Bill Richardson

Governor

State of New Mexico

Office ofthe Governor

November 2, 2006

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Mayor Richard Greene

R(;gional Administrator

U.S. Environmental Protection Agency, Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

Dear Mayor Greene:

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On behalf of the 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 - Ambient Air 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 and Projects. The hearing

records for these SIP revisions are attached, which include the filed regulations, transcripts,

exhibits, public notices, affidavits of publication, notices of intent 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 of New 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

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State Capitol • Room 400 • Santa Fe, New Mexico 87501 • 505-476-2200 • www.govemor.state.nm.us
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NMAC TRANSMITTAL FORM

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P.O. Box 26110,1190 St. Francis Drive, Santa Fe, New Mexico 87502

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Environmental Protection

8/1/06

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Air Quality (Statewide) Ambient Air Quality Standards

9/6/06

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Limitation of Applicability to 20.2.70 NMAC 20.2.3.9 NMAC

Amended one f)e.ctiDn

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Date Si ned

SRC·2000-02

5/26/2000
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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 of this part are

not applicable requirements under 20.2.70 NMAC, as defined by that part. This section does not limit the

applicability ofthis part to sources required to obtain a permit under 20.2.72 NMAC, nor does it limit which terms

and conditions of permits issued pursuant 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
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NMACTRANSMITTAlFORM

1.24.10 NMAC [Sequence # ]

I Environmental Improvement Board 1_6_6_7_°° _

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P.O. Box 26110, 1190 St. Francis Drive, Santa Fe, New Mexico 87502

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IPhone # (505) - Name Tannis Fox FAX (505) 827-1628 827-1603

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

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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

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andInternet site(s) if

applicable

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SRC-2000-02

5/26/2000
This 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 a later date is cited at the end of a 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 of any section in this Part is 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

under Title IV ofthe federal act, and includes all sources subject to Title IV ofthe federal act.

B. "Affected programs" means all states, local air pollution control programs, and Indian tribes and

pueblos, 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 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 of any air pollutant, to the extent the administrator has identifIed such precursor or

precursors for the particular purpose for which the term "air pollutant" 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 of which would limit, capture, reduce, confIne, or otherwise control regulated air pollutants or

convert for the purposes of control any regulated air pollutant to another form, another chemical or another physical

state. This includes, but is not limited to, sulfur recovery units, acid plants, baghouses, precipitators, scrubbers,

cyclones, water sprays, enclosures, catalytic converters, and steam or water injection.

E. "Applicable requirement" means all of the following, as they apply to a Part 70 source or to an

emissions [I:lflits] unit at a Part 70 source (including requirements that have been promulgated or approved by the

board or US EPA through rulemaking at the time ofpermit issuance but have future-effective compliance dates)[-:-L

(1) Any standard or other requirement provided for in the New Mexico state implementation plan

approved by US EPA, or promulgated by US EPA through rulemaking, under Title I ofthe federal act to implement

the relevant requirements of the federal act, including any revisions to that plan promulgated in 40 CFR, Part 52[~L

(2) Any term or condition of any preconstruction permit issued pursuant to regulations approved or

promulgated through rulemaking under Title I, including Parts Cor D, ofthe federal act, unless that term or

condition is determined by the department to be no longer pertinent[tL

(3) Any standard or other requirement under Section 111 ofthe federal act, including Section

11 1(d)[tL

(4) Any standard or other requirement under Section 112 ofthe federal act, including any

requirement concerning accident prevention under Section l12(r)(7) ofthe federal act[tL

(5) Any standard or other requirement ofthe acid rain program under Title IV ofthe federal act or the

regulations promulgated thereunder[~L

(6) Any requirements established pursuant to Section 504(b) or Section 114(a)(3) ofthe federal act[tL

(7) Any standard or other requirement governing solid waste incineration under Section 129 ofthe

federal act[tL

(8) Any standard or other requirement for consumer and commercial products under Section 183(e)

ofthe federal act[tL

(9) Any standard or other requirement 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 not be

contained in a Title V permit[tl

(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 pursuant to Section 504(e) of the federal act[t-aHd]~

(13) Any regulation 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. "Draft permit" means a version of a permit which the department offers for public participation

or affected program review.

H. "Emission limitation" means a requirement established by US EPA, the board, or the

20.2.70 NMAC
department, 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 of a 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 department or determined at

issuance or renewal 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 of a stationary source that emits or has the potential

to emit any regulated air pollutant or any air pollutant listed pursuant to 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 pursuant to 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 approved pursuant to 40 CFR Part 51, Subpart I, including 40 CFR 51.165 and 40 CFR 51.166.

L. "Final permit" means the version of an operating permit issued by the department that has met

all review requirements of 20.2.70.400 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.

N. "General permit" means an operating permit that meets the requirements of20.2.70.303 NMAC.

O. "Hazardous air pollutant" means an air contaminant that 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 department 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 adjacent properties, 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.[7]

(a) For pollutants other than radionuclides, any stationary source or group ofstationary 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 of any 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 of any such pollutant, as determined by rule by the administrator), or such lesser

quantity as the administrator may establish by 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 administrator by

rule.

(2) A major stationary source of air pollutants that directly emits or has the potential to emit, 100 or

more tons per year of any air pollutant (including any major source offugitive emissions of any such pollutant, as

determined by rule by the administrator). The fugitive emissions of a 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 ofthe following categories ofstationary sources:

(a) coal cleaning plants (with thermal dryers);

(b) kraft pulp mills;

(c) portland cement plants;

(d) primary zinc smelters;

(e) iron and steel mills;

(f) primary aluminum ore reduction plants;

(g) primary copper smelters;

(h) municipal incinerators capable of charging more than 250 tons ofrefuse per day;

20.2.70 NMAC 2
(i) hydrofluoric, sulfuric, or nitric acid plants;

(j) petroleum refineries;

(k) lime plants;

(1) phosphate rock processing plants;

(m) coke oven batteries;

(n) sulfur recovery plants;

(0) carbon black plants (furnace process);

(P) primary lead smelters;

(q) fuel conversion plant;

(r) sintering plants;

(s) secondary metal production plants;

(t) chemical process plants;

(u) fossil-fuel boilers (or combination thereot) 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 of more than 250 million British thermal units per hour

heat input;

(aa) any other stationary source category, which as of August 7, 1980 is being regulated under

Section 111 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

of volatile 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 that the references in this paragraph to 100,50,25, and 10 tons per

year of nitrogen oxides shall not apply with respect to any source for which the administrator has made a fmding,

under Section 182(t)(l) or (2) ofthe federal act, that requirements under Section 182(t) of the federal act do not

apply;

(b) for ozone transport regions established pursuant to Section 184 ofthe federal act, sources

with the potential to emit 50 tons or more per year of volatile 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 under rules issued by the

administrator, sources with the potential to emit 50 tons or more per year of carbon monoxide; and

(d) for particulate matter (PMI0) non-attainment areas classified as "serious," sources with the

potential to emit 70 tons or more per year ofPMlO.

R. "Operating permit" or "permit" (unless the context suggests otherwise) means any permit or

group of permits covering a source that is issued, renewed, modified or revised pursuant to this part.

S. "Operator" means the person or persons responsible for the overall operation of a facility.

T. "Owner" means the person or persons who own a facility or part of a facility.

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 subject to 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 permit that meets the requirements of

significant permit modifications, minor permit modifications, or administrative permit amendments, as defmed in

20.2.70.404 NMAC.

X. "Permittee" means the owner, operator or responsible official at a permitted Part 70 source, as

identified in any permit application or modification.

Y. "Portable source" means any plant that is mounted on any chassis or skids and which can be

moved by the application of a lifting or pulling force. In addition, there shall be no cable, chain, turnbuckle, bolt or

other means (except electrical connections) by which any piece of equipment is attached or clamped to any anchor,

slab, or structure, including bedrock, that must be removed prior to the application of a lifting or pulling force for the

purpose oftransporting the unit. Portable sources may include sand and gravel plants, rock crushers, asphalt plants

20.2.70 NMAC 3
and concrete batch plants which meet this criteria.

Z. "Potential to emit" means the maximum capacity of a stationary source to emit any air pollutant

under its physical and operational design. Any physical or operationallirnitation on the capacity of a source to emit

an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or

amount of material combusted, stored, or processed, shall be treated as part ofits design if the limitation is federally

enforceable. The potential to emit for nitrogen dioxide shall be based on total oxides of nitrogen.

AA. "Proposed permit" means the version of a permit that the department proposes 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 suspended particulate matter, or any volatile organic compounds;

(2) any pollutant for which a national ambient air quality standard has been promulgated;

(3) any pollutant that is subject to any standard promulgated under Section 111 ofthe federal act;

(4) any class lor II substance subject to any standard promulgated under or established by Title VI of

the federal act; or

(5) any pollutant subject to a standard promulgated under Section 112 or any other requirements

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 established pursuant to Section 112(e) of the 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) any pollutant for which the requirements of Section 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 a permit is reissued at the end of its term.

AD. "Responsible official" means one ofthe following.

(1) For a corporation: a president, secretary, treasurer, or vice-president ofthe corporation in charge

of a principal business function, or any other person who performs similar policy or decision-making functions for

the corporation, or a dilly authorized representative ofsuch person ifthe representative is responsible for the overall

operation of one or more manufacturing, production, or operating facilities applying for or subject to 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 of authority to such representative is approved in

advance by the department.

(2) For a partnership or sole proprietorship: a general partner or the proprietor, respectively.

(3) For a municipality, state, federal or other public agency: either a principal executive officer or

ranking elected official. For the purposes ofthis part, a principal executive officer of a federal agency includes the

chief executive officer having responsibility for the overall operations of a principal 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, or prohibitions under Title IV ofthe federal act or the regulations

promulgated thereunder are concerned, and for any other purposes 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 permit terms and conditions that

are monitoring (including test methods), recordkeeping, reporting, or compliance certification requirements.

AF. "Shutdown" means the cessation of operation of any air pollution control equipment, process

equipment or process for any purpose.

AG. "Solid waste incineration unit" means a distinct operating unit of any 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) incinerators or other units required to have a permit under Section 3005 of the federal Solid Waste

Disposal Act;

. (2) materials recovery facilities (including primary or secondary smelters) which combust waste for

the primary purpose ofrecovering metals;

(3) qualifying small power production 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) of the Federal

Power Act (16 U.S.C. 796(18)(B)), which burn homogeneous waste (such as units which burn tires or used oil, but

not including refuse-derived fuel) for the production of electric energy or in the case of qualifying cogeneration

facilities which burn homogeneous waste for the production of electric energy and steam or forms of useful 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 established by the administrator

by rule.

AH. "Startup" means the setting into operation of any 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 thereof that emits or may emit any regulated air pollutant or any pollutant listed under Section l12(b)

ofthe federal act.

AJ. "Subsidiary" means a business concern which is owned or controlled by, or is a partner of, the

applicant or permittee.

AK. "Temporary source" means any plant that 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 a new site. A temporary

source may be semi-permanent, which means that is does not have to meet the requirements of a portable 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 in method of operations that is subject to the preconstruction regulations promulgated

under Parts 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 FOR A PERMIT:

A. A Part 70 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 or EPA; or

(2) a timely 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 or termination of a permit by the department terminates the permittee's right to

operate.

C. The submittal of a complete operating permit application shall not 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 permit under 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 a permit under 20.2.72 NMAC within 180 days of

September 6, 2006. The department shall consider and may grant reasonable requests for extension ofthis deadline

on a case-by-case basis.

(2) Part 70 sources that do not have an operating permit or a permit under 20.2.72 NMAC upon the

effective date of this subsection shall submit an application for a permit under 20.2.72 NMAC within 60 days after

submittal of an application for an operating permit.

(3) Paragraphs 1 and 2 ofthis subsection shall not apply to sources that have demonstrated

compliance with both the national and state ambient air quality standards through dispersion modeling or other

method approved by the department and that have requested incol]Joration of conditions 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 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 a permit under this part is:

(1) 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) of

Subsection B of 20.2.70.300 NMAC;

(2) for purposes of permit renewal, one that is submitted at least twelve (12) months prior to the date

ofpermit expiration(~]~

20.2.70 NMAC 5
(3) for the acid rain portion of permit applications for initial phase II acid rain sources under Title IV

of the federal act, by January 1, 1996 for sulfur dioxide, and by January 1, 1998 for nitrogen oxides[~];

[(4) Transition seheoole. A timely applieation for a Part 70 sow=ee whieh is in operation on or before

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, by february 2, 1995, exeept that persons o'Nmng more than one SOl:lf€ein this eategory may slibmit

applieations for half oftheir 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 prior to 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 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 of whether it has been determined or deemed to be

complete, the department determines that additional information is necessary to evaluate or take fmal 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 or who has submitted incorrect information

in a permit 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 of a draft permit.

(4) The applicant's ability to operate without a permit, as set forth in Paragraph (2) of Subsection 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 by the deadline

specified by the department.

D. Content of application[~L Any person seeking a permit under this part shall do so by filing a

written application with the department. The applicant shall submit three (3) copies ofthe permit application, or

more, as requested by the department. 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 emission fees). Fugitive emissions shall be included in the permit application in the same manner

as stack emissions, regardless of whether 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) Be made on forms furnished by the department, which for the acid rain portions ofpermit

applications and compliance plans shall be on nationally-standardized forms to the extent required by regulations

promulgated under Title IV of the federal act[;L

(2) State the company's name and address (and, if different, 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 or principal registration to do business and corporate or

partnership relationship to other permittees subject to 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 surveyor the most detailed map

available showing the exact location ofthe source. The location shall be identified by latitude and longitude or by

UTM coordinates[;L

(5) For all emissions of all air pollutants 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 of all components ofthe facility which would be involved in routine

operations and emissions;

(b) identification and description of all 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 per year, pounds per hour and in such tenns as are necessary to

establish compliance consistent with the applicable standard reference test method;

(d) specific infonnation such as that regarding fuels, fuel use, raw materials, or production

rates, to the extent it is needed to determine or regulate emissions;

(e) identification and full description, including all calculations and the basis for all control

efficiencies presented, of air pollution control equipment and compliance monitoring devices or activities;

(f) the maximum and standard operating schedules ofthe source, as well as any work practice

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) other relevant infonnation as the department may reasonably require or which are required

by any applicable requirements (including infonnation related to stack height limitations developed pursuant to

Section 123 ofthe federal act); and

(i) for each alternative operating scenario identified by the applicant, all of the infonnation

required in Subparagraphs (a) through (h) above, as well as additional infonnation determined to be necessary by 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 extent required by the department, and any infonnation necessary to determine applicable

requirements[t]~

(7) Provide a citation and description of all applicable air pollution control requirements, including:

(a) sufficient infonnation related to the emissions ofregulated air pollutants to verify the

requirements that are applicable to the source; and

(b) a description of or reference to any applicable test method for determining compliance with

each applicable requirement[tt

(8) Provide an explanation of any proposed exemptions from otherwise applicable requirements[t]~

(9) Provide other specific infonnation that may 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 reqHifed under the tFaflsition scheffiI1e in paragraph (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 aif pollutant concentrations in eKcess of a-R-y national

ambient aif qHality standard. Air pollutants 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 Part 70 source issued a permit under 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 increased particulate

matter, sulfur dioKide, or nitrogen 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 ynth respect 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 of compliance, including[~] all ofthe following.

(a) A certification, by a responsible official consistent with Subsection E of 20.2.70.300

NMAC, of the 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 pennit under 20.2.72 NMAC.

(iil For pennit renewal applications, this certification shall be 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 statement that 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 that become effective during the pennit tenn[tt

20.2.70 NMAC 7
20.2.70.302

A.

(d) A schedule for submission of compliance certifications during the permit term, to be

submitted no less frequently than annually, or more frequently ifspecified by the underlying applicable requirement

or by 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 with respect to all applicable

requirements[~L

(b) A narrative description of how the source will achieve compliance with such requirements

for which it is not in compliance[~L

(c) A schedule of remedial measures, including an enforceable sequence of actions with

milestones, leading to compliance with such applicable requirements. The schedule of compliance 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 of any consent decree or administrative order shall not be in any way diminished by the schedule of

compliance. Any such schedule of compliance shall be supplemental to, and shall not prohibit the department from

taking any enforcement action for noncompliance with, the applicable requirements on which it is based[~]~

(d) A schedule for submission of certified progress reports no less frequently than every six (6)

months[t-aRElL

(e) For the portion of each acid rain source subject to the acid rain provisions ofTitle IV ofthe

federal act, the compliance plan content requirements 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 certification by a responsible official oftruth, accuracy,

and completeness. This certification and any other certification required under this part shall state that, based on

information and belief formed after reasonable 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 a permit, including emission limitations and

sufficient operational requirements and limitations, to assure compliance with all applicable requirements at the time

of permit issuance or as specified in the approved schedule of compliance. 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 of and 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) include a severability clause to ensure the continued validity of the various permit

requirements in the event of a challenge to any portions ofthe permit;

(e) include a provision 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 significant permit modification that the department 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 [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 enforceable permit

conditions constitutes a violation ofthe federal act[~L

(b) It shall not be a defense for a permittee 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[~]~

(c) The permit may be modified, reopened and revised, revoked and reissued, or terminated for

20.2.70 NMAC 8
cause in accordance with 20.2.70.405 NMAC[tL

(d) The filing of a request by the permittee for a permit modification, revocation and

reissuance, or termination, or of a notification of planned changes or anticipated noncompliance shall not stay any

permit condition[tL

(e) The permit does not convey any property rights of any sort, or any exclusive privilege[tL

(f) Within the period specified by the department, the permittee shall furnish any information

that the department may request in writing to determine whether cause exists for reopening and revising, revoking

and reissuing, or termination of the permit or to determine compliance with the permit. Upon request, the permittee

shall also furnish to the department copies ofrecords required by the permit to be maintained.

(3) The terms and conditions for all alternative operating scenarios identified in the application and

approved by 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 under which 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 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 not being federally

enforceable under the federal act any terms or conditions included in the permit that are not required under the

federal act or under any ofits applicable requirements.

(6) The issuance of a permit, or the filing or approval of a compliance plan, 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 or

regulation.

(7) The department may include part or all of the contents ofthe application as terms and conditions

ofthe permit or permit modification. The department shall not apply permit terms and conditions upon emissions of

regulated 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 in the operating permit in the same manner as

stack emissions, regardless of whether the source category in question is included in the list ofsources contained in

the definition ofmajor source.

(9) The acid rain portion of operating permits for acid rain sources shall additionally:

(a) state that, where an applicable requirement of the 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) contain a permit condition prohibiting emissions exceeding any allowances that the acid

rain source lawfully holds under Title IV ofthe federal act or the regulations promulgated thereunder; no permit

modification under this part shall be required for increases in emissions that are authorized by allowances acquired

pursuant to 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 of allowances 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 duration[;-L The department shall issue operating permits for a fixed term of five (5) years.

C. Monitoring[;-L

(1) Each permit shall contain all emissions monitoring requirements, and analysis procedures or test

methods, required to assure and verify compliance with the terms and conditions of the 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 of recordkeeping 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 reported pursuant to Subsection E of 20.2.70.302 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 9
appropriate, 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 that performed 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 of all monitoring data and support information shall be retained for a period of at 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 of all reports required by the permit.

E. Reporting[ot The permit shall require reporting sufficient to assure and verify compliance with

the terms and conditions ofthe permit and all applicable requirements, including[o] all ofthe following.

(1) Submittal ofreports of any required monitoring at least every six (6) months. The reports shall be

due to the department within forty-five (45) days ofthe end ofthe permittee's reporting period. All instances of

deviations from permit requirements, including emergencies, must be clearly identified in such reports. All required

reports must be certified by a responsible official consistent with Subsection E of20.2.70.300 NMAC[~]~

(2) Prompt reporting of all deviations (including emergencies) from permit requirements, including

the date, time, duration and probable cause ofsuch deviations, the quantity and pollutant type of excess 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 of the next business day and

written notification within ten (10) days[~]~

(3) Submittal of compliance 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 aflplieable reqairements relevant to the sOl:lfee], including

[those related to] emission limitations, standards, or work practices. 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 of each term or condition ofthe permit that is the basis of the 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 department may require to determine the compliance status ofthe

source[~t

(4) Such additional provisions as may be specified by 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. Such permits 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 other provisions ofthis part at

all authorized locations;

(3) the owner or operator shall notify the department in writing at least fifteen (15) calendar days in

advance of each change in location;

(4) notification shall include a legal description of where 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 of a

national ambient air quality standard or increment or visibility requirement under Part C of Title I of the 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 of credentials and other documents as may be required by law, the

20.2.70 NMAC 10
permittee shall allow authorized representatives ofthe department to perform the following:

(a) enter 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) have access to and copy any records that must be kept under the 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) sample or monitor any substances or parameters 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 under Paragraph (12) of Subsection D of20.2.70.300 NMAC to

have a schedule of compliance submit progress reports to the department at least semiannually, or more frequently if

specified in the applicable requirement or by the department. Such progress reports shall be consistent with the

schedule of compliance and requirements of Paragraph (12) of Subsection 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 of why any dates in the schedule of compliance were not or will not be met,

and any preventive or corrective measures adopted.

(3) Include such other provisions 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 permit 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 of emissions or in

terms oftotal emissions).

(b) For each such change, the permittee shall provide written notification to the [9]gepartment

and the administrator at least seven (7) days in advance of the proposed changes. Such notification shall include a

brief description 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 of the relevant

permit.

(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 permit remain fully enforceable.

(2) Emissions trading within a facility[.;L

(a) The department shall, if an applicant requests it, issue permits that contain terms and

conditions allowing for the trading of emissions increases and decreases in the permitted facility solely for the

purpose of complying 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. If applicable 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 application proposed 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 that will result and how these increases and decreases

in emissions will comply with the terms and conditions ofthe permit.

(d) The permittee and department shall attach each such notice to their copy of the relevant

permit.

I. Off-Permit Changes[.;];

(1) Permittees are allowed to make, without a permit 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 11
permit term or condition;

(b) such changes are not subject to any requirements under Title 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

of each 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 at the source that result in emissions

of a 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 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 of permit 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 significant permit 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 that provision.

(3) Nothing in this section or in any Part 70 (20.2.70 NMAC) pennit shall alter or affect the

following:

(a) the provisions of Section 303 ofthe federal act -- Emergency Powers, including the

authority ofthe administrator under that section, or the provisions ofthe New Mexico Air Quality Control Act,

Section 74-2-10 NMSA 1978;

(b) the liability of an owner or operator of a source for any violation of applicable requirements

prior to or at the time ofpennit issuance;

(c) the applicable requirements of the acid rain program, 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 Air Quality Control Act, Section 74-

2-13 NMSA 1978.

(4) The permit shield shall remain in effect if the permit terms and conditions are extended past the

expiration date ofthe permit pursuant to Subsection D of 20.2.70.400 NMAC.

(5) The permit shield shall extend to terms and conditions that allow emission increases and

decreases as part of emissions trading within a facility pursuant to Paragraph (2) of Subsection H of 20.2.70.302

NMAC, and to all terms and conditions under each operating scenario included pursuant to Paragraph (3) of

Subsection A of 20.2.70.302 NMAC.

(6) The permit shield shall not extend to administrative amendments under Subsection A of

20.2.70.404 NMAC, to minor permit modifications under Subsection B of 20.2.70.404 NMAC, to Section

502(b)(10) changes under Paragraph (l) of Subsection H of 20.2.70.302 NMAC, or to permit terms or conditions for

which notice has been given to reopen or revoke all or part under 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 of the section names are identified - Vickie - Please explain.

A. An "emergency" means any situation arising from sudden and reasonably unforeseeable events

beyond the control ofthe permittee, including acts of God, 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 through properly signed,

20.2.70 NMAC 12
contemporaneous operating logs, or other relevant 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 of the 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 under Paragraph (2) of Subsection 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 of an emergency

has the burden of proof.

D. This provision is in addition to any emergency or upset provision contained in any applicable

requirement[, except that Part 70 sources shall not be subjeet to the provisions 0[20.2.7 N1>.4AC (Excess Emissions

during Malfunction, Startap, Shutdown, or Scheduled Maintenance) for permit terms 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 13
f: - !~ -,; ,~ " ..J _,

NMAC TRANSMITIAL FORM

1.24.10 NMAC [Sequence #

66700

t4aJE',) " .- '. '" cfrf ... "'~-' i ,.\' ·}q~l,"'''''''' ';1. ~-.-~

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P.O. Box 26110, 1190 St. Francis Drive, Santa Fe, New Mexico 87502

1~!,Q;nGfr--<;-"':'" ,.",;"1f; .••:;~'1- - -. - ,.. , ., 'I~ .. {·.,;~t-t7,'~'rp"·j(::)'$~~;

Name Tannis Fox . I(50S) - Ph~ne FAX (50S) 827-1628 # 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

and Internet 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 ifdelegated

authority 0

Title:

g~/-Ob

Date Signed

SRC-2000-02

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

, "

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1; c,

20.2.72.216

A.

NONATTAINMENT AREA REQUIREMENTS:

The requirements of this section apply to:

(1) a new source or modification of an existing source that [whiefl] will emit a regulated air

contaminant such that 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 of an existing source that [wlHeh] is not a major stationary source or

major modification 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 not meet the national ambient air quality standard for the contaminant[~]

(3) an existing source that does not propose an increase in emissions and that will emit a regulated 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 or New Mexico ambient air Quality

standard for the contaminant.

B. A new source or modification of an 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

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); and

(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 of at

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 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- $.c! .~~-

•..Jdt.1'$ ~~

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 certify that a copy ofthe forgoing NOTICE OF DOCKETING is: 1.)

hand-delivered to Tracy Hughes, General Counsel, Office of General 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 Improvement Board

Post Office Box 26110

Santa Fe, New Mexico 87502

(505) 827-2425 P

(505) 827-2836 F
BILL RICHARDSON

Governor

State o/New Mexico

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 Improvement Board

Harold Runnels Building, Rm N-2153

1190 St. Francis Drive

Santa Fe, New Mexico 87502

Re: Petition for Public Hearing to Consider Proposed Amendments to Title 20, Chapter

2, Part 70 of the 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 on proposed amendments to

one of the 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 the public 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 of emissions 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 December
Ms. Gay Dillingham

August 22, 2005

Page 2

2005. Enclosed is a copy of the 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 occur prior to the December 2005 EIB meeting and the Bureau will

provide the Board with an updated version ofthe rules at that time.

Thank you for your consideration ofthis request.

Enclosure

cc: Jim Norton, Environmental Protection Division Director

Gregory Green, Member, EIB

Dolores Herrera, Member, EIB

Ken Marsh, Member, EIB

Soren Peters, Member, Em

Clifford Stroud, Member, Em

Harold Tso, Member, EIB

Mary Smith, Counsel, EIB
The Department proposes that the Board adopt the following revisions to 20.2.70 NMAC -

Operating Permits.

20.2.70.5

section.

EFFECTIVE DATE: 11130/95, except where a later date is cited at the end of a

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 subject to title IV ofthe

Federal Act.

B. "Affected programs" means all [S]~tates, local air pollution control programs,

and Indian [+]1ribes and [P]pueblos, 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

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 of any air pollutant,

to the extent the Administrator has identifIed such precursor or precursors for the particular

purpose for which the term "air pollutant" 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 of which would limit, capture, reduce, confme, or otherwise

control regulated air pollutants or convert for the purposes of control any regulated air pollutant

to another form, another chemical or another physical state. This includes, but is not limited to,

sulfur recovery 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 or to an emissions unit[5] at a Part 70 source (including requirements that have been

promulgated or approved by the Board or US EPA through rulemaking at the time of permit

issuance but have future-effective compliance dates)[.;],,-

(1) Any standard or other requirement provided for in the New Mexico state

implementation plan 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 CF~ Part 52[;],,-

(2) Any term or condition of any preconstruction permit issued pursuant to

regulations approved or promulgated through rulemaking under title I, including parts Cor D, of

the Federal Act, unless that term or condition is determined by the Department to be no longer

pertinent[;]".

(3) Any standard or other requirement under section 111 ofthe Federal Act,

including section I II(d)[;]".

(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[;J".

(5) Any standard or other requirement ofthe acid rain program under title IV of

the Federal Act or the regulations promulgated thereunder[;],,-

20.2.70 NMAC Proposed Revisions Page 1 of18
(6) Any requirements established pursuant to section 504(b) or section 114(a)(3)

ofthe Federal Act[;t

(7) Any standard or other requirement governing solid waste incineration under

section 129 ofthe Federal Act[;].:.

(8) Any standard or other requirement 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) ofthe

Federal Act[;t

(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 not be contained in a title V permit[;t

(11) Any national ambient air quality standard[;].:.

(12) Any increment or visibility requirement under part C oftitle I ofthe Federal

Act, but only as it would apply to temporary sources permitted pursuant to 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 of Federal Regulations.

G. "Draft permit" means a version of a permit which the Department offers for

public participation or affected program review.

H. "Emission limitation" means a requirement established by US EPA, the Board,

or the [I}]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 of a 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 [I)]gepartment or determined at issuance or renewal 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 of a stationary source that emits or

has the potential to emit any regulated air pollutant or any air pollutant listed pursuant to 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 pursuant to 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 approved pursuant to 40

CFR Part 51, Subpart I, including 40 CFR 51.165 and 40 CFR 51.166.

L. "Final permit" means the version of an operating permit issued by the

[I)]gepartment that has met all review requirements of 20.2.70.400 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 of18
N. "General permit" means an operating permit that meets the requirements of

20.2.70.303 NMAC.

O. "Hazardous air pollutant" means an air contaminant that 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

[Q]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 adjacent properties, 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 defmed as the

following. [~]

(a) For pollutants other than radionuclides, any stationary source or group of

stationary sources located within a contiguous area and under cornmon control that emits or has

the potential to emit, in the aggregate, 10 tons or more per year of any 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 of any such pollutant, as determined by rule by the Administrator), or such lesser

quantity as the Administrator may establish by 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 Administrator by rule.

(2) A major stationary source of air pollutants that directly emits or has the

potential to emit, 100 or more tons per year of any air pollutant (including any major source of

fugitive emissions of any such pollutant, as determined by rule by the Administrator). The

fugitive emissions of a 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 (with thermal dryers)[;]

(b) Kraft pulp mills[;]

(c) Portland cement plants[;]

(d) Primary zinc smelters[;]

(e) Iron and steel mills[;]

(f) Primary aluminum ore reduction plants[;]

(g) Primary copper smelters[;]

(h) Municipal incinerators capable of charging more than 250 tons ofrefuse

per day[;]

(i) Hydrofluoric, sulfuric, or nitric acid plants[;]

(j) Petroleum refineries[;]

(k) Lime plants[;]

20.2.70 NMAC Proposed Revisions Page 3 of 18
(I) Phosphate rock processing plants[~]

(m) Coke oven batteries[~]

(n) Sulfur recovery plants[~]

(0) Carbon black plants (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 (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 million British

thermal units per hour 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 part 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 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 that the references in this paragraph to 100,50,25, and 10 tons per year of

nitrogen oxides shall not apply with respect to any source for which the Administrator has 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 of volatile 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 under rules issued by the Administrator, sources with the potential to emit 50 tons

or more per year of carbon monoxide; and

(d) [F]for particulate matter (PMI0) non-attainment areas classified as

"serious," sources with the potential to emit 70 tons or more per year ofPM10.

R. "Operating [P]I!.ermit" 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 or persons responsible for the overall operation of

a facility.

T. "Owner" means the person or persons who own a facility or part of a 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 subject to 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 pennit that meets the

requirements ofsignificant pennit modifications, minor permit modifications, or administrative

pennit amendments, as defmed in 20.2.70.404 NMAC.

X. "Permittee" means the owner, operator or responsible official at a permitted Part

70 source, as identified in any pennit application or modification.

Y. "Portable [S]~ource" means any plant that is mounted on any chassis or skids

and which can be moved by the application of a lifting or pulling force. In addition, there shall

be no cable, chain, turnbuckle, bolt or other means (except electrical connections) by which any

piece of equipment is attached or clamped to any anchor, slab, or structure, including bedrock,

that must be removed prior to the application of a lifting or pulling 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 of a stationary source to emit

any air pollutant under its physical and operational design. Any physical or operational

limitation on the capacity of a source to emit an air pollutant, including air pollution control

equipment and restrictions on hours ofoperation or on the type or amount of material 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 of nitrogen.

AA. "Proposed permit" means the version of a pennit that the [9].department

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 pollutant that is subject to 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 subject to 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 subject to requirements under section 1120) ofthe Federal

Act. Ifthe Administrator fails to promulgate a standard by the date established pursuant 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) any pollutant 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 a pennit is reissued at the 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, or vice-president ofthe

corporation in charge of a principal 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 of one or more

manufacturing, production, or operating facilities applying for or subject to 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 of authority to such

representative is approved in advance by the [f)]gepartment.

(2) For a partnership or sole proprietorship: a general partner or the proprietor,

respectively.

(3) For a municipality, state, federal or other public agency: either a principal

executive officer or ranking elected official. For the purposes ofthis Part, a principal executive

officer of a federal agency includes the chief executive officer having responsibility for the

overall operations of a principal geographic unit ofthe agency (e.g., a Regional Administrator of

US EPA).

(4) For an acid rain source: the designated representative (as defmed in section

402(26) ofthe Federal Act) in so far as actions, standards, requirements, or prohibitions under

title IV ofthe Federal Act or the regulations promulgated thereunder are concerned, and for any

other purposes under 40 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 permit terms and conditions that are monitoring (including test methods),

recordkeeping, reporting, or compliance certification requirements.

AF. "Shutdown" means the cessation of operation of any air pollution control

equipment, process equipment or process for any purpose.

AG. "Solid waste incineration unit" means a distinct operating unit of any 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]incinerators 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 power production facilities, as defmed in section 3(17)(C)

ofthe Federal Power Act (16 U.S.C. 796(17)(C), or qualifying cogeneration facilities, as

defmed 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 of electric energy or in the case of qualifying cogeneration facilities

which bum homogeneous waste for the production of electric energy and steam or forms 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 bum wood

wastes, yard wastes and clean lumber and that such air curtain incinerators comply with opacity

limitations established by the Administrator by rule.

20.2.70 NMAC Proposed Revisions Page 6 ofl8
AH. "Startup" means the setting into operation of any 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

pollutant listed under section 112(b) ofthe Federal Act.

AJ. "Subsidiary" means a business concern which is owned or controlled by, or is a

partner of, the applicant or permittee.

AK. "Temporary [S]~ource" means any plant that 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 a new site. A temporary source may be semi-permanent, which means that is

does not have to meet the requirements of a portable source. Temporary sources may include

well head compressors which meet this criteria.

AL. "Title I [M]!!!odification" means any modification under sections 111 or 112 of

the Federal Act and any physical change or change in method of operations that is subject to the

preconstruction regulations promulgated under Parts C and D ofthe Federal Act.

20.2.70.300 PERMIT APPLICATIONS:

A. Duty to apply[-;J,. For each 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 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 of permit renewal, one that is submitted at least twelve (12)

months prior to the date of permit expiration[~]~

(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) FFJ!ransition schedule[~t [A]~ timely application for a Part 70 source which is

in operation on or before December 19, [+99§.] 1994 is one that is submitted:

(a) [F]for sources, except natural gas processing plants, which have been

issued a permit, including a permit modification, pursuant to 20.2.72 NMAC, 20.2.74 NMAC, or

20.2.79 NMAC on or after January 1, 1987, by February 2, 1995, except that persons owning

more than one source in this category may submit applications for half oftheir sources by

February 2, 1995 and submit the remaining applications by March 19, 1995;

(b) [F]for sources, except natural gas processing plants, which were issued a

permit, including a permit 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;

(c) [F]for all other sources, by December 19, 1995.

C. Completeness of[A]~pp1ication[-;]~

(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.

20.2.70 NMAC Proposed Revisions Page 7 of 18
(2) If, while processing an application, regardless ofwhether it has been

determined or deemed to be complete, the [91gepartrnent determines that additional information

is necessary to evaluate or take 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 or who has submitted

incorrect information in a permit 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 of a draft permit.

(4) The applicant's ability to operate without a permit, 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 [I)]gepartrnent.

D. Content of [A]f!:pplication[;]:. Any person seeking a permit under this Part shall do

so by filing a written application with the [I)]gepartment. The applicant shall submit three (3)

copies ofthe permit application, or more, as requested by the [9]gepartrnent. 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

Emission Fees). Fugitive emissions shall be included in the permit application 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. 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 on nationally-standardized forms

to the extent required by regulations promulgated under title IV ofthe Federal Act[tl:.

(2) State the company's name and address (and, if different, 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 of

incorporation or principal registration to do business and corporate or partnership relationship to

other permittees subject to this Part, and the telephone numbers and names ofthe owners'

agent(s) and the site contact(s) familiar with plant operations[~]:.

(3) State the date ofthe application[tl:.

(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 Surveyor the most detailed map available showing the exact location

ofthe source. The location shall be identifIed by latitude and longitude or by UTM

coordinates[t]:.

(5) For all emissions ofall air pollutants 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

defmed in 20.2.70.7 NMAC). lIDs shall include:

(a) [A]f!: process flow sheet of all 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 of all emissions points in sufficient

detail to establish the 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 standard reference test

method;

(d) [81~pecific information such as that regarding fuels, fuel use, raw

materials, or production rates, to the extent it is needed to determine or regulate emissions;

(e) [IJidentification and full description, including all calculations and the

basis for all control efficiencies presented, of air pollution control equipment and compliance

monitoring devices or activities;

(1) [+]!he maximum and standard operating schedules ofthe source, as well

as any work practice 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 taken to mitigate source emissions during startups, shutdowns and emergencies;

(h) [Q]Qther relevant information as the [D]gepartment may reasonably

require or which are required by any applicable requirements (including information related to

stack height limitations developed pursuant to section 123 ofthe Federal Act); and

(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 [D]gepartment to define such alternative

operating scenarios[;l.

(6) Provide a list ofinsignificant activities (as defined in 20.2.70.7 NMAC) at the

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 of all applicable air pollution 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) [Al~ description ofor reference to any applicable test method for

determining compliance with each applicable requirement[;l.

(8) Provide an explanation of any proposed exemptions from otherwise applicable

requirements[;L

(9) Provide other specific information that may be necessary to implement and

enforce other requirements ofthe state or Federal Acts or to 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 under the 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 with New Mexico and US EPA modeling guidelines, showing whether

emissions from the source would cause air pollutant concentrations in excess of any national

ambient air quality standard, except ozone. Air pollutants [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 Proposed Revisions Page 9 of 18
need not be modeled. The modeling analysis shall not include emissions from insignificant

activities located at the source, emissions from any sources surrounding the facility being

modeled, or background concentrations. The department may require modeling with respect to

ozone ifthe department determines that emissions from the source may cause or contribute to

ozone concentrations in excess ofthe national ambient air quality standard.

[Ea) This requirement shall not apply to the fulloVtIDg:

Ei) l'.. Part 70 source issued a permit under 20.2.72 NMt\C, 20.2.74

NMAC, 20.2.79 NMAC after January 1, 1986; or

(ii) A Part 70 source subject to 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 increased particulate matter, sulfur dioxide, or nitrogen oxide emissions have

occurred since the time modeling VIaS perfonned fur that facility as part ofre'visions to those

regulations.

(b) The Department may 'Naive modeling ',vith 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.]

(11) Provide certification of compliance, 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:

0) for first time applications for sources that have submitted modeling with

an application under 20.2.72 NMAC - Construction Permits, this certification shall be based on

such modeling;

(ii) for first time applications for sources that have not submitted modeling

with an application under 20.2.72 NMAC - Construction Permits, this certification shall be based

on the modeling required by paragraph 10 ofthis subsection;

(iii) for permit renewal 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[;l.

(c) A statement that 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 that become effective during the permit term[;]",-

(d) A schedule for submission of compliance certifications during the permit

term, to be submitted no less frequently than annually, or more frequently ifspecified by the

underlying applicable requirement or by the [g]4epartment [;--andl.

(e) A statement indicating the source's compliance status with any enhanced

monitoring and compliance certification requirements ofthe Federal Act.

(12) 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.

(a) A description ofthe compliance status ofthe source with respect to all

applicable requirements[;l.

(b) A narrative description of how the source will achieve compliance with

such requirements for which it is 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

of compliance 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 of any consent decree or

administrative order shall not be in any way diminished by the schedule of compliance. Any

such schedule of compliance shall be supplemental to, and shall not prohibit the [91gepartment

from taking any enforcement action for noncompliance with, the applicable requirements on

which it is based[tL

(d) A schedule for submission of certified progress reports no less

frequently than every six (6) months[;-aHdt

(e) For the portion of each acid rain source subject to the acid rain

provisions oftitle IV ofthe Federal Act, the compliance plan content requirements 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[-;-t Any document, including any application form, report, or

compliance certification, submitted pursuant to this Part shall contain certification by 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 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 at the time of permit 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 in the major source.

(b) [F]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.

(e) [S]~pecify and reference the origin of and 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 permit requirements in the event of a challenge to any portions ofthe permit;

(e) [I]include a provision to ensure that the permittee pays fees to the

[9]gepartment consistent with the fee schedule in 20.2.71 NMAC (Operating Permit Emission

Fees); and

(1) [F]for purposes ofthe permit shield, identify any requirement specifically

identified in the permit application or significant permit modification that the [9]gepartment has

determined is not applicable to the source, and state the basis for any such determination.

20.2.70 NMAC Proposed Revisions Page 11 of 18
(2) Each permit issued 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 enforceable permit conditions constitutes a violation ofthe Federal Act[;l.

(b) It shall not be a defense for a permittee 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[;l.

(c) The permit may be modified, reopened and revised, revoked and

reissued, or terminated for cause in accordance with 20.2.70.405 NMAC[;]-,

(d) The filing of a request by the permittee for a permit modification,

revocation and reissuance, or termination, or of a notification of planned changes or anticipated

noncompliance shall not stay any permit condition[;l.

(e) The permit does not convey any property rights of any sort, or any

exclusive privilege[;l.

(t) Within the period specified by the [g]gepartment, the permittee shall

furnish any information that the [g]gepartment 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

[g]gepartment copies ofrecords required by the 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 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) [Shhall, for each such alternative scenario, meet all applicable

requirements and the requirements ofthis Part.

(4) The [9]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, 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 not being federally enforceable under the Federal Act any

terms or conditions included in the permit that are not required under the Federal Act or under

any ofits applicable requirements.

(6) The issuance of a permit, or the filing or approval of a compliance plan, 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 or regulation.

(7) The [g]gepartment may include part or all ofthe contents ofthe application as

terms and conditions ofthe permit or permit modification. The [g]gepartment 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 in the operating permit in

the same manner as stack emissions, regardless of whether the source category in question is

included in the list ofsources contained in the definition ofmajor source.

20.2.70 NMAC Proposed Revisions Page 12 of18
(9) The acid rain portion of operating permits for acid rain sources shall

additionally:

(a) [S]~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]fontain a permit condition prohibiting emissions exceeding any

allowances that the acid rain source lawfully holds under title IV ofthe Federal Act or the

regulations promulgated thereunder. No permit modification under this Part shall be required for

increases in emissions that are authorized by allowances acquired pursuant to 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 of allowances 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 [9]guration[-:J,. The [9]gepartment shall issue operating permits for a

fixed term offive (5) years.

C. Monitoring[.;]~

(1) Each permit shall contain all emissions monitoring requirements, and analysis

procedures or test 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 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 of 20.2.70.302 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 appropriate, installation ofmonitoring equipment or methods.

D. Recordkeeping[.;]~

(1) The permit shall require recordkeeping sufficient to assure and verify

compliance with the terms and conditions ofthe permit, including recordkeeping of:

(a) [+]1he date, place as defmed in the permit, and time ofsampling or

measurements;

(b) [+]1he date(s) analyses were performed;

(c) [+]!he company or entity that performed the analyses;

(d) [+]1he analytical techniques or methods used;

(e) [+]1he results ofsuch analyses; and

(1) [+]1he operating conditions existing at the time ofsampling or

measurement.

(2) Records of all monitoring data and support information shall be retained for a

period of at least five (5) years from the date ofthe monitoring sample, measurement, report, or

application. Supporting information includes all calibration and maintenance records and all

20.2.70 NMAC Proposed Revisions Page 13 of 18
original strip-chart recordings for continuous monitoring instrumentation, and copies of all

reports required by the permit.

E. Reporting[.;l. The permit shall require reporting sufficient to assure and verify

compliance with the terms and conditions ofthe permit and all applicable requirements,

including[.;] all ofthe following.

(l) Submittal ofreports of any required monitoring at least every six (6) months.

The reports shall be due to the [9]gepartment within forty-five (45) days ofthe end ofthe

permittee's reporting period. All instances of deviations from permit requirements, including

emergencies, must be clearly identified in such reports. All required reports must be certified by

a responsible official consistent with subsection E of 20.2.70.300 NMAC[t]~

(2) Prompt reporting of all deviations (including emergencies) from permit

requirements, including the date, time, duration and probable cause ofsuch deviations, the

quantity and pollutant type of excess 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 written

notification within ten (10) days[t]~

(3) Submittal of compliance 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 relevant to the source], including [those related to] emission limitations..

standards, or work practices. The reports shall be due to the [9]gepartment 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 [I)]gepartment and shall include:

(a) [+]!he identification of each term or condition ofthe permit that is the

basis ofthe certification;

(b) [+]!he compliance status ofthe source;

(c) [W]whether compliance was continuous or intermittent;

(d) [+J.!he 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 [Jd]gepartment may require to determine the

compliance status ofthe source[;--andl.

(4) Such additional provisions as may be specified by the Administrator to

determine the compliance status ofthe source.

F. Portable and Temporary Sources[.;]~ The [9]gepartment may issue permits for

portable and temporary sources which allow such sources to relocate without undergoing a

permit modification. Such permits shall not apply to acid rain sources and shall include

conditions to assure that:

(1) [+]!he 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) [+]!he owner or operator shall notify the [Jd]gepartment in writing at least

fifteen (IS) calendar days in advance of each change in location;

(4) [N]notification shall include a legal description ofwhere the source is to be

relocated and how long it will 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 or contribute

to an exceedance of a national ambient air quality standard or increment or visibility requirement

under Part C oftitle I ofthe Federal Act. The [9]gepartrnent may require dispersion modeling to

assure compliance at any location.

G. Compliance[~]~ To assure and verify compliance with the terms and conditions of

the permit and with this Part, permits shall alsor:] include all the following.

(1) Require that, upon presentation of credentials and other documents as may be

required by law, the permittee shall allow authorized representatives ofthe [9]gepartment to

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) [H]have access to and copy any records that must be kept under the

conditions ofthe permit;

(c) [I]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 or parameters 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 under paragraph (12) ofsubsection D of

20.2.70.300 NMAC to have a schedule of compliance submit progress reports to the

[9]gepartment at least semiannually, or more frequently ifspecified in the applicable

requirement or by the [9]gepartment. Such progress reports shall be consistent with the

schedule of compliance and requirements of paragraph (12) ofsubsection D of 20.2.70.300

NMAC and shall contain:

(a) [9]gates 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) [A]f!Il explanation of why any dates in the schedule of compliance were

not or will not be met, and any preventive or corrective measures adopted.

(3) Include such other provisions as the [9]gepartment may 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 a permit 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 of emissions or in terms oftotal emissions).

(b) For each 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 brief description 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 [9]gepartment shall attach each such notice to their

copy ofthe relevant permit.

(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

20.2.70 NMAC Proposed Revisions Page 15 of 18
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[7]~

(a) The [D]gepartment shall, if an applicant requests it, issue permits that

contain terms and conditions allowing for the trading of emissions increases and decreases in the

permitted facility solely for the purpose of complying 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 tenns and conditions required under 20.2.70.302 NMAC to determine

compliance. If applicable 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 application proposed replicable

procedures and permit terms that ensure the 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 which there are no replicable procedures to enforce

the emissions trades. The pennit shall require compliance with all applicable requirements.

(c) For each 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. 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 pennittee and [D]gepartment shall attach each such notice to their

copy ofthe relevant permit.

I. Off-Pennit Changes[7]~

(1) Permittees are allowed to make, without a permit modification, changes that

are not addressed or prohibited by the operating pennit, if:

(a) [E]~ach such change meets all applicable requirements and shall not

violate any existing permit tenn or condition;

(b) [S]~uch changes are not subject to any requirements under title IV ofthe

Federal Act and are not title I modifications;

(c) [S]~uch changes are not subject to permit modification procedures under

20.2.70.404 NMAC; and

(d) [+].the permittee provides contemporaneous written notice to the

[D]gepartment and US EPA of each 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 at the source that

result in emissions of a 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[7t

(1) Except as provided in this Part, the [D]gepartment 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 of permit

issuance, provided that:

20.2.70 NMAC Proposed Revisions Page 16 of18
(a) [8]~uch applicable requirements are included and are specifically

identified in the pennit; or

(b) [+]!he [D]gepartrnent, in acting on the permit application or significant

pennit 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 that

provISIOn.

(3) Nothing in this section or in any Part 70 (20.2.70 NMAC) permit shall alter or

affect the following:

(a) [+]!he provisions ofsection 303 ofthe Federal Act -- Emergency

Powers, including the authority ofthe Administrator under that section, or the provisions ofthe

New Mexico Air Quality Control Act, section 74-2-10 NMSA 1978;

(b) [+]!he liability of an owner or operator of a source for any violation of

applicable requirements prior to or at the time of permit issuance;

(c) [+]!he applicable requirements ofthe acid rain program, consistent with

section 408(a) ofthe Federal Act; or

(d) [+]!he ability of US EPA to obtain information from a source pursuant to

section 114 ofthe Federal Act, or the [D]gepartrnent 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 permit terms and conditions are

extended past the expiration date ofthe permit pursuant to subsection D of20.2.700400 NMAC.

(5) The permit shield shall extend to terms and conditions that allow emission

increases and decreases as part of emissions trading within a facility pursuant to paragraph (2) of

subsection H of20.2.70.302 NMAC, and to all terms and conditions under each operating

scenario included pursuant to paragraph (3) ofsubsection A of 20.2.70.302 NMAC.

(6) The pennit shield shall not extend to administrative amendments under

subsection A of 20.2.70.404 NMAC, to minor permit 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, or to permit terms or conditions for which notice has been given to reopen

or revoke all or part under 20.2.700405 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 of God, 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 of preventive 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 through properly signed, contemporaneous operating logs, or other relevant

evidence that:

20.2.70 NMAC Proposed Revisions Page 17 of 18
(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 of the emergency the permittee 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 under paragraph (2) of

subsection 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

of an emergency has the burden of proof.

D. This provision is in addition to any emergency or upset provision contained in any

applicable requirement[, except that Part 70 souroes shall not be subject to the provisions of

20.2.7 NMAC (Excess Emissions during Malfunction, Startup, Shutdovffl, or Scheduled

Maintenance) for permit terms and conditions issued under 20.2.70 N},.iACl

20.2.70 NMAC Proposed Revisions Page 18 of 18
Ms. Gay Dillingham, Chairperson

New Mexico Environmental Improvement Board

Harold Runnels Building, Room N-2153

1190 St. Francis Drive

Santa Fe, New Mexico 87502

RON CURRY

Secretary

DERRITH WA TCHMAN-MOORE

Deputy Secretary

.-;.

State ofNew Mexico

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 of the 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 of the 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 of 20.2.72 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 if they have not done so or have not previously shown modeled compliance with

national and New 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

of violations 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

of facilities subj ect to the operational plan requirement is too broad to define generally applicable

conditions, and as a result, 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 of the

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 of the

proposed rules at the time notices of intent to present technical evidence are due.

Thank you for your consideration ofthis request.

Sincerely,

:::~u h I/IUF

Air Quality Bureau
1v1s. 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

Soren Peters, Member, EIB

Harold Tso, Member, EIB

Zachary Shandler, Counsel, EIB

.'.I
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

-.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~~+-It"""""~ _9-+\~ _

Statement to come at end of month.

>.
NEW MEXICO

ENVIRONMENTAL

IMPROVEMENT BOARD

NOTICE OF PUBLIC MEETING

AND RULE MAKING HEARING

The New Mexico Environmental

Improvement Board ("Board') will

holda pUblic rule making heanng on August 1, 2006 at 9:00 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 (ConstructionI

Permfts).'

The proponent of the 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 Ambient Air Quality Standards' ('NMOS'); and to require

that sources permitted under

20.2.70 NMAC mleV permits)

obtaina20.2.72 NMAC or 20.2.74

NMAC permit it they have not

done so previously, NMEO's proposal clanlies that certifications of

compliance for new sources 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 TttleVsources to

report violations of the terms and

conditions in their permits and

claim affirmative defenses for such

violations ina 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 Other conditions

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 obtairieda 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. sources thai 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, subseC1ionCis added to

require that existing sources suIIjeet 10 the section must demonstrale anet air quality benefit of at

leasta 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 NMSAt 978; 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 Boarda written notice of Intent

to do so. The notice of intent shall:

(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, inclUdinga description of

their education and work back· ound;

3) summarize or include a y of. 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. A member 01 the general public

whO wishes to submita written

statement for the record, In lieu of

providing orai testimony at the

hearing, shall file 1he wlitten state·

ment prior to the hearing, or sub·

mtl at the hearing.

I Persons having

a disabllily and

needing help in beinga art of this 'I hearing process snoufd contact

Judy Bentley by July 18, 2006 at

the NMED Personnel Services

Bureau, P.D. Box 26110, 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 convenea meeting afterthe healing. to consider action
NMED'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 $

OR'

"" JUL 2006 u\

-"" ... 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 New Mexico Environment Departmen~

("NMED") hereby submits its Notice ofIntent to Present Technical Testimony in this matter.

1. Identity of entity for whom the witness will testify: NMED.

2. Identity of each technical witness and their qualifications: Richard Goodyear,

Manager, Permitting Section, NMED Air Quality Bureau. A summary of Mr.

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 of exhibits at hearing:

A. Mr. Goodyear's resume.

B. A summary of Mr. 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 of publication in New Mexico Register and Albuquerque

Journal.

E. Lists of entities invited and who participated in public meetings on the

proposed regulatory change.

NMED reserves the right to introduce rebuttal testimony and exhibits.

Respectfully submitted,

NEW MEXICO ENVIRONMENT DEPARTMENT

Tannis L. Fox

Deputy General Counsel

Office of General Counsel

P.O. Box 26110

Santa Fe, New Mexico 87504

(505) 827-1603

Attorney for NMED

Certificate of Service

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,

Santa Fe, New Mexico 87504-1508.

Tannis L. Fox

2
RICHARD GOODYEAR

TITLE:

Engineering Manager (Admin/ops)

Registered professional engineer in NM

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 construction permit applications for the state ofNew Mexico.

• 1994 - 1996: Organized and directed the air quality operating permit program for the state

ofNew Mexico.

• 1996 - present: Directs all air permitting programs for the state of New 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 of a subsystem of a military rocket, assistant professor of

engineering at the United States Military Academy, and public works director for a military

community of 46,000 acres and 1200 buildings, supporting 85,000 personnel.

TECHNICAL TRAINING

EPA 413 - Control of Particulate Emissions

EPA 415 - Control of Gaseous Emission

EPA 423 - Dispersion of Air Pollution - Model Applications

EPA 427 - Combustion Evaluation

EPA 461 - Intermediate Permitting

EPA 454 - Effective Permit Writing

NMED EXHIBIT

A
EPA 400 - Introduction to Air Toxics (SI)

Stress Management and Effective Communication Skills, 1997

Dealing with Conflict and Negativity in the Workplace, 1997

How to Deal with Employee Attitude Problems, 1998

Communication and Conflict Management, 1998

SFCC Management Development Program, 1998

NMED Legal Training/Documentation, 1999

Systematic Development of Informed 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 Management Development Program, 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 major proposals are:

1. The Department proposes 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 in the operating permit as part ofthe incorporated construction

permit.

2. The Department proposes to clarify the requirements for major sources to model

and certify compliance with the National Ambient Air Quality Standards ("NAAQS").

3. The Department proposes 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 permits rule (20.2.72 NMAC) and the ambient air quality standards

DIRECT TESTIMONY - PAGE 1

NMED EXHIBIT

B
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

"operating permit", all applicable requirements for "major sources". Under Title V, a source is

considered to be "major" ifit has the potential to emit more than one hundred (100) tons per year

of an air pollutant, such as nitrogen oxides ("NOx"), sulfur dioxide ("S02"), carbon monoxide

("CO"), or particulate matter ("PM"); or more than ten (10) tons per year of a hazardous air

pollutant ("HAP"); or twenty five (25) tons per year of all 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 (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 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 set to prevent pollutant 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 ("HzS"), and total reduced sulfur ("TRS"). The

NMAAQS complement the NAAQS, and in some cases, differ from and are more stringent than

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 Department prevents

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 of dangerous pollutants like H2S, 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 of air quality monitors. However, it is expensive to

maintain air quality monitors, and it is not possible to install enough monitors for all of the

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 of New 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 construction permit

regulation in 1972. These sources were not required to obtain a construction permit until they

made a modification (20.2.72.200.A.2 NMAC). The regulation defines "modification" as a

physical change or change in the method of operation of a source that results in an increase in the

potential emission rate of a regulated pollutant or the emission of a regulated 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 a modification, the

regulation allows these sources to do so without complying with the NAAQS or NMAAQS as

long as they offset their 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 of these sources now

comply with the NAAQS and NMAAQS, but a small number ofthem continue to exceed the

NMAAQS as authorized under the offset provision. On the other hand, there are a small number

of existing sources that have never made a modification. These grandfathered sources were

never reviewed under the construction permit regulation, 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 of construction, 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 never reviewed

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 under the 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 important to 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 of operation, 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 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 met with numerous stakeholders, including industry and public representatives, on

the issues of ambient air quality standards and Title V sources. The Department has also

maintained a web site and posted regulatory revisions as available. The Department held the

final public meeting on this issue in Santa Fe 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 Department revised its proposal for Part 70

based on the comments received at this meeting, as I will describe later. In 2002, some of these

sources, in the form of an informal association called the "Industry Working Group", sought to

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 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 repealed the NMAAQS that were obsolete.

Subsequently, some Title V sources argued that the remaining NMAAQS, and specifically the

24-hour NOx 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-half of

the reported studies supported the 24-hour NOx NMAAQS? Nonetheless, because these sources

continued to argue that the NMAAQS were not valid, the Department requested funding from

the legislature for a more 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 of eleven Title V permits, disputing the

applicability of ambient air quality standards. Seven ofthese EPNG sources were grandfathered.

In July 2004, the Department again requested the EIB to schedule a hearing on this issue.

Some ofthe parties that submitted Notices of Intent 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 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 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 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 our proposal, most ofthem are not substantive and serve only to comply with the

requirements ofthe Commission of Public Records rule at 1.24.10 NMAC. The following

discussion addresses the substantive changes.

A. 20.2.70.5 NMAC

The Department proposes to add the phrase "except where a later date is cited at the end

of a 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 Department proposes to add a reference to "Part 70 source" in the introductory paragraph 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

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 7
principle of construction that a regulation should be harmonized with other parts ofthe

regulation and given an interpretation consistent with the regulatory intent. The term "emissions

unit" is defined as "any part or activity of a stationary source that emits or has 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 of a 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 Department proposes 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 Department proposes 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 or may emit any regulated air pollutant or any pollutant listed under section 112(b) ofthe

Federal Act." The current definition sometimes results in confusion as to the scope of what

should be included in an application for a permit. This catch-all phrase clarifies that large

entities, such as national laboratories and military bases, are "stationary sources" subject to 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 of emissions from some of the 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 bean issue, the Department

DIRECT TESTIMONY - PAGE 8
believes that the 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

which it will apply. The NMAAQS would be applied to major sources under 20.2.72 NMACConstruction 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 20 I.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 of paragraph 201.D to 20.2.70 NMAC will allowNMED to ensure that

landfills and grandfathered Title V sources (those sources that have never received a permit

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 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 that the landfills and the four

grandfathered Title V sources act expeditiously. The provision for the Department to 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 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 with Title 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. For the 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 20.2.70.20 l.D of our proposal. Hence, the Department proposes the additional

language in section 201.D at sub-paragraphs (2) and (3).

In new section 20 l.D(l), the first sentence was in our previous 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 of Title V. Hence,

paragraph (2) applies the requirement to obtain a construction permit to them at that future time.

For either category we want to 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 and may also exclude any ofthe 8 other sources on the Department's

list that can meet the exclusion requirement. For example, 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 permit process. 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 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, but the 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 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 a way that is consistent with past practice for minor sources. The changes

in paragraphs A(1) and A(2) are clarifications of existing 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 "or New 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 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 of any permit revision under section 219 of20.2.72 NMAC. New

paragraph C establishes a way to achieve progress toward compliance and formalizes the concept

of 20% 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 a regulatory requirement. The fonnula for detennining the projected source impact based on

a reduction of 20% 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 of its approval. All such applications were submitted;

consequently, this language is no longer needed or relevant and should be removed.

F. Content of permit application, 20.2.70.300.D(5)(g) NMAC

One ofthe items that the current regulation 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 not require 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 of violations as required at all other times. 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 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 a plan 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 a plan for complex equipment such as sulfur

DIRECT TESTIMONY - PAGE 12
recovery units or power plants is more appropriate and meaningful.

G. Content of permit 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 subject to the Title V rule at the time of its approval.

Consequently, it is no longer needed or relevant and should be removed.

With the new D(l O)(a) the Department proposes to establish the criteria on which Title V

sources should base any certification of compliance 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 of any 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 of compliance 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 Department proposes that

certification be based on compliance with the terms and conditions ofthe current operating

permit. Again, this approach is logical since terms and conditions of construction 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 of construction 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 of 20.2.270 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 not really change the requirement; they conform the

language ofthe changed sentence to the federal language at 40 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 of compliance that generically refer to all applicable

requirements relevant to the source. Although the source must provide a list of applicable

requirements in its application, it is the Department's responsibility to identify all applicable

requirements in the operating permit; if we make a mistake, 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 if a 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 Department proposes to revise this section to conform our rule 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 subject to 20.2.7 NMAC - Excess emissions during malfunction,

startup, shutdown, or scheduled maintenance and other conditions that are not, creating

considerable confusion among both industry and the agency. Regulation 20.2.7 NMAC applies

to the violation of any part ofthe SIP and to violation of a permit issued under the construction

permits rule, but 20.2.7 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 upset provisions. The operating permit

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 of 20.2.70 NMAC, resulting in confusion

over how violation of any particular permit condition should be handled by the permittee. There

is no real benefit to 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 manner consistent with sources pennitted under 20.2.72 NMAC.

III. CONCLUSION

After 12 years of experience with the 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 of our rules that would cause demonstration of compliance 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 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 of a

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 subject to 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

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 of any air pollutant,

to the extent the Administrator has identified such precursor or precursors for the particular

purpose for which the term "air pollutant" 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 of which would limit, capture, reduce, confine, or otherwise

control regulated air pollutants or convert for the purposes of control any regulated air pollutant

to another form, another chemical or another physical state. This includes, but is not limited to,

sulfur recovery 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 or to an emissions unit[s] at a Part 70 source (including requirements that have been

promulgated or approved by the Board or US EPA through rulemaking at the time of permit

issuance but have future-effective compliance dates)[-:-l.

(1) Any standard or other requirement provided for in the New Mexico state

implementation plan 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 of any preconstruction permit issued pursuant to

regulations approved or promulgated through rulemaking under title I, including parts C or D, of

the Federal Act, unless that term or condition is determined by the Department to 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 or the 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 other requirement 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 other requirement 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 not be 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 pursuant to section 504(e) ofthe

Federal Act[-;--andL

(13) Any regulation 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 of Federal Regulations.

G. "Draft permit" means a version of a permit which the Department offers for

public participation or affected program review.

H. "Emission limitation" means a requirement established by US EPA, the Board,

or the [9]gepartment, that limits the quantity, rate or concentration, or combination thereof, of

emissions of regulated air pollutants on a continuous basis, including any requirements relating

to the operation or maintenance of a 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 or renewal 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 of a stationary source that emits or

has the potential to emit any regulated air pollutant or any air pollutant listed pursuant to 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 pursuant to 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 approved pursuant to 40

CFR Part 51, Subpart I, including 40 CFR 51.165 and 40 CFR 51.166.

L. "Final permit" means the version of an operating permit issued by the

[9]gepartment that has met all review requirements of 20.2.70.400 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 contaminant that 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

or production rate.

Q. "Major source" means any stationary source (or any group ofstationary sources

that are located on one or more contiguous or adjacent properties, 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) For pollutants other than 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 of any 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 maj or source offugitive

emissions of any such pollutant, as determined by rule by the Administrator), or such lesser

quantity as the Administrator may establish by 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 Administrator by rule.

(2) A major stationary source of air pollutants that directly emits or has the

potential to emit, 100 or more tons per year of any air pollutant (including any major source of

fugitive emissions of any such pollutant, as determined by rule by the Administrator). The

fugitive emissions of a 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 cement plants[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 of charging 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 of 18
(I) Phosphate rock processing plants[~]

(m) Coke oven batteries[~]

(n) Sulfur recovery plants[~]

(0) Carbon black plants (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 combination thereof) totaling more than 250

million British thermal units per hour heat input[t]

(v) Petroleum storage and transfer units with a total 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 of August 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 of volatile 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 that the references in this paragraph to 100,50,25, and 10 tons per year of

nitrogen oxides shall not apply with respect to any source for which the Administrator has 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 pursuant to section 184 ofthe

Federal Act, sources with the potential to emit 50 tons or more per year of volatile 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 under rules issued by the Administrator, sources with the potential to emit 50 tons

or more per year of carbon monoxide; and

(d) [¥]for particulate 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 of permits covering a source that is issued, renewed, modified or

revised pursuant to this Part.

S. "Operator" means the person or persons responsible for the overall operation of

a facility.

T. "Owner" means the person or persons who own a facility or part of a 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 subject to 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 permit that meets the

requirements ofsignificant permit modifications, minor permit modifications, or administrative

permit amendments, as defined in 20.2.70.404 NMAC.

X. "Permittee" means the owner, operator or responsible official at a permitted Part

70 source, as identified in any permit application or modification.

Y. "Portable [Shource" means any plant that is mounted on any chassis or skids

and which can be moved by the application of a lifting or pulling force. In addition, there shall

be no cable, chain, turnbuckle, bolt or other means (except electrical connections) by which any

piece of equipment is attached or clamped to any anchor, slab, or structure, including bedrock,

that must be removed prior to the application of a lifting or pulling 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 of a stationary source to emit

any air pollutant under its physical and operational design. Any physical or operational

limitation on the capacity of a source to emit an air pollutant, including air pollution control

equipment and restrictions on hours of operation or on the type or amount of material combusted,

stored, or processed, shall be treated as part ofits design ifthe limitation is federally enforceable.

The potential to emit for nitrogen dioxide shall be based on total oxides of nitrogen.

AA. "Proposed permit" means the version of a permit 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 pollutant that is subject to 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 subject to 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 subject to requirements under section 1120) ofthe Federal

Act. If the Administrator fails to promUlgate a standard by the date established pursuant 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) any pollutant 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 a permit is reissued at the end of its term.

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, or vice-president ofthe

corporation in charge of a principal 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 of one or more

manufacturing, production, or operating facilities applying for or subject to 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 of authority to such

representative is approved in advance by the [&]gepartment.

(2) For a partnership or sole proprietorship: a general partner or the proprietor,

respectively.

(3) For a municipality, state, federal or other public agency: either a principal

executive officer or ranking elected official. For the purposes ofthis Part, a principal executive

officer of a federal agency includes the chief executive officer having responsibility for the

overall operations of a principal 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, or prohibitions under

title IV ofthe Federal Act or the regulations promulgated thereunder are concerned, and for any

other purposes under 40 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 permit terms and conditions that are monitoring (including test methods),

recordkeeping, reporting, or compliance certification requirements.

AF. "Shutdown" means the cessation of operation of any air pollution control

equipment, process equipment or process for any purpose.

AG. "Solid waste incineration unit" means a distinct operating unit of any 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 of recovering metals;

(3) [Q]gualifying small power production 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 of electric energy or in the case ofqualifying cogeneration facilities

which bum homogeneous waste for the production of electric 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 bum wood

wastes, yard wastes and clean lumber and that such air curtain incinerators comply with opacity

limitations established by the Administrator by rule.

20.2.70 NMAC Proposed Revisions Page 6 of 18
AH. "Startup" means the setting into operation of any 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

pollutant listed under section 112(b) ofthe Federal Act.

AJ. "Subsidiary" means a business 'concern which is owned or controlled by, or is a

partner of, the applicant or permittee.

AK. "Temporary [S]~ource" means any plant that is situated in one location for a

period of less 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 of a portable 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 of operations that is subject to the

preconstruction regulations promulgated under Parts C and D ofthe Federal Act.

20.2.70.201 REQUIREMENT FOR A PERMIT:

A. A Part 70 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

or EPA; or

(2) a timely 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 or termination of a pelTIlit by the Department terminates the

permittee's right to operate.

C. The submittal of a complete operating permit application shall not 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 permit under 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 a permit 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 of good

cause.

(2) Part 70 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 permit under

20.2.72 NMAC within 60 days after submittal of an application for an operating permit.

(3) Paragraphs 1 and 2 of this subsection shall not apply to sources that have

demonstrated compliance with both the national and state ambient air quality standards through

dispersion modeling approved by the department and that have requested incorporation of

conditions in their operating permit to 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 of permit renewal, one that is submitted at least twelve (12)

months prior to the date of permit expiration[;L

(3) [F]for the acid rain portion of permit 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, except natural gas processing plants, yNhich hm'e been

issued a permit, including a permit 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 half oftheir 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 a permit 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 of whether it has been

determined or deemed to be complete, the [D]gepartment determines that additional information

is necessary to evaluate or take 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 or who has submitted

incorrect information in a permit 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 of a draft permit.

(4) The applicant's ability to operate without a permit, 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 a permit under this Part shall do

so by filing a written application with the [D]Qepartment. The applicant shall submit three (3)

copies ofthe permit application, or more, 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 18
Emission Fees). Fugitive emissions shall be included in the permit application in the same

manner as stack emissions, regardless of whether the source category in question is included in

the list of sources contained in the definition of major 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 of permit applications and compliance plans shall be on nationally-standardized forms

to the extent required by regulations promulgated under title IV ofthe Federal Act[~L

(2) State the company's name and address (and, if different, 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 of

incorporation or principal registration to do business and corporate or partnership relationship to

other permittees subject to 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 Surveyor the most detailed map available showing the exact location

ofthe source. The location shall be identified by latitude and longitude or by UTM

coordinates[~l.

(5) For all emissions of all air pollutants 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 of all 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 of the 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 with the 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 or regulate emissions;

(e) [I]identification and full description, including all calculations and the

basis for all control efficiencies presented, of air pollution control equipment and compliance

monitoring devices or activities; .

(f) [+]!he maximum and standard operating schedules ofthe source, as well

as any work practice 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

stack height 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)]gepartment to define such alternative

operating scenarios[~l.

(6) Provide a list of insignificant activities (as defined in 20.2.70.7 NMAC) at the

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 of all applicable air pollution control

requirements, including:

(a) [g]~ufficient information related to the emissions ofregulated air

pollutants to verify the requirements that are applicable to the source; and

(b) [A]~ description of or reference to any applicable test method for

determining compliance with each applicable requirement[tl.

(8) Provide an explanation of any proposed exemptions from otherwise applicable

requirements[tl.

(9) Provide other specific information that may be necessary to implement and

enforce other requirements ofthe state or Federal Acts or to determine the applicability ofsuch

requirements, including information necessary to collect any permit fees owed under 20.2.71

NMAC (Operating Permit Emission Fees)[~l.

[(10) For applications which are required under the 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 of any national ambient air quality standard.

Air pollutants 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 a permit under 20.2.72 NMAC, 20.2.74

}J},4AC, 20.2.79 NMAC after January 1,1986; or

(ii) A Part 70 source subject to 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 of compliance, 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 on the following.

(i) For first time applications, this certification shall be based on modeling

submitted with the application for a permit under 20.2.72 NMAC.

(ii) For permit renewal applications, this certification shall be based on

compliance with the relevant terms and conditions ofthe current operating permit.

(b) A statement of methods used for determining compliance, including a

description of monitoring, recordkeeping, and reporting requirements and test methods[t]~

20.2.70 NMAC Proposed Revisions Page 10 of 18
(c) A statement that 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 that become effective during the permit termht

(d) A schedule for submission of compliance certifications during the permit

term, to be submitted no less frequently than annually, or more frequently ifspecified by the

underlying applicable requirement or by 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 not in compliance with all applicable requirements

at the time of permit 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 of how 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

of compliance 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 of any consent decree or

administrative order shall not be in any way diminished by the schedule of compliance. Any

such schedule of compliance shall be supplemental to, and shall not prohibit 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 of certified progress reports no less

frequently than every six (6) months[~t

(e) For the portion of each acid rain source subject to the acid rain

provisions oftitle IV ofthe Federal Act, the compliance plan content requirements 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[.;.t Any document, including any application form, report, or

compliance certification, submitted pursuant to this Part shall contain certification by a

responsible official oftruth, accuracy, and completeness. This certification and any other

certification required under this Part shall state that, based on information and belief formed 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 a permit, including emission

limitations and sufficient operational requirements and limitations, to assure compliance with all

applicable requirements at the time of permit 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 in the major source.

20.2.70 NMAC Proposed Revisions Page 11 of 18
(b) [F]for any non-major source subject to 20.2.70.200 NMAC20.2.70.299 NMAC, include all applicable requirements which apply to emissions units that

cause the source to be subject to this Part.

(c) [g]~pecify and reference the origin of and 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 of the

various permit requirements in the event of a challenge to any portions of the permit;

(e) [I]include a provision 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]for purposes 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 a violation ofthe Federal Act[t].:.

(b) It shall not be a defense for a permittee 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 of a request by the permittee for a permit modification,

revocation and reissuance, or termination, or of a notification of planned changes or anticipated

noncompliance shall not stay any permit condition[tL

(e) The permit does not convey any property rights of any sort, or any

exclusive privilege[tL

(1) Within the period specified by the [P]gepartment, the permittee shall

furnish any information that the [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 permit to 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 of this 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, 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 in the permit that are not required under the Federal Act or under

any of its applicable requirements.

(6) The issuance of a permit, or the filing or approval of a compliance plan, 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 or regulation.

(7) The [f)]Qepartment may include part or all of the contents ofthe application as

terms and conditions ofthe permit or permit modification. 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 in the operating permit in

the same manner as stack emissions, regardless of whether the source category in question is

included in the list ofsources contained in the definition of major source.

(9) The acid rain portion of operating 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 a permit condition prohibiting emissions exceeding any

allowances that the acid rain source lawfully holds under title IV ofthe Federal Act or the

regulations promulgated thereunder. No permit modification under this Part shall be required for

increases in emissions that are authorized by allowances acquired pursuant to 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 of allowances 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 or test 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 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

consistent with the applicable requirement.

(3) The pennit shall also contain specific requirements concerning the use,

maintenance, and, when appropriate, installation of monitoring 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 with the 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 that performed the analyses;

(d) [+]lhe analytical techniques or methods used;

(e) [+]lhe results of such analyses; and

(f) [+]lhe operating conditions existing at the time ofsampling or

measurement.

(2) Records of all monitoring data and support information shall be retained for a

period of at 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 of all

reports required by the permit.

E. Reporting[.;-l. The permit shall require reporting sufficient to assure and verify

compliance with the terms and conditions ofthe permit and all applicable requirements,

including[.;.] all ofthe following.

(1) Submittal ofreports of any 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 of deviations from permit requirements, including

emergencies, must be clearly identified in such reports. All required reports must be certified by

a responsible official consistent with subsection E of20.2.70.300 NMAC[;-l.

(2) Prompt reporting of all deviations (including emergencies) from permit

requirements, including the date, time, duration and probable cause ofsuch deviations, the

quantity and pollutant type of excess 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 of the start ofthe next business day and written

notification within ten (1 0) days[~l.

(3) Submittal of compliance 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 relevant to the source], including [those related to] emission limitations~

standards, or work practices. The reports shall be due to the [&]gepartment 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 [D]gepartment and shall include:

(a) [+J1he identification of each term or condition 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 Administrator to

determine the compliance status ofthe source.

20.2.70 NMAC Proposed Revisions Page 14 of 18
F. Portable and Temporary Sources[-:-l The [g]4epartment may issue permits for

portable and temporary sources which allow such sources to relocate without undergoing a

pennit modification. 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 of each change in location;

(4) [N]gotification shall include a legal description of where 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 of a national ambient air quality standard or increment or visibility 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 of credentials and other documents as may be

required by law, the permittee shall allow authorized representatives ofthe [g]4epartment to

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 or monitor any substances or parameters 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 under paragraph (12) ofsubsection D of

20.2.70.300 NMAC to have a schedule of compliance submit progress reports to the

[g]4epartment at least semiannually, or more frequently ifspecified in the applicable

requirement or by the [g]4epartment. Such progress reports shall be consistent with the

schedule of compliance and requirements of paragraph (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 of compliance, and dates when such activities, milestones or compliance were

achieved; and

(b) [A]~n explanation of why any dates in the schedule of compliance were

not or will not be met, and any preventive or corrective measures adopted.

(3) Include such other provisions 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 a permit 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 of emissions 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 a brief description 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 of the change.

(c) The permittee and [f)]gepartment shall attach each such notice to their

copy of the relevant permit.

(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

permit remain fully enforceable.

(2) Emissions trading within a facility[.;-].:.

(a) The [f)]gepartment shall, if an applicant requests it, issue permits that

contain terms and conditions allowing for the trading of emissions increases and decreases in the

permitted facility solely for the purpose of complying 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. If applicable 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 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 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 [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 relevant permit.

I. Off-Permit Changes[.;-L

(1) Permittees are allowed to make, without a permit modification, changes that

are not addressed or prohibited by the operating permit, if:

(a) [:g]~ach such change meets all applicable requirements and shall not

violate any existing permit term or condition;

(b) [S]~uch changes are not subject to any requirements under title IV ofthe

Federal Act and are not title I modifications;

(c) [S]~uch changes are not subject to permit modification 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 of each 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 of the

change.

(2) The permittee shall keep a record describing changes made at the source that

result in emissions of a 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 a provision stating that compliance with the conditions of the

permit shall be deemed compliance with any applicable requirements as ofthe date of permit

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 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 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, or the provisions ofthe

New Mexico Air Quality Control Act, section 74-2-10 NMSA 1978;

(b) [+]!he liability of an owner or operator of a source for any violation of

applicable requirements prior to or at the time of permit issuance;

(c) [+]!he applicable requirements ofthe acid rain program, consistent with

section 408(a) ofthe Federal Act; or

(d) [+]!he ability of US EPA to obtain information from a source pursuant to

section 114 ofthe Federal Act, or the [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 permit terms and conditions are

extended past the expiration date ofthe permit pursuant to subsection D of 20.2.70.400 NMAC.

(5) The permit shield shall extend to terms and conditions that allow emission

increases and decreases as part of emissions trading within a facility pursuant to paragraph (2) of

subsection H of20.2.70.302 NMAC, and to all terms and conditions under each operating

scenario included pursuant to paragraph (3) ofsubsection 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 minor permit modifications under subsection B of

20.2.70.404 NMAC, to section 502(b)(10) changes under paragraph (1) of subsection H of

20.2.70.302 NMAC, or to permit terms or conditions for which notice has been given to reopen

or revoke all or part under 20.2.70.405 NMAC.

20.2.70 NMAC Proposed Revisions Page 17 of 18
20.2.70.304 EMERGENCY PROVISION[t]~

A. An "emergency" means any situation arising from sudden and reasonably

unforeseeable events beyond the control of the permittee, including acts of God, 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 of preventive 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 through properly signed, contemporaneous operating logs, or other relevant

evidence that:

(1) An emergency occurred and that the permittee can identify the cause(s) of the

emergency;

(2) The permitted facility was at the time being properly operated;

(3) During the period of the emergency the permittee 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 under paragraph (2) of

subsection E of 20.2.70.302 NMAC. This notice must contain a description of the emergency,

any steps taken to mitigate emissions, and corrective actions taken.

C. In any enforcement proceeding, the permittee seeking to establish the occurrence

of an emergency has the burden of proof.

D. This provision is in addition to any emergency or upset provision 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 18
The Department proposes 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 that part. This

section does not limit the applicability ofthis part to sources required to obtain a permit under

20.2.72 NMAC, nor does it limit which terms and conditions of permits issued pursuant to

20.2.72 NMAC are applicable requirements for permits issued pursuant to 20.2.70 NMAC.

[2().2.3.9] 20.2.3.10 to 20.2.3.107 [RESERVED]

NMED EXHIBIT

C-2
The Department proposes that the Board adopt the 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 of an existing source that [wffi.eh] will emit a

regulated 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 New Mexico Ambient Air Quality Standard for the contaminant; [ef]

(2) A new source or modification of an 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 such that 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 a regulated 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 or New Mexico ambient air quality standard for the contaminant.

B. A new source or modification of an 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 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 of at least a 20 percent reduction in ambient impact for each applicable contaminant. The

20 percent reduction shall be calculated as the proj ected source impact subtracted from the

existing source impact divided by the existing source impact. The net air quality benefit must

also meet the requirements of20.2.79.117 NMAC (Air Quality Benefit).

NMED EXHIBIT

C-3
NMED'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 ENVIRONMENT DEPARTMENT

Tannis L. Fox

Deputy General Counsel

Office of General Counsel

P.O. Box 26110

Santa Fe, New Mexico 87504

(505) 827-1603

Attorney for NMED

Certificate of Service

I certify that a copy ofthe foregoing pleading was served by mail on July 20,2006 on

Zachary Shandler, Assistant Attorney General, Office ofthe Attorney General, P.O. Box 1508,

Santa Fe, New Mexico 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 in NM

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 construction permit applications for the state of New Mexico.

• 1994 - 1996: Organized and directed the air quality operating permit program for the state

ofNew Mexico.

• 1996 - present: Directs all air permitting 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 of a subsystem of a military rocket, assistant professor of

engineering at the United States Military Academy, and public works director for a military

community of 46,000 acres and 1200 buildings, supporting 85,000 personnel.

TECHNICAL TRAINING

EPA 413 - Control ofParticulate Emissions

EPA 415 - Control of Gaseous Emission

EPA 423 - Dispersion of Air 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 and Negativity in the Workplace, 1997

How to Deal with Employee Attitude Problems, 1998

Communication and Conflict Management, 1998

SFCC Management Development Program, 1998

NMED Legal Training/Documentation, 1999

Systematic Development ofInformed 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 Management Development Program, 2006

Public Sector Employment Law for Managers and Supervisors, 2006
STATE OF NEW MEXlCO

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 Improvement Board ("EIB") to request changes to several Air Quality Control

Regulations. The Department's major proposals are:

1. The Department proposes 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 in the operating pennit as part ofthe incorporated construction

permit.

2. The Department proposes to clarify the requirements for major sources to model

and certify compliance with the National Ambient Air Quality Standards ("NAAQS").

3. The Department proposes 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

#2
standards 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 "operating permit", all applicable requirements for "major sources". Under Title V, a

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

tons per year of an air pollutant, such as nitrogen oxides ("NOx"), sulfur dioxide ("S02"), carbon

monoxide ("CO"), or particulate matter ("PM"); or more than ten (10) tons per year of a

hazardous air pollutant ("HAP"); or twenty five (25) tons per year of all 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 set to prevent pollutant levels in ambient air that could affect the 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 ("H2S"), and total reduced sulfur ("TRS"). The

NMAAQS complement the 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 and NMAAQS. By ensuring compliance with these standards, the Department prevents

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 of dangerous pollutants like H2S, 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 of air quality monitors. However, it is expensive to

maintain air quality monitors, and it is not possible to .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.l

NMAC). However, some sources were existing when the EIB adopted the construction permit

regulation in 1972. These sources were not required to obtain a construction permit until they

made a modification (20.2.72.200.A.2 NMAC). The regulation defines "modification" as a

physical change or change in the method of operation of a source that results in an increase in the

potential emission rate of a regulated pollutant or the emission of a regulated 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 a modification, the

regulation allows these sources to do so without complying with the NAAQS or NMAAQS as

long as they offset their 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 offset provision. On the other hand, there are a small number

of existing sources that have never made a modification. These grandfathered sources were

never reviewed under the co~structionpermit regulation, and some ofthem continue to exceed

the NMAAQS and have never complied with the offset provision. Of this last category of

sources, some are "major" under Title V.

For all major sources, regardless oftheir date of construction, 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 never reviewed

under the construction permit regulation, because they existed before the construction permit

regulation and were never modified, were able to avoid the obligation to demonstrate compliance

with the 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 for the NAAQS and NMAAQS, and all major sources have

complied with the requirement for the NAAQS.

DIRECT TESTIMONY - PAGE 4
maj or sources in their current configuration have not conducted air dispersion modeling for

NMAAQS.2

The Department believes that it is important to hold these sources accountable for their

pollution by first determining 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 of operation, 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 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 met with numerous stakeholders, including industry and public representatives, on

the issues of ambient air quality standards and Title V sources. The Department has also

maintained a web site and posted regulatory revisions as available. The Department held the

final public meeting on this issue in Santa Fe 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 Department revised 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 of an infonnal association called the "Industry Working Group", sought to

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: 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 Department filed its own petition. 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 repealed the NMAAQS that were obsolete.

Subsequently, some Title V sources argued that the remaining NMAAQS, and specifically the

24-hour NOx 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-half of

the reported studies supported the 24-hour NOx NMAAQS.3 Nonetheless, because these sources

continued to argue that the NMAAQS were not valid, the Department requested funding from

the legislature 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 of eleven Title V permits, disputing the

applicability of ambient air quality standards. Seven ofthese EPNG sources were grandfathered.

In July 2004, the Department again requested the EIB to schedule a hearing on this issue.

Some ofthe parties that submitted Notices 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 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 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 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 our proposal, most ofthem are not substantive and serve only to comply with the

requirements ofthe Commission of Public Records rule at 1.24.10 NMAC. The following

discussion addresses the substantive changes.

A. 20.2.70.5 NMAC

The Department proposes to add the phrase "except where a later date is cited at the end

of a 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 Department proposes to add a reference to "Part 70 source" in the introductory paragraph 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

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 7
principle of construction that a regulation should be harmonized with other parts of the

regulation and given an interpretation consistent with the regulatory intent. The term "emissions

unit" is defined as "any part or activity of a stationary source that emits or has 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 of a 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 Department proposes 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 Department proposes 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 thereof that

emits or may emit any regulated air pollutant or any pollutant listed under section 112(b) ofthe

Federal Act." The current definition sometimes results in confusion as to the scope of what

should be included in an application for a permit. This catch-all phrase clarifies that large

entities, such as national laboratories and military bases, are "stationary sources" subject to 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 of emissions 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 Department

DIRECT TESTIMONY - PAGE 8
believes that the 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

which it will apply. The NMAAQS would be applied to major sources under 20.2.72 NMACConstruction Permits and would be implemented in the operating permit as part of the

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 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 of paragraph 20I.D to 20.2.70 NMAC will allow NMED to ensure that

landfills and grandfathered Title V sources (those sources that have never received a permit

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 demonstration to show whether emissions comply with New Mexico

and National Ambient Air Quality Standards. Violation ofthese standards is addressed in

section 216 of 20.2.72 NMAC. The deadline of 180 days ensures that the landfills and the four

grandfathered Title V sources act expeditiously. The provision for the Department to 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 a revised

DIRECT TESTIMONY - PAGE 9
paragraph 201.D to the EIB, we have a better appreciation for the impact of this 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. For the 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 20.2.70.201.D of our proposal. Hence, the Department proposes the additional

language in section 201.D at sub-paragraphs (2) and (3).

In new section 20 l.D(l), the first sentence was in our previous 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 of Title V. Hence,

paragraph (2) applies the requirement to obtain a construction permit to them at that future time.

For either category we want to 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 and may also exclude any ofthe 8 other sources on the Department's

list that can meet the exclusion requirement. For example, Versado told the Department that it

was in the process of modeling for the company's sources on the list. If it shows compliance

with all standards and request appropriate conditions in its Title V permits, there is no need to go

through the construction permit process. 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 Point Landfill, Clovis Regional Landfill, Northeast New Mexico Regional LandfifI, 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

of the New Mexico SIP. Section 9 removes the NMAAQS from the applicability requirements

fOf all Title V sources, but the 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 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 a way that is consistent with past practice for minor sources. The changes

in paragraphs A(l) and A(2) are clarifications of existing 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 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 "or New 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 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 of any permit revision under section 219 of20.2.72 NMAC. New

paragraph C establishes a way to achieve progress toward compliance and formalizes the concept

of 20% 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 a regulatory requirement. The formula for determining the projected source impact based on

a reduction 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 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 of permit application, 20.2.70.300.D(5)(g) NMAC

One ofthe items that the current regulation requires as part ofthe Title V permit

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 not require the submittal of

operational plans in applications. Title V sources should comply with the terms and conditions

oftheir permits at all times, including during startup and shutdown, and should provide the same

notification of violations as required at all other times. The Department has found that the range

of facilities 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 a plan 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 a plan for complex equipment such as sulfur

DIRECT TESTIMONY - PAGE 12
recovery units or power plants is more appropriate and meaningful.

G. .Content of permit 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 subject to the Title V rule at the time of its approval.

Consequently, it is no longer needed or relevant and should be removed.

With the new D(lO)(a) the Department proposes to establish the criteria on which Title V

sources should base any certification of compliance 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 of any 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 of compliance 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 Department proposes that

certification be based on compliance with the terms and conditions ofthe current operating

permit. Again, this approach is logical since terms and conditions of construction 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 of construction permits are created to ensure

compliance with these standards.

DIRECT TESTIMONY - PAGE 13
H. Permit content, 20.2.70.302E(3) Nl\1AC

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

pennit. The changes in words here do not really change the requirement; they confonn the

language ofthe changed sentence to the federal language at 40 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 of compliance that generically refer to all applicable

requirements relevant to the source. Although the source must provide a list of applicable

requirements in its application, it is the Department's responsibility to identify all applicable

requirements in the operating pennit; if we 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 if a source failed to comply with an applicable

requirement even if it was not listed in the pennit.

I. Emergency provision, 20.2.70.304.D NMAC

The Department proposes to revise this section to confonn our rule 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, or scheduled maintenance and other conditions that are not, creating

considerable confusion among both industry and the agency. Regulation 20.2.7 NMAC applies

to the violation of any part ofthe SIP and to violation of a pennit issued under the construction

pennits rule, but 20.2.7 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

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 of any particular permit condition sbould be handled by the permittee. There

is no real benefit to 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 manner 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 of proposed 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 conduct modeling 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 equipment to make progress toward achievement ofthe

standards in accordance with 20.2.72 NMAC. NMED does not know whether any ofthese

sources would be out of compliance with state standards and, ifso, what type of pollution control

equipment would need to be installed. Therefore, NMED cannot estimate costs for such

equipment. It is important to note that other Title V sources have already been required to model

for state standards and install pollution control equipment to satisfy the requirements of20.2.72

DIRECT TESTIMONY - PAGE 15
NMAC, if necessary. Therefore, requiring these eight sources to do the same "levels the playing

field" and requires the eight sources to bear business costs that other sources already have borne.

The impact to the public would be healthier, cleaner air, if any 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 which the sources are located, which

is mostly in the southeast part ofthe state. This part ofthe state is rural and has a relatively

lower income level, raising environmental justice concerns. Therefore, any improved air quality

. could have a positive impact with respect to environmental justice 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. If EL 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. If an 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 confident that it can absorb this work. It is possible that if a permit

is required, a hearing would be held, requiring more NMED resources and possibly EIB

resources, although the likelihood of a hearing is not great because the sources would be required

to reduce emissions if a permit is required.

The Small Business Regulatory Relief Act requires agencies to submit proposed rules to

the Small Business Regulatory Relief Commission ("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 that the 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 because NMED found that its emissions were so low that it did

not need to conduct modeling.

IV. CONCLUSION

After 12 years of experience with the 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 of our rules that would cause demonstration of compliance 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 17
The Department proposes that the Board adopt the 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 of a

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 air pollution control programs,

and Indian [:f']!ribes and rP]12ueblos, that are within 50 miles ofthe source.

C. "Air pollutant" means ail air pollution 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 teIDl includes any precursors to the formation of any air pollutant,

to ·the extent the Administrator has identified such precursor or precursors for the particular

purpose for which the teIDl "air pollutant" 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 of which would limit, capture, reduce, confine, or otherwise

control regulated air pollutants or convert for the purposes of control any regulated air pollutant

to another form, another chemical or another physical state. This includes, but is not limited to,

sulfur recovery units, acid plants, 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 or US EPA through rulemaking at the time of peIDlit

issuance but have future-effective compliance dates)[-:-L

(1) Any standard or other requirement provided for in the New Mexico state

implementation plan 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 of any preconstruction permit issued pursuant to

regulations approved or promulgated through rulemaking under title I, including parts C or D, of

the Federal Act, unless that term or condition is determined by the Department to be no longer

pertinent[tL

(3) Any standard or other requirement under section 111 ofthe Federal Act,

including section 111 (d)[t]~

(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[-;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 established pursuant to section 504(b) or section 114(a)(3)

ofthe Federal Act[~J~

(1) Any standard or other requirement governing solid waste incineration under

section 129 ofthe Federal Act[;l .

(8) Any standard or other requirement 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 other requirement 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 a title V permit[~J~

(11). Any national ambient air quality standard[~J~

(12) Any increment or visibility requirement under part 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 pursuant to the New Mexico Air Quality

Control Act, section 74-2-5(B) NMSA 1978.

F. "CFR" means the Code of Federal Regulations.

G. "Draft permit" means a version of a permit which the Department offers for

public participation or affected program review.

H. "Emission limitation" means a requirement established by US EPA, the Board,

or the 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 of a source to assure continuous reduction.

1. "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 [Ii]4epartment or determined at issuance or renewal 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 of a stationary source that emits or

has the potential to emit any regulated air pollutant or any air pollutant listed pursuant to section

l12(b) ofthe Federal Act. This term is not meant to alter or affect the defmition 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 pursuant to 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 approved pursuant to 40

CFRPart 51, Subpart I, including 40 CFR 51.165 and 40 CFR 51.166.

L. "Final permit" means the version of an operating permit issued by the

[IfJ4epartment that has met all review requirements of 20.2. 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 operating permit that meets the requirements of

20.2.70.303 NMAC.

O. . "Hazardous air pollutant" means an air contaminant that has been classified as

a hazardous air pollutant pursuant 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. "Maj or source" means any stationary source (or any group ofstationary sources

that are located on one or more contiguous or adjacent properties, 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. [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 or has

the potential to emit, in the aggregate, 10 tons or more per year of any hazardous air pollutant

which has been listed pursuant to section 112 (b) of the Federal Act, 25 Or more tons per year of

any combination ofsuch hazardous air pollutants (including any major source offugitive

emissions of any such pollutant, as determined by rule by the Administrator), or such lesser

quantity as the Administrator may establish by 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 Administrator by rule.

(2) A major stationary source of air pollutants that directly emits or has the

potential to emit, 100 or more tons per year of any air pollutant (including any major source of

fugitive emissions of any such pollutant, as determined by rule by the Administrator). The

fugitive emissions of a stationary source shall not be considered in determining whether it is a

major stationary source for the purposes of this 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 cement plants[-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 of charging more than 250 tons ofrefuse

per day[~J

(i) Hydrofluoric, sulfuric, or nitric acid plants[tJ

G) Petroleum refmeries[;-]

(k) Lime plants[tJ

20.2.70 NM.t\C Proposed Revisions Page 3 of18
(1) Phosphate rock processing plants[~]

(m) Coke oven batteries[-;-]

(n) Sulfur recovery plants[;]

(0) Carbon black plants (furnace process)[;]

(P) Primary lead smelters[~]

(q) Fuel conversion plante;]

(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 million British

thermal units per hour heat input[;]

. (aa) Any other stationary source category, which as of August 7,1980 is

being regulated under section III or 112 of the Federal Act.

(3) .A major stationary source as defined in part 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 of volatile 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 that the references in this paragraph to 100,50,25, and 10 tons per year of

. nitrogen oxides shall not apply with respect to any source for which the Administrator has 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 of volatile 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 under rules issued by the Administrator, sources with the potential to emit 50 tons

or more per year of carbon monoxide; and .

(d) [F]for particulate 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 any permit or group of permits covering a source that is issued, renewed, modified or

revised pursuant to this Part.

S. "Operator" means the person or persons responsible for the overall operation of

a facility.

T. II Ownerfl means the person or persons who ovm a facility or part of a 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

New Mexico Administrative Code, unless otherwise noted; as adopted or amended by the Board.

V. "Pa.rt 70 source" means any source subject to the permitting requirements ofu1is

Part, as provided in 20.2.70.200 1\TMAC - 20.2.70.299 NMAC.

...w. "Permit modification" means a revision to an operating pennit that meets the

requirements ofsignificant pemiit modifications, minor permit modifications, 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 plant that is mounted on any chassis or skids

and which 'can be moved by the application of a lifting or pulling force. In addition, there·shall

be no cable, chain, turnbuckle, bolt or other means (except electrical connections) by which any

piece of equipment is attached or clamped to any anchor, slab, or structure, including bedrock,

that must be removed prior to the application of a lifting or pulling 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 tills criteria

Z. "Potential to emit" means the maximum capacity of a stationary source to emit

any air pollutant under its physical and operational design. Any physical or operational

limitation on the capacity of a source to emit an air pollutant, including air pollution control

equipment and restrictions on hours of operation 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 of nitrogen.

AA. "Proposed permit" means the version of a permit that the [If]Qepartment

proposes to issue and forwards to the Administrator for review in compliance with 20.2.70.402

Nl\1AC.

AB. "Regulated air pollutant" means the folloVving:

(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 pollutant that is subject to 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 subject to 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 subject to requirements under section 1120) ofthe Federal

Act. Ifthe Administrator fails to promulgate a standard by the date established pursuant to

section Il2(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) 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 18
AD. irResponsible official" means one ofthe foUov,rillg:

(1) For a corporation: a president, secretary, treasurer, or vice-president ofthe

corporation in charge of a principal 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 of one or more

manufacturing, production, or operating facilities applying for or subject to 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 of authority to 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 other public agency: either a principal

execl?-tive officer or ranking elected official. For the purposes ofthis Part, a principal executive

officer of a federal agency includes the chief executive officer having responsibility for the

overall operations of a principal geographic unit ofthe agency (e.g., a Regional Administrator of

US EPA).

(4) Foran acid rain source: the' designated representative (as defined in section

402(26) of the Federal Act) in so far as actions, standards, requirements, or prohibitions under

title IV ofthe Federal Act or the regulations promulgated thereunder are concerned, and for any

other purposes 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 permit terms and conditions that are monitoring (including test methods),

recordkeeping, reporting, or compliance certification requirements.

AF. "Shutdown" means the cessation of operation of any air pollution control

equipment, process equipment or process for any purpose.

AG. "Solid waste incineration unit" means a distinct operating unit of any 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 Solid Waste Disposal Act;

(2) [MJmaterials recovery facilities (including primary or secondfu; smelters)

which combust waste for the primary purpose 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 which burn tires or used oil, but not including refuse-derived.

fuel) for the production of electric energy or in the case of qualifying cogeneration facilities

which burn homogeneous waste for the production of electric 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 curtain incinerators comply vvith opacity

limitations established by the Administrator by rule.

20.2.70 NMAC Proposed Revisions Page 6 of 18
AH. "Startupl! means the setting into operation of any air pollution control

equipment, process equipment or process 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 or permittee.

AK. "Temporary [S]~ource" means any plant that is situated in one location for a

period ofless than one year, after which it will be dismantled and removed Jrom 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 of a portable 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 or change in method of operations that is subject to 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 Page7of18
A... 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 a permit under

this Part is:

(1) [F-Jfor first time applications, one that is submitted 'within tvvelve (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 ofpermit renewal, one that is submitted at least tvvelve (12)

months prior to the date of permit expiration[-:L

(3) [¥]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[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, eKcept natural gas processing plants, ';,rhich have been

issued a permit, including a permit modification, pursuant to 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, except that persons ov.'Iling

more than one source in this category may submit applications for half oftheir sources by

February 2, 1995 and submit the remaining applications by }.4arch 19, 1995;

(b) For sources, eJccept natural gas processing plants, \vblch were issued a'

permit, including a permit modification, pursuant to 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 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 of whether it has been

determined or deemed to be complete, the [D]Qepartment determines that additional information

is necessary to evaluate or take 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 or who has submitted

incorrect information in a permit 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 necessary to

address any requirements that become applicable to the source after the date it filed a complete

application but prior to release of a draft permit. .

(4) The applicant's ability to operate without apermit, 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, provided that the applicant adequately

submits any requested additional information by 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 with the [D]Qepartment. The applicant shall submit three (3)

copies ofthe permit application, or more, as requested by the [&lgepartment. An applicant may

not omit information 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 of 18
Emission Fees). Fugitive emissions shall be included ill the permit application in the same

manner as stack emissions, regardless of whether the source category in question is included in

the list ofsources contained in the defInition ofmajor source. All applications shall[7] meet the

follmvinQ: requirements.

(1) Be made on forms furnished by the [:Q-]gepartrnent, which for the acid rain

portions of permit applications and compliance plans shall be on nationally-standardized forms

to the extent required by regulations promulgated under title TV ofthe Federal Act[;-]"-

. (2) State the company's name and address (and, if different, 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 of

incorporation or principal registration to do business and corporate or partnership relationship to

other permittees subject to this Part, and the telephone numbers and names ofthe owners'

agent(s) and the site contact(s) familiar with plant operations[;-]"- .

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

. (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 Surveyor the 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 of all air pollutants 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 N1'v1AC). This shall include:

(a) [A].§; process flow sheet of all 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 'Vvith the 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 or regulate emissions;

(e) [IJidentification and full description, including all calculations and the

basis for all control efficiencies presented, of air pollution control equipment and compliance

monitoring devices or activities; .

(f) [+]!he maximum and standard operating schedules ofthe source, as well

as any work practice 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) [GJQther relevant information as the (DJgepartment may reasonably

require or which are required by any applicable requirements (including information related to

stack height limitations developed pursuant 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.~epartmentto 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 of all applicable air pollution control

requirements, including: .

(a) [.g]~ufficient information related to the emissions ofregulated air

pollutants to verify the requirements that are applicable to the source; and

(b) [A]~ description of or reference to any applicable test method for

determining compliance Vi~th each applicable requirement[;-t

(8) Provide an explanation of any 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 or to determine the applicability ofsuch

requirements, including information necessary to collect any permit fees owed under 20.2.71

NMAC (Operating Permit Emission Fees)[~l.

[(10) For applications .....vhich are required under the transition schedule in

paragraph (4) of subsection B 0[20.2.70.300 l'{}'fAC, include a dispersion modeling analysis,

using US EPA approved models and procedures, showing whether emissions from the source

would cause air pollutant concentrations in excess of any national ambient air quality standard.

Air pollutants which are not emitted in significant (as defined in 40 CFR 52.21 (b)(23)(i))

amounts during routine operations need not be modeled.

(9:) This requirement shall not apply to the follov;ing:

Ei) i'£ Part 70 source issued a permit under 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 subject to 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 of compliance, 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 on the 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 permit renewal applications. this certification shall be based on .

compliance with the relevant terms and conditions ofthe current operatin£ permit.

(b) A statement of methods 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 statement that the source ViriU cont1.L"1ue to be in compliance vvith

applicable requirements for willch it is in compliance, and will, ip. a timely manner or at such

schedule expressly required by the applicable requirement, meet additional applicable

requirements that become effective during the permit termH.:.

(d) A schedule for submission of compliance certifications during the permit

term, to be submitted no less frequently than annually, or more frequently if specified by the

underlying applicable requirement or by the [ff]gepartment [;-aool

(e) . A statement indicating the source's compliance status with any enhanced

monitoring aIld compliance certification requirements ofthe Federal Act.

[tR1J@ For sources that are not in compliance with all applicable requirements

at the time of permit application, provide a compliance plan that contains-:- all of the following.

(a) A description 0fthe compliance status ofthe source v,rith respect to all

applicable requirementsH.:.

(b) A narrative description of how the source mIl acilleve compliance mth

such requir:ements for which it is 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

of compliance 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 of any consent decree or

administrative order shall not be in any way diminished by the schedule of compliance. Any

such schedule of compliance shall be supplemental to, and shall not prohibit 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 of certified progress reports no less

frequently than every six (6) months[;--a:n41

(e) For the portion of each acid rain source subject to the acid rain

provisions oftitle N ofthe Federal Act, the compliance plan content requirements specified in

this paragraph, except as specifically superseded by regulations promulgated under title N ofthe

Federal Act with regard to the schedule and methodes) the source mIl use to achieve compliance

with the acid rain emissions limitations.

E. Certification[-:-J.:. Any document, including any application form, report, or

compliance certification, submitted pursuant to this Part shall contain certification by a

responsible official oftruth, accuracy, and completeness. This certification and any other

certification required 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 a permit, 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 in the 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\1AC20.2.70.299 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 of and 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 in the event of a challenge to anY portions ofthe permit;

(e) [IJinchide a provision to ensure that 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 ofthe permit.

Any permit noncompliance is grounds for enforcement action. In addition, noncompliance with

federally enforceable permit conditions constitutes a violation ofthe Federal ActH"-

(b) It shall not be a defense for a permittee 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[-;-t

(c) The permit may be modified, reopened and revised, revoked and

reissued, or terminated for cause in accordance with 20.2.70.405 NMAC[-;-l

(d) The filing of a request by the permittee for a permit modification,

revocation and reissuance, or termination, or of a notification of planned changes or anticipated

noncompliance shall not stay any permit conditionH.c

(e) The permit does not convey any property rights of any sort, or any

exclusive privilege[-;-l

(f) Within the period specified by the [ff]gepartment, the permittee shall

furnish any information that the [If)gepartment may request in writing to determine whether

cause exists for reopening and revising, revoking and reissuing, or termination of the permit or to

determine compliance 'with the permit. Upon request, the permittee shall also furnish to the

[P)gepartment copies ofrecords required by the permit to 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 that the permittee maintain a log at the pennitted facility .

which documents, contemporaneously with 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 of its 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 of18
permit 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,nder the Federal Act or under

any ofits applicable requirements.

(6) The issuance of a permit, or the filing or approval of a compliance plan, 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 or regulation.

(7) The [D]Qepartrnent may include part or all ofthe contents ofthe application as

terms and conditions of the permit or permit modification. The [D]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 in the operating permit in

the same manner as stack emissions, regardless of whether the source category in question is

included in the list ofsources contained in the definition of major source.

(9) The acid rain portion of operating permits for acid rain sources shall

additionally:

(a) [&]~tate that, where an applicable requirement of the Federal Act is more

stringent than an applicable requirement ofregulations promulgated under title IV of the Federal

Act, both provisions shall be incorporated into the permit and shall be enforceable by the

Adrninistrator[7]; and

(b) [GJ.~ontain a permit condition prohibiting emissions exceeding any

allowances that the acid rain source la"Wfully holds under title IV of the Federal Act or the

regulations promulgated thereunder. No permit modification under this Part shall be required for

increases in emissions that are 'authorized by allowances acquired pursuant to 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 of allowances 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 of the Federal Act.

B. Pennit [D]Quration[:].:. The [Qlctepartment shall issue operating permits for a

fixed term offive (5) years.

C. Monitoring[:-t

(1) Each permit shall contain all emissions monitoring requirements, and analysis

procedures or test methods, required to assure and verify compliance with the terms and

conditions of the 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 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 of 20.2. 70.302 NMAC. Such monitoring requirements shall

assure use ofterms, test methods, units, averaging periods, and other statistical conventions

consistent with the applicable requrrement.

(3) The pennit shall also contain specific requirements concerning t.'J.e use,

maintenance, and, when appropriate, installation of monitoring equipment or methods.

D. RecordkeepingH.:.

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

compliance 'With the terms and conditions of the 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 that performed the analyses;

(d) [+]!he analytical techniques or methods used;

(e) [+]!h~ results ofsuch analyses; and

(f) [+]1he operating conditions existing at the time of s~pling or

measurement.

(2) Records of all monitoring data and support information shall be retained for a

period of at 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 of all

reports required by the permit.

E. Reporting[-:-].=. The permit shall require reporting sufficient to assure and verify

compliance with the terms and conditions of the permit and all applicable requirements,

including[-;-] all oime following.

(1) Submittal ofreports of any 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 of deviations from permit requirements, including

emergencies, must be ciearly identified in such reports. All required reports must be certified by

a responsible official consistent with subsection E of 20.2.70.300 1'-lMAc[;l

(2) . Prompt reporting of all deviations (including emergencies) from permit

requirements, including the date, time, duration and probable cause of such deviations, the

quantity and pollutant type of excess 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 of the start of the next business day and v,rritten

notification Virithin ten (1 0) days[~].=.

(3) Submittal of compliance 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 relevant to the source], including [those related to] emission limitations~

standards, or work practices. The reports shall be due to the [I)]Qepartment 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 [:Q-]4epartment and shall include:

(a) [+]1he identification of each term 9r condition ofthe permit that is the

basis ofthe certification;

(b) [+]!he compliance status of the 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-]gepartment may require to determine the

compliance status of the source[-;--aB€l]~

(4) Such additional provisions as may be specified by w.1.e Administrator to

determine the compliance status of the source.

20.2.70 NMAC Proposed Revisions Page 14 of 18
F. 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. Such permits shall not apply to acid rain sources and snail include

conditions to assure that:

(1) [+]~e source is installed at all locations in a manner conforrrJing "with the

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 of each change in location;

(4) [NJgotification shall include a legal description of where 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 of a national ambient air quality standard or increment or visibility reqUirement

under Part C oftitle I ofthe FederaJ. Act. The cP]gepartment may 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 with this Part, pennits shall also[.;.] include all the following.

(1) Require that, upon presentation of credentials and other documents as may be

required by law, the permittee shall allow authorized representatives ofthe [&]gepartment to

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 must be kept under the conditions ofthe

permit;

(b) CHJhave access to and copy any records that must be kept under the

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 or parameters 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 under paragraph (12) of subsection D of

20.2.70.300 NMAC to have a schedule of compliance submit progress reports to the

~]gepartrnent at least semiannually, or more frequently if specified in the applicable

requirement or by the [D]gepartment. Such progress reports shall be consistent with the

schedule of compliance and requirements of paragraph (12) ofsubsection D of20.2.70.300

NMAC and shall contain:

(a) [&]gates 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) [A]~ explanation of why any dates in the schedule of compliance were

not or "VvilJ not be met, and any preventive or corrective measures adopted.

(3) Include such other provisions as the [D]gepartrnent may 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) The permittee may make section S02(b)(1 0) changes, as defIned in

20.2.70.7 NlV1AC, without applying for a pennit modification, ifthose changes are not title I

modifications and the changes do not caus~ the facility to exceed the emissions allowable under

the permit (whether expressed as a rate of emissions or in terms oftotal emissions).

(b) For each such change, the permittee shall provide written notification to

the [ff]gepartrnent and the Administrator at least seven (7) days in advance ofthe proposed

changes. Such notification shall in,clude a brief description ofthe change vlithin 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 of the change.

(c) The permittee and [Jd-]gepartment shall attach each such notice to their

copy ofthe relevant permit.

(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. If the 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, if an applicant requests it, issue permits that

contain terms and conditions allowing for the trading of emissions increases and decreases in the

permitted facility solely for the purpose of complying 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 N1v1AC to det~rmine

compliance. If applicable 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 application proposed replicable

procedures and permit terms that ensure the emissions trades are quantifiable and enforceable.

The [I}]gepartment shall not include in the emissions trading provisions any emissions units for

which emissions are not qtlantmable 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 [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 that will result and how these increases and decreases in emissions will comply with

the terms and conditions ofthe permit.

(d) The permittee and [±}]gepartment shall attach each such notice to their

copy ofthe relevant permit.

I. Off-Permit Changes[-:-l

(1) Permittees are allowed to make, v,rithout a permit modification, changes that

are not addressed or prohibited by the operating permit, if:

(a) [BJ~ach such change meets all applicable requirements and shall not

violate any existing permit term or condition;

(b) [.g]~uch changes are not subject to any requirements under title IV ofthe

Federal Act and are not title I modifications;

(c) [.gJ~uch changes are not subject to pennit modification procedures under

20.2.70.404 N1VlA.C; and

20.2.70 NMAC Proposed Revisions Page 16 of 18
(d) [+]!he permittee provides contemporaneous 'written notice to the

[D]4epartrnent and US EPA of each 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 requirement that would apply as a result ofthe

change.

(2) The permittee shall keep a record describing changes made at the source that

result in emissions of a 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 [D]gepartment shall expressly include in a

Part 70 (20.2.70 NMAC) permit a provision stating that compliance with the conditions of the

permit shall be deemed compliance with any applicable requirements as ofthe date of permit

issuance, provided that:

(a) [£-]~uch applicable requirements are included aiid are specifically

identified in the permit; or

(b) [:f]1he [Ii-J4epartment, in acting on the permit application or significant

permit 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 1\TMAC) 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 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 of the Administrator under that section, or the provisions ofthe

New Mexico Air Quality Control Act, section 74-2-10 NMSA 1978;

(b) [+]the liability of an O¥iner or operator of a source for any violation of

applicable requirements prior to or at the time of permit issuance;

(c) [+]!he applicable requirements ofthe acid rain program, consistent with

section 408(a) ofthe Federal Act; or

(d) [:f]the· ability of US EPA to obtain information from a source pursuant to

section 114 ofthe Federal Act, or the [Ii-]gepartment to obtain information subj"ect to 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 past the expiration date ofthe permit pursuant 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 of emissions hading within a facility pursuant to paragraph (2) of

subsection H of 20.2.70.302 NMAC, and to all terms and conditions under each operating

scenario included pursuant to paragraph (3) ofsubsection 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 minor permit modifications 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, or to permit terms or conditions for which notice has been given to reopen

or revoke all or part under 20.2.70.405 NMAC.

20.2.70 NMAC Proposed Revisions Page 17 of 18
20.2.70.304 EMERGENCY PROVISION[i-l:.

A. An "emergency" means any situation arising from sudden and reasonably

unforeseeable events beyond the control ofthe permittee, including acts of God, 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 caused by improperly designed equipment, lack of preventive 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 through properly 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 tiine being properly operated;

(3) During the period of the emergency the permittee 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 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

of an emergency has the burden of proof.

D. This provision is in addition to any emergency or upset provision contained in any

applicable requirement[, except that Part 70 sources srroll not be subj eet to the provisions of

20.2.7 }J}.MC (Excess Emissions during Malfunction, Star---tup, Shutdovm, or Scheduled

Maintenance) for pennit terms and conditions issued under 20.2.70 }JA,MC].

20.2.70 NMAC Proposed Revisions Page 18 of 18
Tne Department proposes that the Board adopt the 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 bv that part. This

section does not limit the applicability offris part to sources required to obtain a permit ooder

20.2.72 NVlAC. nor does it limit which terms and conditions of permits issued pursuant to

20.2.72 NMAC are applicable requirements for permits issued pursuant to 20.2.70 N11AC.

[20.2.3.9} 20.2.3.10 to 20.2.3.107 [RESERVED]

NMED EXH·18IT

#38
Tne Depa..'iment proposes that the Board adopt the 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 of an existing SOUTce that [wE±e!:I] will emit a

regulated air contaminant such that the ambient impact ofthe contarrlli"1ant would 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 SOUTce or modification of an existing SOUTce that [:wfii.efi] is not a major

stationary SOUTce or major modification as defined in 20.2.79 NMAC and [¥fl:rieh] that v,rill emit

a regulated air contarillnant such that 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 SOUTce that does not propose an increase in emissions and that will

emit a regulated 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 or New Mexico ambient air quality standard for the contaminant.

B. A new SOUTce or modification of an existing SOUTce 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 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) 20.2.79.117NMAC (Air Quality Benefit)

C. An existing source that is subject to this section shall demonstrate a net air quality

benefit of at 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 benefit must

also meet the requirements of20.2.79.117 NMAC (Air Qualitv Benefit).

NMED EXHIBIT

#3C
Trujillo. 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

#4
Jerry 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

Jarrett Airhart (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

2
Lori 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

3
Richard 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

4
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NAME

STATE STANDARDS, 8 JANUARY 01

ORGANIZATION· TELEPHONE E-MAIL

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GARY Eo JOHNSON

GOVI;RNOR

January 19, 2001

Dear Interested Party:

State ofNew Mexico

ENVIRONMENT DEPARTMENT

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

DEPUTY SEc::RE7:AAY

On the 8

th ofJanuary, the New Mexico Environment Department's Air Quality Bureau 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 effect the 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 major point that was identified was a need to clarifY the 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 Title V Operating Permits." 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 a final 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,

Sandra Ely

Air Quality Bureau Chief
GARYE. JOHNSON

GOVERNOR

September 25,2002

Dear Interested Party:

State ofNew Mexico

ENVIRONMENTDEPARTMENT

AIR QUALITYBURBAU .

2048 Galisteo Street

Santa Fe, New Mexico 87505

Telephone (505) 827-1494

Fax (505) 827-1523

JOHN R. D'ANTONIO, JR.

SECRETARY

The New Mexico Environment Department is preparing to present testimony to the Environmental Improvement

Board concerning the Industry Working Group's petition to amend 20.2.70 NMAC, Operating Permits and has

requested that the EIB hold a hearing on the same day regarding a related Department proposal. The hearings'on

the proposed amendments are scheduled before the Environmental Improvement Board on November 8, 2002.

This letter is to· announce an informational meeting to be held by the Air Quality Bureau on October 7, 2002,

regarding the proposed 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 of air pollution; that is,

those sources that emit 100 tons per year ormore of an air pollutant, or 10 tons per year ofanyone hazardous air

pollutant, or 25 tons per year of any combination ofhazardous air pollutants.

The proposed amendments relate to the following issues: (I) Whether and how New Mexico AmbientAir Quality

Standards (NMAAQS) and the National Ambient Air Quality Standards (NAAQS) would continue to be included

in operating permits as applicable requirements; (2) To what extent would modeling be required for new permit

applications and renewals, and; (3) In cases where modeling shows that emissions from a major source will result

in-ambient impacts in excess ofNMAAQS, what would be required in a compliance plan. There are several other

amendments proposed to the regulation as well.

The Air Quality Bureau will be holding a public meeting on the proposed regulatory changes on October 7 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, Santa Fe. lfyou are interested in attending this meeting, please contact

Rita Trujillo of the Air Quality Bureau at (505) 955-8024 or via e-mail atrita_trujillo@nmenv.state.nm.us.
GARYE. JOHNSON

GOVERNOR

State ofNew Idexico

ENVIRONMENTDEPARTMENT

AIR QUALITYBUREAU

2048 Galisteo Street

Santa Fe, New Mexico 87505

Telephone (505) 827-1494

Fax (505) 827-1523

Informational Meeting Regarding Proposed Revisions to

20.2.70 NMAC - Operating Permits

and the Applicability of Ambient Air Quality Standards

October 8, 2002

AGENDA

JOHN R. D'ANTONIO, JR.

SECRETARY

Introductions (15 minutes)

Air Quality Bureau Presentation (30 minutes)

.:. What are the New Mexico Ambient Air Quality Standards (NMAAQS) and the

National Ambient Air Quality Standards (NAAQS)?

.:•. The Applicability ofNMAAQS and NAAQS to Operating Permits

.:. The Department's Proposal for Revision of20.2.70 NMAC - Operating Permits

Break (15 minutes)

Questions and Comments

Adjourn (by 4:30 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. November 4 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 if you have any questions or have any trouble downloading

any of the documents from our website.

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

7/17/2006
Ralph 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; Margaret Lowe;

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; Cliff Larsen; Curtis DeVore; Doug Meiklejohn; Heather Anderson; Hugh Church; J.D.

Bullington; Joe Kinnikin.; K. Barnett, Jr.; Krishan Wahi; Mark Vigil; Paul Robinson; Ralph

Gruebel; Richard Harris; Scott Oliver
New Mexico Environment Department

Public Meeting on Proposed Revisions to 20.2.70 NMAC, Santa Fe, NM

Name Affiliation Address Phone

September 21,2004

E-mail

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Trujillo, 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

1
New Mexico Environment Department

Parts 3, 70, and 72 Revisions Public Meeting

Name AffIliation Address Phone E-mail'

July 6,2006

(03&\ N· ~)"" ~~

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NEW MEXICO

ENVIRONMENTAL

IMPROVEMENT BOARD

NOnCE OF PUBLIC MEETlNG

AND RUlE MAKING HEARING , The New Mexico Environmental

Improvement Board I'Board') witt

holda 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 lor affected source!

to subln« dispersion modellng fOI

and to certify compliance wlln tho

National Amblenl Air QualIly Sian'

dards' rNAAQS'); and to 'require

lhat sources permllted under·

20.2.70 NMAC mile'v plllT11l1s)

obtaina202.72 NMAC or 20.2.74

NMAC permll If they have' nol

done so pre\lloi/sly. NMED's pro' posal clarifies lhat ceriUicalions at

comptianC! for new 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 10 give NMED di~cretion III requiring ap·

I pll~ants to submll operal/onal plans lor stan·up and shutdown. INMEO proposes 10 revi'se

20.2.70.304.0 NMAC to malch lhe

equivalent federal·language in 40

CfR 70.6. With this reviSion Ihe

nule· will require TilleVsoUrces to

report Vlolalions of the terms and

conditions In Ihelr permits and

claim affinnaUve defenses for such

violalions Ina 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 other conditions

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 obtainedapenn" under

202.72 NMAC (Construction Permits) or 20.2.74 NMAC (Permits • Prevention 01 Significant Deterioration) ensures that all sources In

' New Mex1cu will meel !he r~u"e- i

ments 01 20.2.3 NMAC. This isa. revision to the New Mexico Stale

• Implementalion Plan.,

I

Proposed 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 emila 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, subsectionC Is added 10

require Ihat eXisting sources su~

jeel to the seclion must demon'

stratea net air qualily beneftt of at

leasta 20 percentfllduclion In amble~! irnpacllor e.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 relevant ev>

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 Boardawritten 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, includinga description of

Ihelr aoucalion and war\( back·

ground;. IS) summerize or lncJude

acopy of' the direct testimony of each teCh·

nlcal witness and stale the anticl·

pated duration ci the 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 lor the 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·21SO 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

of the leslimony. A member 01 the ganeral pubDc

who wishes 10 submlla 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 beinga part 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 convenea meeUng al·

ler tha hearing \0 consider aelion

, on the proposal. 'Ioumal: May 31,2005

NMED EXHIBIT

#5
PRICEJ:? \ 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 vrfl0 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 of1'1\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 of Publication in the New Mexico Register

-----,

Notice of Public Meeting

I certify that the agency noted below has published legal notices or rules in the New Mexico

Register, and that payment has been assessed by invoice for said legal notice or publication,

which appeared on the date and in the volume and issue number noted 0b

Date of Publication: 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 proof copies ofthe legal notices or rules which were published in the New

Mexico Register. These document the fact that your Notice ofRuJemaking, Proposed Rule, or

Adopted Rule has been published in the New Mexico Register.

Form SRC-2002-04
510 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 Mex ico. 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~onable 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 of intent

to do so. The notice of intent 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 of the

direct testimony of each technical witness

and state the anticipated duration of the testimony of that witness;

(4) list and describe, or attach, each

exhibit anticipated to be offered by that person at the hearing; and

(5) attach the text of any recommended

modifications to the proposed changes.

Notices of intent for the hearing must be

received in the Office of the Board not later

than 5:00 pm on July 7, 2006, and should

reference the docket number, EIB 05-12(R),

and the date of the hearing. Notices of intent

to present technical testimony should be

submmed to:

Joyce Medina, Board Administrator

Office of the 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 of the 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 of the testimony.

A member of the general publ ic who wishes to submit a written statement for the

record, in Iieu of providing 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 of general 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 of Association 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 of the

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 of the hearing, the Mine Safety

Advisory Board may deliberate and make a

recommendation to the State Mine

Inspector on the proposed rule changes.

A copy of the 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 Quality Bureau

New Mexico Environment Department

1190 St. Francis Drive

P.O. Box 26110

Santa Fe, 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)

Dear Mr. Goodyear:

Thank you for your email in which you requested comments regarding proposed changes

to 20.2.70 NMAC, section 304.D.

The proposed change that 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 upset rule as an applicable requirement ofits title V program.

However, there is a problem with Section 20.2.7.109. Although the State is not making

changes to Section 20.2.7.109 directly, that provision now 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 Air Act as outlined in a 1999 memorandum, State

Implementation Plans (SIPs): Policy Regarding Excess Emissions During Malfunctions, Startup,

and Shutdown. Section 20.2.7.109 states:

20.2.7.109 OPERATIONS IN VIOLATION: Operation of any process equipment or air

pollution control equipment in a manner inconsistent with any Air Quality Control

Regulation which is a result of malfunction, startup, shutdown or scheduled maintenance

is a violation of an applicable Air Quality Control Regulation unless the owner or

operator ofthe facility has complied with the notification requirements of 20.2.7.110

NMAC in a timely 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 Act because

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 or interfere with

maintenance ofthe ambient air quality standards, EPA views all excess emissions as violations

ofthe applicable emission limitation. However, the State or EPA 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 for penalties 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 further information.

I thank you for the opportunity to comment, and I hope that this is helpful. If you have

any questions, please call me at (214) 665-7250 or Daron Page ofmy staff at (214) 665-7222.

Sincerely yours,

Enclosure
UNITED 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

defenses 4 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