarah Chavez (sarah.t.chavez@intel.com) sarah.t.chavez@intel.com spiltch@nmelc.org shonan@molycorp.com Sarah Piltch (spiltch@nmelc.org) Scott Honan (shonan@molycorp.com) Scott Oliver (SOliver@hanover-co.com) Scott Vail (sgvaiJ@imcglobal.com) Sharon Kennedy (skennedy@gianlcom) Sheary Culp (sheary.culp@valero.com) Sheri Kolowski (scrite@cybermesa.com) scrite@cybermesa.com sherron (sherron@oglebay.onco.com) sherron@oglebay.onco.com Sonia Phillips (sonia.phillips@xcelenergy.com) sonia.phillips@Xcelenergy.com Stan Curry (JSC@gknet.com) JSC@gknet.com Stuart Faith (fei@f1ash.net) fei@f1ash.net Terry Christian (terry.christian@warren-equipment.com) terry.christian@warren-equipment.com Terry Nelson (tnelson3@wm.com) tnelson3@wm.com Tom Hutchins (hutchinst@epenergy.com) hutchinst@epenergy.com Tommy Arnwine (ArnwiTH@ldng.com) AmwiTH@ldng.com Tony Dorame (tpenviron@aol.com) tpenviron@aol.com Victoria Brind'Amour (vicky.brindamour@sca.com) vicky.brindamour@sca.com Vijay Kurki-Gowdra (vkurkigowdra@marathonoil.com) vkurkigowdra@marathonoil.com W.K. Keenan (wkkeenan@equilon.com) wkkeenan@equilon.com Wayne Leipold (wleipold@phelpsdodge.com) wleipold@phelpsdodge.com William C.B. Underwood (bu@gknet.com) bu@gknet.com

4NAl\1E 

### STATE STANDARDS, 8JANUARY 01 ORGANIZATION TELEPHONE E-MAIL 1$_ 

## -;J}!.Jr 

### A-J}

### I~ k 

### e;V/f1

### ~f/. J IZ. "t/A.«.:

### ~4' ?,.-t,v 

### .:L 

## w yVl , C

..l ,n...,NAIvlE STATE STANDARDS, 8 JANUARY 01 ORGANIZATION TELEPHONE E-M.A:Q 

# L(1 Id-1CI 11,;--tZ= 

# tv;**1!~,~tiJ** 

# IUI/LrI -(6'05") 

# C 

# c;

# s-(2. t.IV 

# .**~)** 

# L ' 1/f1t;'f!'£' '/ tlh 

### If t'--iJV 

# ,\r1nri'1 //h( Nt{/GDI**A(}/~ !X)~.-**  

### C)C;5-f){)'86**,~l\9:r !1'\~1~**  

### (**~;1tY)eY)** V •

## stafe

.nfh 

### .lJe IJ.llC"\I{ I'll,. {to

## fv1/~~~} for 

# 10 CKM '5r)5',- '2

..**i.f~3** 

## -**33~** 

### t 

## rYJ.r:'r:tr:- @ 

### e yoJ'Y'7 r-yY1 J C6M 

## ft'(,hold 'P\,io,t-J-e 0\**~(~\)** 

## NC\+wd./ (Jit.S" 

### Cc. 50S 

### 53/-7763 V\.((!,./+e. R'-l.a,rdl."1 

# e**EPeVH!r~f)Y,** CO!OV\ 

## 3,/I/J((JIYIYC

# tr ;tit:.. /.1£1-..'/- /l((),IIAJ.r:

## If .3 0 3- 

### '7'10 .- I 3.J 2.. !:VJ1

### o"v.,Je..?:""t P ,r.tc:: 

### v

# J. /--""-0.-<.1,..4



### \**j\,~,** 

### l c.o"V\.IJ<-Q lli\.l:.- $t't

- ;y:p,
.. 

### t.!l.(ytK**J.::,~,-**

## ..... l\.{.**M..~ ~oa...**  @ lJSti..**~u'h~c..~. c..~**  __**'C(\~**



# /3)// -l (Y)

### /ss

## i .>

## ioIJ; 

## ,rR; .ft'l

## <;1,**..5/)~-;J,,~4- ~~rr**  

### I 

# f3;Jfi Q fJ1

## ISS cfa

# $h

. C. () 1"1 

## 0£:tf''"'**1vJ..P~.~iA** I/il 

### -(32..

- 

# c/llY .... ... 

## INiLLI

## A-Nis JlMI?It"

### ~O.-l**~(jJltUArlI'G** (b.

### E-MAIL 

### STATE STANDARDS, 8JANUARY01 ORGANIZATION TELEPHONE NAME

-..

### ;J;Z;.:!./~~7 

### -/::::.,),rnuZtJr;z;...cJ:. :A.**(..,-J.:;;Ao""~** /30.;.5 i'**&CJ!"~** .J /.r....>C.•• 

### <,.:::.-s-- .B0"7-<'J}"ttjr-:.' Vlff)C**~\tv'(~0** (L..-e,

..**O:",'71~** I 

## I

### NAME 

### STATE STANDARDS, 8JANUARY 01 ORGANIZATION TELEPHONE E-MAIL Sll00).f\\ 

## (ou/NS 

### R.

.,':::. lD Q.5TG--n 

### 1/ 50 

### S) 

### '8'37-- b S-S5" C:O LLI 

### M S 

### @ f'-\Ct( L.v l2.F-lUeSTLnr , 

# -rZ06Q'r4-**~a<?yp** y \' ; 

# , (C;Os)**Pi!i7-&57~?** Ef)t:;:f2.e=;f2..f L**r'VI/~** it- 

# ,ro=-t...:Je's.

# r' A

# ~~J9;/{J /

# J 17

### < 

# f2.

# 0 

# 'l.r: We6icJr? 

# 1/{7J(,-)

## /3~ 1-hSj,fi (1,,,,,1**{·~?~(;;)f1!A-ll.!lr-l,'JA-'7'-;,._,** {!.,cJtJ.rJ 

### a ""

### lJJ.\v~ t..\v),·t". 

### c". c;,A

.... j- ..;:.... -1. 

### (5-0.r) 7.L,L

- 0.)../'7 

### d!JA v I,'c**~1'·A** ....

### t.**(~1-41..**

### NAME STATE STANDARDS, 8JANUARY 01 ORGANIZATION· 

### TELEPHONE E-MAIL 

### J.SdA ,<;

### Ci1):::"J**1J:::£./~** 

## RJ97f!fiJ ;G:tY1?L/

## c..**6l:)fi--'-7~b"""** 

# r**~~;** 

# / ffi ,:...p$ @ 

### b a c!..c. C1**Vr~** 

### //-r'e.i>J?J 5/?i//th cO 

# /f. 

# If'If 

# -.r;(.lle

# I

# ! 

# AtPA '1 (1 

# 3?3t, -31-/**9~** 2111 /t'tr/C

# II &D rid", 1'1 

### t 

## -I

# l Jf-!J A

# !hz.{7.-~**~_11!** nUL 

### ;ffm£c:... £-1-"::'rJi-d!: iWz:. 

### <&'S)**g'~** 

### 1- 

### 18D 

## l L**I~** rdtt{:/,\-£x,\"**Lt-G2.ar:~ f'l<\.L.~**  • ('O'rv") 

## :r <::/\IJ...../ lR-tJnJv?l.-'Zdv 

## & 

# 'V') 1-l;,1 ;:::; 

### ..iJS- 

### 12..; 

### --/8' 0 

### 1 J::, 

## "b. kJ \I,,;,.C

### I Q C:V-""'\...02..-L- •**c..~** VI"'-. 

## .. u '. e.-.-?;L 

# ,**.:=~**GARYEo JOHNSON GOVI;RNOR

January 19, 2001
Dear Interested Party: 

### State of NewMexico 

## ENVIRONMENTDEPARTMENT AIR QUALITYBUREAU 2048 Galisteo Santa Fe, New Mexico 87505

Telephone (505) 827-1494 Fax (505) 827-1523 PETER MAGGIORE SEc:RE'I'ARY
PAUL R. RTTZMA DEPUTYSEc::RE7:AAY

Onthe 8th ofJanuary, the NewMexico Environment Department's Air QualityBureau held a meeting in Albuquerque to discuss how to implement the applicability of state ambient air standards, 20 NMAC 2.03, to Title V sources and the effectthe implementation may have on these sources. During the discussion numerous points were identified on the negative effects ofimplementation and some possible solutions.
There were many good recommendations that resulted from this meeting and the Bureau is considering each recommendation on its ovm merit. The facilitator's notes ofthe meeting and the recommendations made are attached.
One majorpoint that was identified was a need to clarifYthe content ofthe letter dated December 15, 2000. In the letter it is stated "

...AQB has determined that 20 NMAC 2.3 is an applicable requirement for ali TitleV OperatingPermits." The AQB, based on historical notes and the hearing record, believes that state standards are an applicable requirement for all Title V Operating Permits. The December 15th letter was intended to facilitate discussion on the applicability and possible implementation.
The Department has not made afinal decision on how to apply state standards to Title V sources and the debate on the issue is not concluded. We will contact you to discuss a path forward.
I would like to thank everyone who participated in the meeting. We value your input. Sincerely,

SandraEly Air Quality Bureau ChiefGARY E. JOHNSON GOVERNOR

September25,2002

DearInterested Party: 

### State of NewMexico 

## ENVIRONMENTDEPARTMENT AIR QUALITYBURBA U . 2048 Galisteo Street Santa Fe, NewMexico 87505

Telephone (505) 827-1494 Fax (505) 827-1523 JOHN R. D'ANTONIO, JR. SECRETARY

TheNew Mexico EnvironmentDepartmentispreparingto presenttestimonyto theEnvironmental Improvement Boardconcerning the IndustryWorking Group's petition to amend 20.2.70 NMAC, Operating Permits andhas requestedthattheEIB hold a hearingonthe samedayregarding arelatedDepartmentproposal. Thehearings'on the proposed amendments are scheduled before the Environmental ImprovementBoard onNovember 8, 2002. This letter is to· announce an informational meeting to be held by the Air Quality Bureau on October 7, 2002, regarding theproposed changes to 20.2.70 NMAC. Regulation 20.2.70 NMAC is the air quality regulation that establishes the requirements for obtaining an air quality operating permit. Air quality operating permits are required for major sources ofair pollution; that is, those sources that emit 100 tons peryearormore ofan airpollutant, or 10tons peryearofanyonehazardous air pollutant, or 25 tons peryear ofany combination ofhazardous airpollutants.
Theproposed amendments relateto thefollowingissues: (I) WhetherandhowNewMexicoAmbientAirQuality Standards (NMAAQS) and theNationalAmbientAirQualityStandards (NAAQS) wouldcontinuetobeincluded in operatingpermits as applicable requirements; (2) To whatextentwouldmodeling berequired for new permit applications andrenewals, and; (3) In cases wheremodeling shows that emissions from amajorsourcewill result in-ambientimpacts in excess ofNMAAQS, whatwouldberequiredin acomplianceplan. There are several other amendments proposed to the regulation as well.
TheAirQualityBureauwillbeholding apublic meeting on theproposedregulatory changesonOctober7 at 1:30 p.m. in the library reading room at the Wheelwright Museum of the American Indian (website www.wheelwright.org), 704 Camino Lejo, SantaFe. lfyou areinterestedin attending thismeeting, pleasecontact Rita Trujillo ofthe Air Quality Bureau at (505) 955-8024 orvia e-mail atrita_trujillo@nmenv.state.nm.us.GARYE. JOHNSON GOVERNOR 

### State of NewIdexico 

## ENVIRONMENTDEPARTMENT AIR QUALITYBUREAU 2048 Galisteo Street Santa Fe, NewMexico 87505

Telephone (505) 827-1494 Fax (505) 827-1523

Informational Meeting Regarding Proposed Revisions to 20.2.70 NMAC

- OperatingPermits and the Applicability ofAmbient Air Quality Standards
October 8, 2002
AGENDA JOHNR. D'ANTONIO, JR. SECRETARY

Introductions (15 minutes)
Air QualityBureau Presentation (30 minutes) .:. What are the New Mexico Ambient Air Quality Standards (NMAAQS) and the NationalAmbientAir Quality Standards (NAAQS)? .:

•. TheApplicability ofNMAAQSandNAAQS to OperatingPermits .:. The Department's Proposal for Revision of 20.2.70NMAC

- Operating Permits
Break (15 minutes) Questions and Comments Adjourn (by4:30 p.m.)Page 1 of 1 

### Trujillo, Rita, NMENV
From: Rita Trujillo [rita_trujillo@rimenv.state.nm.usJ Sent: Thursday, September 09, 2004 8:30 AM To: Rita Trujillo Cc: Debra McElroy; Lester Drapela; Sandra Ely; Eric Ames; Richard Goodyear Subject: Meeting on NM Proposal for Revisions to 20.2.70 NMAC
The Environment Department, Air Quality Bureau, will be presenting our proposed revisions to 20.2.70 NMAC

- Operating Permits at a pUblic meeting to be held at the Runnels building auditorium, 1190 Sl Francis Drive (comer of S1. Francis Drive and Alta Vista Street), Santa Fe, on Tuesday, September 21, from 2:00 p.m. until 4:00 p.rn.
The Department's proposal can be downloaded at**tLttp-:/lwww.nrnenv.state.nm.us/aqQlp.lQP-~s.htmf.** The Environmental Improvement Board has scheduled a hearing on these proposed revisions for Thursday. November4 at 9:30 a.m. at the State Capitol Building (Roundhouse) in Santa Fe.
We are IObking forward to seeing you at this meeting. Please call me ifyou have any questions or have any trouble downloading any of the documents from ourwebsite.

Rita Trujillo Air Quality Bureau New Mexico Environment Department 2044 Galisteo Santa Fe, NM 87505 (5D5) 955-8024 e-mail: rita_trujillo@nmenv.state.nm.us

7/17/2006Ralph Williams; Jerry Hereden; Terry Nelson; Sam Cudney; Ri,?k Moore; Richard Duarte; Paul Seby; Norma McCaIIan; Nancy Norem; Myke Lane; Mimi Adams; Michael Porto; Louis Rose; Kristin Koblis; Joshua Epel; John Bartlit; Jodie Gonzales; Jimmy Rivera; Jennifer Goldman; Jeanne Bassett; Don \Vhaley; Domonic Lees; Dennis Vaughn; Deborah Seligman; Daniel Schnee; Chris Mechels; Bruce Nicholson; Bruce Gantner; Andy Price; Andy Nowak; Adam Rankin; Reed Zars; W.K. Keenan; Vijay Kurki-Gowdra; Sheary Culp; Scott Vail; Russell Coryell; Ron LePlatt; Rick Loveless; PNM Raton; Paul Peacock; Michael Sims; MargaretLowe; Lori Suppes; Larry Campbell; Joyce Miley; John Hudspeth; Joe King; Jerry Walker; Jerry Jordan; Jennifer Knowlton; Herb Harless; Harry Wang; George Zanter; Ed Basely; Donald K. Judd; Debbie Beaver; Day Thomas; Dawn Meyers; David Pavlich; David Bays; Dan Frich; Chris Parks; Bob Andreoli; Billy Claxton; Bill Jaco; Benjamin Woods; Barry Holman; Ann Wagner; A.S. Shankar; Amy Welch; Andrew Frye; Bill Blankenship; Bill Scott; Bob Robeda; Cale Swanson; CliffLarsen; Curtis DeVore; Doug Meiklejohn; HeatherAnderson; Hugh Church; J.D. Bullington; Joe Kinnikin.; K. Barnett, Jr.; Krishan Wahi; Mark Vigil; Paul Robinson; Ralph Gruebel; RichardHarris; Scott OliverNew Mexico Environment Department PublicMeeting on Proposed Revisions to 20.2.70 NMAC, Santa Fe, NM Name Affiliation Address Phone September21,2004 E-mail

r U-J**~L** 

## hO-ov-\<:" fCJ



### r \C(c;

### s
...

## \,'Z\-t:.(" 'vI (C "v-v"**/\"J'~1** /',e, U:- 0i**.!:,-/1'3~G** <:.t'1

....... f'V'1,**Lh~c.1** ..

# r.:,r h-([..J 

### hollo,'l-t ""rT, (if: (rvi. '/**,I"~** 

## ,-,v l.7 1 

### 7 j2.

- ')."-0

-

_ .

( {;J Ct,>

## '7 6Ci.. 'V-vv"'-1C"'1 ilJ ,.:;:' 

### ;vl-1 ,v'/!A, 

### 'D"7 I r ( 

### ? '.7'1.i"-c) C;r**('l}.,,~,,-c;.-~'---k** rJ'C**I-'T~\".)** c**IV~"-'\.** y"/( 

### 07 '5 

### s.< 'T"",h,· ;.<'; 

## A-ve**H()i10'~~-"1'1** Irr-:B) 

### rJfv\ '/!J3SC/

0" (I. 15 1:/;:" 

### c.. '::> 

### '5 irC( 

# ;4-73''1 '8.**7IZ)~**



### C \**((~<;,** 

### G-V\

..

# e -r c c.\" 

### S I? ('

....:, L.*') ':-1

## r /1/" , r ! ._2 / v'" ,; .·-L

.. '. i' , 

### II 'j S (.1 C. f' t. 

### t(.. .,'i, 

## '(() r-...fr,,-do,rs

# Jt~6V~ (!u

## E;':;~/

# CJjrv~ ,<:1 

### ! 

## f-**~L./** /1./

# 5

" ..



### , V 

## VC1- V1 

### ef1**~<:.-l-t** "1-e--<- 

### @ 

# e( (}I4.fO 1

## lhA~ ITrujillo, Rita, NMENV
From: Sent: To:

Subject: Trujillo, Rita, NMENV Thursday, June 29, 2006 9:46 AM Andy Nowak (anowak@cybennesa.com); Andy Price (andy.price@elpaso.com); Bruce Gantner (Bruce Gantner); Bruce Nicholson (BrucNichol@aol.com); Chris Mechels (cmechels@att.net); Daniel Schnee (daniel.schnee@elpaso.com); Dave Strasser (faithinC@flash.net); Deborah Seligman (seligman@nmoga.org); Dennis Vaughn (drvaughn@phelpsdodge.com); Don Whaley (don@navajo-refining.com); Jeanne Bassett Ubassett@nmpirg.org); Jennifer Goldman Uennifergoldman@ogap.org); Jimmy Rivera 

### -7 Orivera@cajadelrio.coni); Jodie Gonzales Ugonzales@cajadelrio.com); John Bart/it Urbart/it@aol.com); Joshua Epel Obepel@duke-energy.com); Kristin KobHs (kmkoblis@dukeenergy.com); Louis Rose (Louis Rose); Michael Lane (michael.k.lane@williams.com); Michael Porto (michael.porto@holloman.af.miJ); Mimi Adams (madams12@earthlink.net); Nancy Norem (nnorem@pnm.com); Norma McCalian (nmccallan@mindspring.com); Pat Nelson (nelsonconsulting@qwest.net); Paul Seby (pmseby@5280Iaw.com); Ralph Williams (rwiHiams@classonetech.com); Reed Zars (rzars@lariatorg); Richard Duarte**(ricardo.duarte@elQ§.S.O~~Qrn);** Rick Moore (moore@grandcanyontrust.org); Sam Cudney (sam@enservice.com); Terry Nelson (tnelson3@WDlcom) Meeting on Proposed Regulations

We have propqsed revisions to regulations for applying state standards to major sources of air pollution. We will be holding a public meeting on July 6 at 2:00 p.m. on the second floor of the Colgate Building, 2040 Pacheco Street (south of the intersection with St. Michael's Drive), Santa Fe to discuss the proposal.
The proposed revisions are posted on our web site at http://www.nmenv.state.nm.us/aqb/prop_regs.html.
Please let me know if you plan to attend this meeting. Thank you.

Rita Trujillo Air Quality Bureau New Mexico Environment**Depa~tment** 2044 Galisteo Santa Fe, NM 87505 Phone: (505) 955-8024 Fax: (505) 827-1543

1New Mexico EnvironmentDepartment Parts 3, 70, and 72 Revisions Public Meeting Name AffIliation Address Phone E-mail' July 6,2006

(03&\ 

### N·**~)"" ~~** 

## l2e61.0'i:.,~**~.** tA...

## ~'b 2J) \

## ~:.zs-'6D·Z lof'I'l\l ('a ""-1'\

## h~),\ 6) Solle .('()M ./

( 'k C. r<. 4('1 Co t, f 0 

### \.1-.) ; II ;t1 WV 

### 13>\

.." In 

### c.\**,~** N II'\. lO" 't l '3 (/

# ~.ftiJ'S**\V~~t,.** p'

.. " I I 

# I'D(-)
v •

# J, 13 t\ 'i S"



### u ( () VNEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD NOnCE OF PUBLIC MEETlNG AND RUlE MAKING HEARING , The New Mexico Environmental Improvement Board I'Board') witt hold a public rule making hearing on August 1, 2006 at 9:00 a.m. at the Slate Capllol BuDding, Room # 321, Santa Fe, NeVI MelCioo, 10 consider the maIler 01 EIB 05·12(R) 10 revise 202.3 NMAC (Ambient Air QualitY Siandards), 20.2.70 NMAC (Operating f'ennits) and 202.72 NMAC (Construction ) Pennits).

.

The proponent 01 !he regulalory change is \he New MexiCO EI1VI' ronmenl Depanment ('NMED'). Proposed reVisions 10 20.2.70 NMAC:

.. .

NMED proposes to amend the definition of 'applicable require- ment' ki the rule by removing the New Mexico Ambient !'Jl**Quali~** Standards ('NMMQS'); to**clari~** the procedure loraffected source! to subln« dispersion modellng fOI and to certify compliance wlln tho National Amblenl AirQualIly Sian' dards' rNAAQS'); and to 'require lhat sources permllted under· 20.2.70 NMAC mile'vplllT11l1s) obtain a202.72 NMAC or 20.2.74 NMAC permll If they have' nol done so pre\lloi/sly. NMED's pro' posal clarifies lhatceriUicalions at comptianC! fornew sources under 202.1(}.300.D.ll NMAGwifl be based on the mOdeling submilled i with the construclion pannil appll· cation and for SOUrces reneWing

. their pennl on compliance willi lhe lanns and COfldiUons 01 !he pennlt. NMED proposes to revise 20.2.70302.E.3 //MAC 10 clarify that annual compfJanee cemUca· tions are based on compliance with \he tenns and conditions In Ihe permit.

NMED proposes to revise 20.2.70.300.Dl5)(g} NMAC 10give NMED**di~cretion** III requiring ap· I**pll~ants** to submll operal/onal plans lor stan·up and shutdown. I NMEO proposes 10 revi'se 20.2.70.304.0 NMACto malch lhe equivalent federal·language in 40 CfR 70.6. With this reviSion Ihe nule·will require Tille VsoUrces to report Vlolalions of the terms and conditions In Ihelr permits and claim affinnaUve defenses for such violalions In a mamer consistent with other pennilled sources, Cur· renl/y, sources permilled under 20.2.70 NMAC have some pennit conditions thaI are subject 10 202.7 NMAC and otherconditions thai are nDt. Proposed revision to 20.2.3 NMAC:·

. •

NMED proposes 10 adO section 20.2.3.9 NMAC 10 20.2.3 NMAC. which would provlde lhat 20.2.3 RMAC would not**ap~ly** to 20.2.70 NMAC • Operaling Pennifs. The proposed revision to 20.2.70 ,NMAC thaI requires sources !hat have nol obtained apenn" under 202.72 NMAC (Construction Permits) or20.2.74 NMAC (Permits • Prevention 01 Significant Deterioration) ensures that allsources In ' New Mex1cu will meel !he**r~u"e-** i ments 01 20.2.3 NMAC. This is a

. revision to the New Mexico Stale
• Implementalion Plan. , 

# IProposed revIsions 10 20.2.72 NMAC: NMeD propose•. " revise 20.2.72.216 NMAC so that" will aprlY to eXisting, sources

.that do no propose an mcrease 111 emls, sions blll will emil a regulated air contaminanl exceeding the signil\- cant concentration lor that poilU!' ant listed In 20.2.72.500 NMAC at any location thal does not meet the NMQS for the conlamlnant In addition, subsection C Is added 10 require Ihat eXisting sources**su~** jeel to the seclion must demon' strate anet airqualily beneftt of at least a 20 percentfllduclion In**amble~!** irnpacllore.ach ilPPllcable i contaminant.

The proposed changes may be reviewed during .regular business hours at Ihir NMED Air Quauly Bureau office, 2044 Galisteo: San· la Fe, ·New Mexico. A'fullex! 01 NMED's proposed changes are avallabla on NMED's web slla at www.nmenv.stale.nm.us.or.?l. •• contacting Alla Trujillo al (SOb) 9 5 ·5 • 8' 0 2 4 0 r rita.trup"o@slatenrn.us·

.

The hearing will be. conducted

, In accordance wilh 20.1.1 NMAC (Aulemaklng Procedures) EnVironmental Improvement Board; lhe Environmental Improvement Acl, Section 74+9 NMSA 1978; ,!he Air Quality Control Act Section 72·2·6 NMSA 1978; and other appncable procedures. ,

All Inlerested pelSons wJII be given reasonab.Ie opportunlly at the hearing to submit relevantev> denea, data. views and argumenls, orafty or In writing, to IiIlrbduce exhiblls, and 10 examlna**~esS:** es. Parsons wishing to present technical lestimony must file wilh the Board awritten notice or Intenl to do so. The notice 01 inlent shalt. (1) Identity the pelSon lor whom Ihe wilness(es) wiA testily;

. (2}ldenlily eaCh technical wilness that !he pelSon Intends 10 present and stale the gualilications of the witness, including adescription of Ihelr aoucalion and war\( back· ground;

. IS) summerize orlncJude acopy of ' the direct testimony of each teCh· nlcal witness and stale the anticl· pated duration cithe testimony 01 lhatwilness;

. (4) fist and describe, or attach, each exhlbft anticipated to be oj· tered by thai person at !he. hear· InJl; and (5) atlaCh the text of any recom- mended modlficallons to lhe proposed chenges.

Notices 01 Intent lorthe hear1ng must be received In the Office 01

__ the Board not· later Ihan 5:00 pm oOn July 7, 2006, 'and should rei· erence the docket number, Et8 OS-12{Rl, and the dale 01 tne hearing. Nollces 01 Intent 10 pres· entteChnicalteslimony should be Submitted to: Joyce Medina, Board Administrator Office 01 the Envirorvrienlal Improvement Board Harold Runnels Building 1190 SL Francis Dr., Aoom N·21 SO 12153 Santa Fe, NM 87502 Phone: {50S}**a27-2~2S,** Fax**(S05}8~7-2a36** Any member of the general pUblic may testify al the nearing. No prior nolirlCaliori is regulred fa present non-technical testunony at the hearing. Any such member may also ofter eXhibits In connec· lion wllh his testimony, so long as the exhtbll is not unduly repelllious ofthe leslimony.

Amember01 the ganeral pubDc who wishes 10 submll a written s1atemenllor the record, In lieu 01 providing oral testimony at the hearing, shall fllethe wrillen slalement prior to the hear1ng, or sub· m" « al1he hearing. PersOllS having a disablJlty and neeamg help In being apart of this hearing process snoufd conlael Judy Benlley by July 16, 2006 at the NMEO Personnel Services Bureau, P.o. Box 26110,1190 Sl Francis' Drive, Santa Fe, New Mexico,**6750~1** telephone 505·827·9872. TOT users please access her number via the New MexIco Flelay Network at 1-600-659-6331.

The Board may deUberate and rule on Ihe proposed amendments at the close lif the hearing or the Board may convene ameeUng al· ler tha hearing \0 consider aelion

, on the proposal. 'Ioumal: May31,2005 NMED EXHIBIT #5PRICEJ:? \ 

# le

# Lc;t
Statement to come at end of month. 

### STATE OF NEW MEXICO County of Bernalillo SS
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 paper in the regular daily edition, for times, the first pubUcation being· on the day of 

# vrfl 0 A.\-..

## 20~/;~~'d !.h

...

## sub~equent consecutive publications on

_

### J~~ ··v 20, 

# 4

-

efore me, a Notary Public, in and for the County of Bernalillo and State of New Mexico this day of

## 1'1\a :; of

## 20P,~

J------.-_.- -----""'-""-**<0~;·,** OFFiCiAL SEil.L )**:~' ~~·.r?t.·**  

### ?\ ) J'**"~'{.?":I~)"')** 

### E:'ln 

### Sloane .;t**-::..~."fory ~;J**  J • ACCOUNT NUMBER )**-'",::-":-<.7"1~Y** NOTAfiY PU8l1C**-"-~-Pt--'"="---'--~/---\---\-** J,.,

..".

. STATE OF NEW MEXICO CLA-22.A (R-1193) M·lI Commis

..ion Expires, If-:-If'"(O /

## New Mexico Commission of:public Records Administrative Law Division 1205 Camino Carlos Rey Santa Fe, NM 87507 505-476-7907 

# Affidavit ofPublication in the 

# New Mexico Register -----,

Notice ofPublic Meeting I certify that the agency noted below has published legal notices or rules in the New Mexico Register, and that paymenthas been assessed by invoice for said legal notice orpublication, which appeared on the date and in the volume and issue numbernoted

# 0

b
Date ofPublication: 5/31/2006 Agency.:

# Co~4..**1-:>~** Volume: XVIl Issue #: 10 EIB

- Alr Qual 

# ,,0'

.....

# '1.·

...**J"?70.~** Contact Joyce Medina q,C; ,.\**,.,.;~').** 2044 Galisteo

## ~~. -

## ~:,.\ Santa Fe, NM 87502- : 

## JUN**~~~~! ~~"** **~~;~;;~:"'\l3t'** 

## t,

.**--····llO~m** ' \ j:. 

## A:**..iu~** 

## 0e:

_ .....

-<; 8'Zit.91.,'?

. Invoice #: NMR-2006- 338 Amount: $33.00 Description: Notice



### Attest: 

# oL**_ll,--L.~;L.-Q~~~** _**PUblisher,~Regi** ter Administratiye Law Diyision New Mexico Commission ofPubJic Records 

### Date: 6/1/2006



### Notice to Publishing Agency Enclosed are your agency's proofcopies ofthe legal notices orrules which were published in the New Mexico Register. These document the fact that yourNotice ofRuJemaking, Proposed Rule, or Adopted Rule has been published in the New Mexico Register.
Form SRC-2002-04510 New Mexicl 

### ;gister / Volume XVII, Number 10/ 

### ty 31, 2006 requires sources that have not obtained a pemlit under 20.2.72 NMAC (Construction Permits) or 20.2.74 NMAC (Permits

- Prevention of Significant Deterioration)
ensures that all sources in New Mexico will meet the requirements of 20.2.3 NMAC. This is a revision to the New Mexico State lmplementation Plan. Proposed revisions to 20.2.72 NMAC:

NMED proposes to revise 20.2.72.216 NMAC so that it will apply to existing
sources that do not propose an increase in emissions but will emit a regulated air contaminant exceeding the significant concentration for that pollutant listed in 20.2.72.500 NMAC at any location that does not meet the NAAQS for the contaminant. ln addition, subsection C is added to require that existing sources subject to the section must demonstrate a net air quality benefit of at least a 20 percent reduction in ambient impact for each applicable contaminant.
The proposed changes may be reviewed during regular business hours at the NMED Air Quality Bureau office, 2044 Galisteo, Santa Fe, New Mexico. A full text of NMED's proposed changes are available on NMED's web site at www.nmenv.state.nm.us. or by contacting Rita Trujillo at (505) 955-8024 or rita.trujillo@state.nm.us.
The hearing will be conducted in accordance with 20.1.1 NMAC (Rulemaking Procedures) Environmental llllprovement Board; the Environmental Improvement Act, Section 74-1-9 NMSA 1978; the Air Quality Control Act Section 72-2-6 NMSA 1978; and other applicable procedures.
All interested persons will he given**rea~on** able opportunity at the hearing to submit relevant evidence, data, views and arguments, orally or in writing, to introduce exhibits, and to examine witnesses. Persons wishing to present technical testimony must file with the Board a written notice ofintent to do so. The notice ofintent shall: (J) identify the person for whom the witness(es) will testify; (2) identify each technical witness that the person intends to present and state the qualifications of the witness, including a description of their education and work background; (3) summarize or include a copy ofthe direct testimony of each technical witness and state the anticipated duration ofthe testimony ofthat witness; (4) list and describe, or attach, each exhibit anticipated to be offered by that person at the hearing; and (5) attach the text ofany recommended modifications to the proposed changes.

Notices of intent for the hearing must be received in the Office ofthe Board not later than 5:00 pm on July 7, 2006, and should reference the docket number, EIB 05-12(R), and the date ofthe hearing. Notices ofintent to present technical testimony should be submmed to:

Joyce Medina, Board Administrator Office ofthe Environmental Improvement Board

Harold Runnels Building J190 SI. Francis Dr., Room N-2150 /2153 Santa Fe, NM 87502 Phone: (505) 827-2425, Fax (505) 827- 2836 Any member ofthe general public may testity at the hearing. No prior notification is required to present non-technical testimony at the hearing. Any such member may also offer exhibits in connection with his testimony, so long as the exhibit is not unduly repetitious ofthe testimony.

A member ofthe general public who wishes to submit a written statement for the record, in Iieu ofproviding oral testimony at the hearing, shall file the written statement prior to the hearing, or submit it at the hearing.

Persons having a disability and needing help in being a part of this hearing process should contact Judy Bentley by July 18, 2006 at the NMED, Personnel Services Bureau, P.O. Box 26110, J J90 SI. Francis Drive, Santa Fe, New Mexico, 87502, telephone 505-827-9872. TDY users please
access her number via the New Mexico Relay Network at 1-800-659-8331.
The BC3.rd mo.)' deliberate and**ri.lt~** Oli the proposed amendments at the close of the hearing or the Board may convene a meeting after the hearing to consider action on the proposal. 

### NEW MEXICO LIVESTOCK BOARD

NEW MEXICO LIVESTOCK BOARD

NOTICE OF RULE MAKING AND ADOPTlON OF RULE HEARING, SETTING MILL LEVY AND REGULAR BOARD MEETING
NOTICE JS HEREBY GIVEN that a rules hearing, setting mill levy and regular board meeting will be held on Tuesday, June 13, 2006, at the New Mexico Livestock Board, 300 San Mateo NE Suite 1000, Albuquerque, New Mexico at 9:00
a.m. The Board will initiate rule changes regarding Food Safety, Meat and Poultry Inspection, set the mill levy and discuss other matters ofgeneral business.

Copies of the agenda can be obtained by contacting Daniel Manzanares, Executive Director, New Mexico Livestock Board, 300 San Mateo NE Suite 1000, Albuquerque, NM 87108-1500, (505) 841- 6161.

Anyone who requires special accommodations is requested to notify the New Mexico Livestock Board office at (505) 841-6161 of such needs at least five days prior to the meeting. 

### NEW MEXICO

STATE MINE INSPECTOR

NOTJCE OF PUBLIC MEETING AND HEARING OF THE NEW MEXICO MINE SAFETY ADVISORY BOARD
The New Mexico Mine Safety Advisory Board will hold a public meeting beginning at 10:00 A.M. Wednesday, June ]4. 2006 in the Association of Commerce and Industry Conference Room located on the 4th floor ofAssociation of Commerce and Industry building located at 2201 Buena' Vista SE in Albuquerque, New Mexico. During the meeting, the Mine Safety Advisory Board will conduct a public hearing on proposed rules for mine safety submitted by the State Mine Inspector. The Commission will consider a new rule, 11.8.2 NMAC

- Emergency Notification. The new rule implements Laws 2006, chapters 102 and 106 which establish a Mine**Accider,~** Rapid Response System and require that the State Mine Inspector be immediately notified of mine accidents. The Board will also consider the repeal of rules Ml 69-0 (aka 19.7.4), MI 73-2 (aka 19.7.8), SIM 76-1 (aka 19.7.16), MI 79-1 (aka 19.7.18), Ml 79-2 (aka 19.7.19) and SIM 89-J (aka 19.7.21) NMAC. To view proposed rule, go to the State Mine Inspector's homepage ,at http://www.bmi.state.nm.us/. Copies ofthe proposed rule changes are also available from the New Mexico Bureau of Mine Safety, 801 Leroy Place, Socorro, NM 87801 or by calling 505/835-5460. At the conclusion ofthe hearing, the Mine Safety Advisory Board may deliberate and make a recommendation to the State Mine Inspector on the proposed rule changes.

A copy ofthe agenda for the meeting/hearing will be available at least 24 hours before the meeting and may be obtained by con-

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


# SEP 10 2004

Mr. 

### Richard L. Goodyear, P.E. Pennit Programs Manager Air QualityBureau New Mexico Environment Department 1190 St. Francis Drive P.O. Box 26110 SantaFe, NM 87502-6110
RE: 20.2.70 New Mexico Administrative Code (NMAC), section 304.D, 20.2.7 NMAC (Excess Emissions during Malfunction, Startup, Shutdown, or Scheduled Maintenance)
DearMr. Goodyear:
Thankyou for your email in which you requested comments regarding proposed changes to 20.2.70 NMAC, section 304.D.
The proposed changethat would make 20.2.70 NMAC, section 304.D. match 40 Code of Federal Regulations 70.6(g)(5) is consistent with Part 70 requirements and incorporates the State's upsetrule as an applicable requirement ofits title V program. However, there is aproblem with Section 20.2.7.109. Although the State is not making changes to Section20.2.7.109 directly, thatprovisionnow becomes applicable to all title V sources with this change. Section 20.2.7.109 is not consistent with the Environmental Protection Agency's (EPA) interpretation ofthe Clean AirAct as outlined in a 1999 memorandum, State Implementation Plans (SIPs): PolicyRegarding Excess Emissions During Malfunctions, Startup, and Shutdown. Section 20.2.7.109 states:
20.2.7.109 OPERATIONS IN VIOLATION: Operation ofany process equipment or air pollution control equipment 

### in a mannerinconsistent with any Air Quality Control Regulation which is aresult ofmalfunction, startup, shutdown or scheduled maintenance is aviolation ofan applicable Air Quality Control Regulation unless the owner or operator ofthe facility has complied with the notification requirements of20.2.7.110 NMAC in atimely manner and has demonstrated to the Department's satisfaction that...

Internet Address (URL) • http://vvww.epa.gov/earth1 r6/ Recycled/Recyclable

- Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer)2


### Section 20.2.7.109 is inconsistent with EPA's interpretation ofthe Clean Air Actbecause the provision can be interpreted to exempt emissions from compliance with SIP limits. Because excess emissions might aggravate air quality so as to prevent attainment orinterfere with maintenance ofthe ambient airquality standards, EPA views all excess emissions as violations ofthe applicable emission limitation. However, the State orEPA can exercise enforcement discretion to refrain from taking enforcement action in certain circumstances. Also, the State has discretion to provide an affirmative defense to actions forpenalties brought for excess emissions that arise during certain malfunction, startup, and shutdown episodes. Please see the enclosed 1999 memo on excess emissions for details and model language. Also, Region 6 will be glad to provide any furtherinformation.
Ithank you for the opportunity to comment, and Ihope that this is helpful. Ifyou have any questions, please call me at (214) 665-7250 orDaron Page ofmy staffat (214) 665-7222. Sincerelyyours,

EnclosureUNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460

MEMORANDUM SUBJECT: State Implementation Plans (SIPs): Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown
FROM: Steven A. Herman Assistant Administrator for Enforcement and Compliance Assurance Robert Perciasepe Assistant Administrator for Air and Radiation
TO: Regional Administrators, Regions I - X

The Environmental Protection Agency's (EPA's) policy for SIPs regarding excess emissions during malfunctions, startup, shutdown, and maintenance is contained in memoranda from Kathleen Bennett, formerly Assistant Administrator for Air, Noise and Radiation dated September 28, 1982 and February 15, 1983. A recent review of SIPs suggests that several contain provisions that appear to be inconsistent with this policy, either because they were inadvertently approved after EPA issued the 1982-1983 guidance or because they were part of the SIP at that time and have never been removed. In order to address these provisions in a consistent manner, today we are reaffirming and supplementing the 1982-83 policy. In so doing, we are taking this opportunity to clarify several issues of interpretation that have arisen since that time. This updated policy will clarify the types of excess emissions provisions states may incorporate into SIPs so that they can in turn provide greater certainty to the regulated community.
As EPA stated in its 1982 memorandum, because excess emissions might aggravate air quality so as to prevent attainment or interfere with maintenance of the ambient air quality standards, EPA views all excess emissions as violations of the applicable emission limitation. Nevertheless, EPA recognizes that imposition of a penalty for sudden and unavoidable- 2 - malfunctions caused by circumstances entirely beyond the control of the owner or operator may not be appropriate. Accordingly, a State or EPA can exercise its "enforcement discretion" to refrain from taking an enforcement action in these circumstances.
The main question of interpretation that has arisen regarding the old policy is whether a State may go beyond this "enforcement discretion" approach and include in its SIP a provision that would, in the context of an enforcement action for excess emissions, excuse a source from penalties if the source can demonstrate that it meets certain objective criteria (an "affirmative defense"). This policy clarifies that States have the discretion to provide such a defense to actions for penalties brought for excess emissions that arise during certain malfunction, startup, and shutdown episodes.
In the context of malfunctions, EPA recognizes that even equipment that is properly designed and maintained can sometimes fail. At the same time, EPA has a fundamental responsibility under the Clean Air Act to ensure that SIPs provide for attainment and maintenance of the national ambient air quality standards ("NAAQS") and protection of prevention of significant deterioration (PSD) increments. Thus, EPA cannot approve an affirmative defense provision that would undermine the fundamental requirement of attainment and maintenance of the NAAQS, or any other requirement of the Clean Air Act. See sections 110(a) and (1) of the Clean Air Act, 42 U.S.C. § 7410(a) and (1).1 Accordingly, an acceptable affirmative defense provision may only apply to actions for penalties, but not to actions for injunctive relief. This restriction insures that both State and federal authorities remain able to protect air quality standards and PSD increments. Furthermore, this approach is appropriate only when the respective contributions of individual sources to pollutant concentrations in ambient air are such that no single source or small group of sources has the potential to cause an exceedance of the NAAQS or PSD increments. 2 Where a single source or small

1Pursuant to Section 110(1), EPA may not approve a SIP revision if "the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of this chapter." See also CAA § 193, 42 U.S.C. § 7515, and the definitions of "emission limitation" and "emission standard" contained in CAA § 302 (k), 42 U.S.C. § 7602 (k).

2 In the case of lead and sulfur dioxide, attainment problems usually are caused by one or a few sources and an- 3 -
group of sources has the potential to cause an exceedance of the NAAQS or PSD increments, EPA believes an affirmative defense approach will not be adequate to protect public health and the environment, and the only appropriate means of dealing with excess emissions during malfunction, startup, and shutdown episodes is through an enforcement discretion approach. 3
The EPA is also taking this opportunity to clarify that it does not intend to approve SIP revisions that would enable a State director's decision to bar EPA's or citizens' ability to enforce applicable requirements. Such an approach would be inconsistent with the regulatory scheme established in Title I of the Clean Air Act. The EPA is also adding contemporaneous record keeping and notification criteria to make its policy regarding these types of events consistent with its enforcement approach. Finally, EPA is clarifying how excess emissions that occur during periods of startup and shutdown should be addressed. In general, because excess emissions that occur during these periods are reasonably foreseeable, they should not be excused. However, EPA recognizes that, for some source categories, even the best available emissions control systems might not be consistently effective during startup or shutdown periods. In areas where the respective contributions of individual sources to pollutant concentrations in ambient air are such that no single source or small group of sources has the potential to cause an exceedance of the NAAQS or PSD increments, these technological limitations may be addressed in the underlying standards themselves through narrowly-tailored SIP revisions that take into account the potential impacts on ambient air quality caused by the inclusion of these allowances. In these instances, as part of its justification of the SIP revision, the State should analyze the

affirmative defense is not appropriate. This situation can be particularly aggravated where a short-term standard (e.g., where exceedances or violations are based on a few hour period) is also in place. Although this policy is generally applicable for other NAAQS, enforcement discretion is the only appropriate approach for dealing with excess emissions during startup, shutdown, and malfunction in a specific area where a single source or a small group of sources has the potential to cause nonattainment of a short-term NAAQS.

3 In American Trucking Association v. EPA, 175 F. 3d 1027 (D.C. Circ., 1999), the court remanded the PM2.5 NAAQS to the EPA. The Agency has not determined whether this policy is appropriate for PM2.5 NAAQS.

### - 4 - impact of the potential worst-case emissions that could occur during startup and shutdown. 4

In addition to this approach, States may address this problem through the use of enforcement discretion or they may include a general affirmative defense provision in their SIPs for short and infrequent startup and shutdown periods along the lines outlined in the attachment. As mentioned above, however, in those areas where a single source or small group of sources has the potential to cause an exceedance of the NAAQS or PSD increments, issues relating to excess emissions arising during startup and shutdown may only be addressed through an enforcement discretion approach.
All Regions should review the SIPs for their States in light of this clarification and take steps to insure that excess emissions provisions in these SIPs are consistent with the attached guidance.
Attachment

4States may account for such emissions by including them in their routine rule effectiveness estimates. Rule effectiveness estimates may be prepared in accordance with an EPA policy document entitled "Guidelines for Estimating and Applying Rule Effectiveness for Ozone/Carbon Monoxide State Implementation Plan Base Year Inventories." (EPA-452/R-92-010) November 1992.Attachment
POLICY ON EXCESS EMISSIONS DURING MALFUNCTIONS, STARTUP, AND SHUTDOWN Introduction
This policy specifies when and in what manner state implementation plans (SIPs) may provide for defenses to violations caused by periods of excess emissions due to malfunctions,l startup, or shutdown. Generally, since SIPs must provide for attainment and maintenance of the national ambient air quality standards and the achievement of PSD increments, all periods of excess emissions must be considered violations. Accordingly, any provision that allows for an automatic exemption2 for excess emissions is prohibited. However, the imposition of a penalty for excess emissions during malfunctions caused by circumstances entirely beyond the control of the owner or operator may not be appropriate. States may, therefore, as an exercise of their inherent enforcement discretion, choose not to penalize a source that has produced excess emissions under such circumstances.
This policy provides an alternative approach to enforcement discretion for areas and pollutants where the respective contributions of individual sources to pollutant concentrations in ambient air are such that no single source or small group of sources has the potential to cause an exceedance of the NAAQS or PSD increments. Where a single source or small group of sources has the potential to cause an exceedance of the NAAQS or PSD increments, as is often the case for sulfur dioxide and lead,3 EPA believes approaches other than enforcement discretion are not appropriate. In such cases, any excess emissions may have a significant chance of causing an exceedance or violation of the applicable standard or PSD increment.

IThe term excess emission means an air exceeds any applicable emission limitation. sudden and unavoidable breakdown of process emission level which Malfunction means a or control equipment. 2The term automatic exemption means a generally applicable provision in a SIP that would provide that if certain conditions existed during a period of excess emissions, then those exceedances would not be considered violations. 3This policy also does not apply for purposes of PM2.5 NAAQS. In American Trucking Association v. EPA, 175 F. 3d 1027 (D.C. Circ., 1999), the court remanded the PM2.5 NAAQS to the EPA. The Agency has not determined whether this policy is appropriate for PM2.5 NAAQS.- 2 - Except where a single source or small group of sources has the potential to cause an exceedance of the NAAQS or PSD increments, states may include in their SIPs affirmative defenses4 for excess emissions, as long as the SIP establishes limitations consistent with those set out below. If approved into a SIP, an affirmative defense would be available to sources in an enforcement action seeking penalties brought by the state, EPA, or citizens. However, a determination by the state not to take an enforcement action would not bar EPA or citizen action. 5

In addition, in certain limited circumstances, it may be appropriate for the State to build into a source-specific or source-category-specific emission standard a provision stating that the otherwise applicable emission limitations do not apply during narrowly defined startup and shutdown periods.
I. AUTOMATIC EXEMPTIONS AND ENFORCEMENT DISCRETION
If a SIP contains a provision addressing excess emissions, it cannot be the type that provides for automatic exemptions. Automatic exemptions might aggravate ambient air quality by excusing excess emissions that cause or contribute to a violation of an ambient air quality standard. Additional grounds for disapproving a SIP that includes the automatic exemption approach are discussed in more detail at 42 Fed. Reg. 58171 (November 8, 1977) and 42 Fed. Reg. 21372 (April 27, 1977). As a result, EPA will not approve any SIP revisions that provide automatic exemptions for periods of excess emissions.
The best assurance that excess emissions will not interfere with NAAQS attainment, maintenance, or increments is to address excess emissions through enforcement discretion. This policy provides alternative means for addressing excess emissions of criteria pollutants. However, this policy does not apply where a single source or small group of sources has the potential to cause an exceedance of the NAAQS or PSD increments. Moreover,

4The term affirmative defense means, in the context of an enforcement proceeding, a response or defense put forward by a defendant, regarding which the defendant has the burden of proof, and the merits of which are independently and objectively evaluated in a judicial or administrative proceeding.
5Because all periods of excess emissions are violations and because affirmative defense provisions may not apply in actions for injunctive relief, under no circumstances would EPA consider periods of excess emissions, even if covered by an affirmative defense, to be "federally permitted releases" under EPCRA or CERCLA.- 3 - nothing in this guidance should be construed as requiring States to include affirmative defense provisions in their SIPs.
II. AFFIRMATIVE DEFENSES FOR MALFUNCTIONS The EPA can approve a SIP revision that creates an affirmative defense to claims for penalties in enforcement actions regarding excess emissions caused by malfunctions as long as the defense does not apply to SIP provisions that derive from federally promulgated performance standards or emission limits, such as new source performance standards (NSPS) and national emissions standards for hazardous air pollutants (NESHAPS).6 In addition, affirmative defenses are not appropriate for areas and pollutants where a single source or small group of sources has the potential to cause an exceedance of the NAAQS or PSD increments. Furthermore, affirmative defenses to claims for injunctive relief are not allowed. To be approved, an affirmative defense provision must provide that the defendant has the burden of proof of demonstrating that:
1. The excess emissions were caused by a sudden, unavoidable breakdown of technology, beyond the control of the owner or operator; 2. The excess emissions (a) did not stem from any activity or event that could have been foreseen and avoided, or planned for, and (b) could not have been avoided by better operation and maintenance practices;
3. To the maximum extent practicable the air pollution control equipment or processes were maintained and operated in a manner consistent with good practice for minimizing emissions;
4. Repairs were made in an expeditious fashion when the operator knew or should have known that applicable emission limitations were being exceeded. Off-shift labor and overtime must have been utilized, to the extent practicable, to ensure that such repairs were made as expeditiously as practicable;
5. The amount and duration of the excess emissions (including any bypass) were minimized to the maximum extent practicable during periods of such emissions;

6To the extent a State includes NSPS or NESHAPS in its SIP, the standards should not deviate from those that were federally promulgated. Because EPA set these standards taking into account technological limitations, additional exemptions would be inappropriate.- 4 -
6. All possible steps were taken to minimize the impact of the excess emissions on ambient air quality;
7. All emission monitoring systems were kept in operation if at all possible;
8. The owner or operator's actions in response to the excess emissions were documented by properly signed, contemporaneous operating logs, or other relevant evidence;
9. The excess emissions were not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and
10. The owner or operator properly and promptly notified the appropriate regulatory authority. The EPA interprets these criteria narrowly. Only those malfunctions that are sudden, unavoidable, and unpredictable in nature qualify for the defense. For example, a single instance of a burst pipe that meets the above criteria may qualify under an affirmative defense. The defense would not be available, however, if the facility had a history of similar failures because of improper design, improper maintenance, or poor operating practices. Furthermore, a source must have taken all available measures to compensate for and resolve the malfunction. If a facility has a baghouse fire that leads to excess emissions, the affirmative defense would be appropriate only for the period of time necessary to modify or curtail operations to come into compliance. The fire should not be used to excuse excess emissions generated during an extended period of time while the operator orders and installs new bags, and relevant SIP language must limit applicability of the affirmative defense accordingly.
III. EXCESS EMISSIONS DURING STARTUP AND SHUTDOWN
In general, startup and shutdown of process equipment are part of the normal operation of a source and should be accounted for in the planning, design, and implementation of operating procedures for the process and control equipment. Accordingly, it is reasonable to expect that careful and prudent planning and design will eliminate violations of emission limitations during such periods.
A. SOURCE CATEGORY SPECIFIC RULES FOR STARTUP AND SHUTDOWN
For some source categories, given the types of control technologies available, there may exist short periods of emissions during startup and shutdown when, despite best efforts regarding planning, design, and operating procedures, the- 5 - otherwise applicable emission limitation cannot be met. Accordingly, except in the case where a single source or small group of sources has the potential to cause an exceedance of the NAAQS or PSD increments, it may be appropriate, in consultation with EPA, to create narrowly-tailored SIP revisions that take these technological limitations into account and state that the otherwise applicable emissions limitations do not apply during narrowly defined startup and shutdown periods. To be approved, these revisions should meet the following requirements:
1. The revision must be limited to specific, narrowlydefined source categories using specific control strategies (e.g., cogeneration facilities burning natural gas and using selective catalytic reduction);
2. Use of the control strategy for this source category must be technically infeasible during startup or shutdown periods;
3. The frequency and duration of operation in startup or shutdown mode must be minimized to the maximum extent practicable;
4. As part of its justification of the SIP revision, the state should analyze the potential worst-case emissions that could occur during startup and shutdown;
5. All possible steps must be taken to minimize the impact of emissions during startup and shutdown on ambient air quality;
6. At all times, the facility must be operated in a manner consistent with good practice for minimizing emissions, and the source must have used best efforts regarding planning, design, and operating procedures to meet the otherwise applicable emission limitation; and
7. The owner or operator's actions during startup and shutdown periods must be documented by properly signed, contemporaneous operating logs, or other relevant evidence.
B. GENERAL AFFIRMATIVE DEFENSE PROVISIONS RELATING TO STARTUP AND SHUTDOWN
In addition to the approach outlined in Section II(A) above, States may address the problem of excess emissions occurring during startup and shutdown periods through an enforcement discretion approach. Further, except in the case where a single source or small group of sources has the potential to cause an exceedance of the NAAQS or PSD increments, States may also adopt for their SIPs an affirmative defense approach. Using this- 6 - approach, all periods of excess emissions arising during startup and shutdown must be treated as violations, and the affirmative defense provision must not be available for claims for injunctive relief. Furthermore, to be approved, such a provision must provide that the defendant has the burden of proof of demonstrating that:
1. The periods of excess emissions that occurred during startup and shutdown were short and infrequent and could not have been prevented through careful planning and design;
2. The excess emissions were not part of a recurring pattern indicative of inadequate design, operation, or maintenance;
3. If the excess emissions were caused by a bypass (an intentional diversion of control equipment), then the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
4. At all times, the facility was operated in a manner consistent with good practice for minimizing emissions;
5. The frequency and duration of operation in startup or shutdown mode was minimized to the maximum extent practicable;
6. All possible steps were taken to minimize the impact of the excess emissions on ambient air quality;
7. All emission monitoring systems were kept in operation if at all possible;
8. The owner or operator's actions during the period of excess emissions were documented by properly signed, contemporaneous operating logs, or other relevant evidence; and
9. The owner or operator properly and promptly notified the appropriate regulatory authority.
If excess emissions occur during routine startup or shutdown periods due to a malfunction, then those instances should be treated as other malfunctions that are subject to the malfunction provisions of this policy. (Reference Part I above).

benne1l899a.wpd/AugusI11,1999