GARY E. JOHNSON 

Governor 

November 6, 1998 

Ms" Jole Luehrs (6PD-R) 

Mr Tom Diggs (6PD-L) 

USEP A Region 6 

1445 Ross Avenue, Suite 1200 

Dallas, Texas 75202-2733 

State of Nel<' Mexico 

ENVIRONMENT DEPARTMENT 

Harold Runnels Building 

/190 St. Francis Drive, P"O" Drawer 16110 

Santa Fe, New }.lexica 87502-6110 PETER MAGGIORE 

Secretary 

Subject: Corrections to 20 NMAC 2"70 - Operating Permits and 20 NMAC 2"72 - Construction 

Permits 

Dear Ms Luehrs and Mr Diggs: 

During refurmatting of the New Mexico Air Quality Control Regulations (AQCR) into the New Mexico 

Administrative Code (NMAC) format, several typogmphical and numbering errors were made" The first to 

be corrected was a table in AQCR 702 which was inadvertently left out of 20 NMAC 2"72 - Construction 

Permits" The New Mexico Environmental hnprovement Board (E!B) approved adding the table to 20 

NMAC 2"72 on July 13, 1998 in order to make it consistent with the superceded AQCR. The corrected rule 

was effective as of August 14, 1998. Upon discovery of the omission of the table, the Air Quality Bureau 

thoroughly reviewed both 20 NMAC 2. 70 and 20 NMAC 2. 72 for otl1er fonnatting errors. 

On October 9, 1998, the Environment Department presented additional corrections to errors in 20 NMAC 

2.70 - Operating Permits and 20 NMAC 2.72 - Construc.tion Permits to the EIB. Since the additional 

corrections reflected the rules as originally adopted by the EIB as AQCR 770 and AQCR 702 respectively, 

the EIB accepted the corrections. The corrected rules will become effective as ofNovember 14, 1998. 

AQCR 770 and tl1e reformatted 20 NMAC 2.70 are part of the State's operating permit program approved by 

EPA under Title V of the Clean Air Act. Portions of AQCR 702 have been previously approved by the EPA 

as part of New Mexico's State hnplementation Plan (SIP). Those sections which are being corrected and are 

part oftl1e SIP are noted in Attachment A. 

Attached are copies of the corrections to the regulations and copies of the entire current regulations as 

corrected for your files. Please contact Lany Weaver at (505) 827-0043 or Rita Trujillo at (505) 827-2339 if 

you have any questions. 

Sincerely, 

~ mawt/JW 

Peter Maggiore 

Secretary 

Enclosure: Attachments A, B & C (outline of corrections) 

Corrected20 NMAC 2.70 and 20 NMAC 2.72 (full text) 

cc: Cecilia Williams, Bureau Chief, Air Quality Bureau 
ATTACHMENT A 

CORRECTIONS TO 20 NMAC PARTS 2.70 AND 2.72 BASED ON REFORMATTING 

Prior to Reformatting After Reformatting Attachment 

AQCR Section NMAC Part Section Nature of Mistake Reference Correction Requested* 

770 III.A.4.e.ix 70 0~.D.5.i Improper reference See Attachment B Correct reference to read: " ... all of the 

1- Page B-1 information required in (41 J.i!l through 1st 

(bl above ... " 

III.C.1.b.iii VD2.A.2.c Improper reference See Attachment B Change "Section 404" to "Section 405" 

"" / 

PaQe B-1 

Ill. C. 7 V" 302.G Misnumbered See Attachment B See attached. The first sentence segment 

Pages B-2 • B-3 ("to assure and verify compliance ... permits 

shall also:") should apply to the entire 

section, rather than just the first 

OK I paragraph. 

N/A ~of Subpart Misnumbered See Attachment B Correct to read: "~ ~-399. 

Ill Page B-1 I [RESERVED]" 

v'/'02 II.K.2 72 V210.C Misriumbered See Attachment C See attached. This paragraph should only 

Pages C-1 • C-4 apply to subsection 210.8 rather than the 

•• •• entire Section 210. Renumber 210.G to 

be 210.~ and clarify language by adding 

" ... the requirements of this S.§ection 

!210.8\ apply ... " 

IV.A.5 1/"'300. E Missing word See Attachment C In the second sentence of this definition, 

Page C-5 add "Any physical or operational 

•• •• limitation ... shall be treated as~ of its 

. d est ;igr n ... " 

III.F.4, v'405.C.5, Misnumbered See Attachment C See attached. Renumber 405.C.5.a s to 

III.F.4.i-iii 405.C.5.a-c Pages C-6 • C-9 405.~. 

v ,802 • Table C Left out See Attachment C Table was inadvertently left out when 

Page C-10 reformatting from AQCR 702 to 20 NMAC 

2.72 was done. 

'Incorrect text to be deleted is shown in strike-out text (eeleteG-IM!); corrected text to be inserted is shown with double underline (lnsertruUext). 

"These sections are part of New Mexico's SIP. 
ATTACHMENT B 

CORRECTIONS TO 20 NMAC 2.70 

Incorrect text to be deleted is shown in strikeout text (deleted teld); corrected llelltitn be: inserted 

is shown with double underline (inserted text). 

AQCR 770.Ill.A.4.e.ix (prior to reformatting) 

(ix) for each alternative operating scenario identified by the applicant, aiJ oftlie-infurrnation 

required in (i) through (viii) above, as well as additional information determinedto•benecessary 

by the department to define such alternative operating scenarios; 

20 NMAC 2. 70.300.D.5.i (formerly AQCR 770.Ill.A.4.e.ix) 

(i) For each alternative operating scenario identified by the applicant, all of the information 

required in tB W through ~ !h1 above, as well as additional information determined to be 

necessary by the Department to define such alternative operating scenarios; 

AQCR 770.III.C.l.b.iii (prior to reformatting) 

(iii) the permit may be modified, reopened and reVised, revoked and reissued> or terminated fur 

cause in accordance with Section IV.F. of this regulation; 

(Note: AQCR 770, Section IV.F title was "Permit Reopening, Revocation or Termination") 

20 NMAC 2.70.302.A.2.c (formerly AQCR 770.III.C.l.b.iii) 

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

for cause in accordance with Section 4G4 405 of this Part; 

(Note: 20 NMAC 2. 70.404 title is "Permit Modifications"; 20 NMAC 2.70.405 title is 

"Permit Reopening, Revocation or Termination") 

20 NMAC 2.72.3 (no prior AQCR version) 

3@~- 399. [RESERVED] (Note: 20NMAC 2.70.303 and 2.70.304 existinthecurrent 

regulation.) 

ATIACHMENT B PageB-1 

20 NMAC 2. 70 Proposed Corrections 
AQCR 770.IILC.7 (prior to reformatting) 

7. Compliance. 

To assure and verifY compliance with the terms and conditions of the permit and with this 

regulation, permits shall also: 

a. Require that, upon presentation of credentials and other documents as may be 

required by Jaw, the permittee shall allow authorized representatives of the Department to 

perform the following: 

(i) 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; 

(ii) have access to and copy any records that must be kept under the conditions 

of the permit; 

(iii) inspect any facilities, equipment (including monitoring and air pollution 

control equipment), practices, or operations regulated or required under the 

permit; and 

(iv) 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. 

b. Require that sources required under Section III.A.4.a. of this regulation 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 

Section III.A.4. I. and shall contain: • . 

(i) 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 

(ii) 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. 

c. Include such other provisions as the department may require. 

ATIACHMENTB PageB-2 

20 NMAC 2. 70 Proposed Corrections 
20 NMAC 2.70.302.G (formerly AQCR 770.III.C.7) 

G. Compliance+ To assure and verify compliance with the terms and conditions of 

the permit and with this Part permits shall alsol Require that, upon presentation of credentials and other documents 

as may be required by law, the pennittee shall allow authorized representatives ofthe Department 

to perform the following: 

W (1) Enter upon the pennittee's premises where a source is 

located or emission related activity is conducted, or where records must be kept under the 

conditions of the pennit; 

(2) Have access to and copy any records that must be kept 

under the conditions of the pennit; 

W (3) Inspect any facilities, equipment (including monitoring and 

air pollution control equipment), practices, or operations regulated or required under the pennit; 

and 

(d) (4) Sample or monitor any substances or parameters for the 

purpose of assuring compliance with the pennit or applicable requirements or as otherwise 

authorized by the Federal Act. [I 1-30-95] 

2. Require that sources required under Section 300.D.12 of this Part 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 Section 300.D.12 

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. [I 1-30-95] 

3. Include such other provisions as the Department may require. [11-30-95] 

ATIACHMENT B Page B-3 

20 NMAC 2. 70 Proposed Corrections 
NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD 

P. 0. BOX 26110/1190 ST. FRANCIS DRIVE 

SANTA FE, NEW MEXICO 87502-0 II 0 

TITLE 20 

CHAPTER2 

PART70 

ENVIRONMENTAL PROTECTION 

Affi QUALITY (STATEWIDE) 

OPERATING PERMITS 

100. 

101. 

102. 

103. 

104. 

105. 

106. 

107. 

TABLE OF CONTENTS 

SUBPART I- GENERAL PROVISIONS 

Issuing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I 

Scope. . . . . . . . .............................................. I 

Statutory Authority . . . . . . . . . .................................. I 

Duration . . . . . . . . . . . . . . . . . ...................................... I 

Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I 

Objective . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ _ .. . 

Amendment and Supersession of Prior Regulations . . . . . . . . . . . . . . . . . . . . . . . . . I 

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I 

108. Documents. . . . . . . . . . . . . . . . . . I I 

I 09 - I 99. [Reserved] . . . . . . . . . . . . . . . . . . . I I 

200. 

201. 

202. 

203. 

SUBPART II - APPLICABILITY 

Part 70 Sources ........ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I I 

Requirement for a Permit: . . . . . . . . . . . . . . . . . . . . . . . . . . . . I I 

Source Category Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I 2 

Existing Major Sources Which Are Not Required to Have a Permit under Part 72-

Construction Permits .............. . 12 

204. Bernalillo County . . ... I 3 

205. Indian Tribal Jurisdiction .13 

206 - 299. [Reserved] ...... . . .............. 13 

SUBPART III- PERMIT REQUIREMENTS 

300. Permit Applications 

A Duty to Apply 

B. Timely Application 

C. Completeness of Application 

D. Content of Application .. 

13 

.13 

......... 13 

.................... 14 

. .................. 14 
E. Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 

30 I. Confidential information Protection ....................................... 18 

302. Permit Content ....................................................... 18 

A. Permit Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 

B. Permit Duration ........................... 21 

C. Monitoring . . . .......................... 2 I 

D. Recordkeeping . . . . . . . . . . . . . ........................... 22 

E. Reporting . . . . . . .......................................... 22 

F. Portable and Temporary Sources . . . . . ........................... 23 

G. Compliance . . . . . . . . . . . . . . . . . . . . . .......................... 24 

H. Operational Flexibility ............................................ 24 

I. Off-permit Changes . . . . . . . . ............................... 26 

J Permit Shield . . . . . . . . . . .................................... 26 

303. General Permits ...................................................... 27 

A. Issuance of General Permits ....................................... 27 

B. Authorization to Operate under a General Permit ....................... 28 

304. Emergency Provision . . . . . . . . . . . . . . . . . . . .......................... 28 

305 - 399. [Reserved] ....................................................... 29 

SUBPART IV- PERMIT PROCESSING 

400. Action on Permit Applications ........................................... 29 

40 I. Public Participation ................................................... 3 I 

402. Review by the Administrator and Affected Programs .......................... 33 

A. Notification . . . . . . . . . . . .................................... 33 

B. Responses to Objections .......................................... 34 

403. Petitions for Review of Final Action ....................................... 34 

A. Hearing Before the Board ..................................... 34 

B. Judicial Review . . . . . . . . . . . . ................................ : 35 

404. Permit Modifications . . . . . . . . . . . . .................................. 35 

A. Administrative Permit Amendments ............................ 35 

B. Minor Permit Modifications . . . . . . . . . ........................ 36 

C. Significant Permit Modifications . . . . . . . . . ................. 39 

D. Modifications to Acid Rain Sources .................. 40 

405. Permit Reopening, Revocation or Termination . . . .................. 40 

A. Action by the Department .................. 40 

B. Action by the Administrator ..................... 41 

C. Compliance Orders . . ...................... 41 

406. Citizen Suits . . . . . . . . . . . . . . . . .......................... 42 

407. Variances . . . . . . . . . . . . . . . . . .................................... 42 

408. Enforcement . . . . . . . ........................ 42 

409- 499. [Reserved] . . . . . . . ............................... 42 

II 
SUBPART V- RESERVED (RADIONUCLIDES) 

500 - 599. [Reserved] .............. 42 

Ill 
THIS PAGE LEFT BLANK INTENTIONALLY 
TITLE 20 

CHAPTER2 

PART70 

NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD 

P. 0. BOX 26110/1190 ST. FRANCIS DRIVE 

SANTA FE, NEW MEXICO 87502-0110 

ENVIRONMENTAL PROTECTION 

AIR QUALITY (STATEWIDE) 

OPERATING PERMITS 

SUBPART I- GENERAL PROVISIONS 

100. ISSUING AGENCY: Environmental Improvement Board. [11-30-95] 

I 0 I. SCOPE: All persons who own or operate a major source or any other source required to 

obtain a permit under this Part. [ 11-30-95] 

102. STATUTORY AUTHORITY: Environmental Improvement Act, NMSA 1978, Section 

74-1-8(A)(4) and (7), and Air Quality Control Act, NMSA 1978, Sections 74-2-1 et seq .• 

including specifically, Section 74-2-5(A), (B), and (C) and (D). [11-30-95] 

I 03. DURATION: Permanent. [ 11-30-95] 

I 04. EFFECTIVE DATE: 11-30-95. [I 1-30-95] 

I 05. OBJECTIVE: The objective of this Part is to establish the requirements for obtaining an 

operating permit. [ 11-30-95] 

I 06. AMENDMENT AND SUPERSESSION OF PRIOR REGULATIONS: This Part 

amends and supersedes Air Quality Control Regulation ("AQCR") 770,- Operating Permits, filed 

November 15, 1993, as amended ("AQCR 770"). The original effective date of AQCR 770 was 

December 19, 1994, which was the effective date of approval, by the Administrator, of the New 

Mexico operating permit program. (See 59 FR 59656 [November 18, 1994]). [I 1-30-95] 

A. All references to AQCR 770 in any other rule shall be construed as a reference to 

this Part. [11-30-95) 

B. The amendment and supersession of AQCR 770 shall not affect any administrative 

or judicial enforcement action pending on the effective date of such amendment nor the validity of 

any permit issued pursuant to AQCR 770. [ 11-30-95] 

I 07 _ DEFINITIONS: In addition to the terms defined in Part 2 - Definitions, as used in this 

Part [ 11-30-95] 

20NMAC 2.70 11-14-98 
A. "Acid rain source" has the meaning given to "affected source" in the regulations 

promulgated under title IV of the Federal Act, and includes all sources subject to title IV of the 

Federal Act. [ 11-30-95) 

B. "Affected programs" means all States, local air pollution control programs, and 

Indian Tribes and Pueblos, that are within 50 miles of the source. [ 11-30-95) 

C. "Air pollutant" means an air pollution agent or combination of such 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. [ 11-30-95] 

E. "Applicable requirement" means all of the following, as they apply to emissions 

units 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): 

I. 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 of the Federal Act to implement the relevant requirements of the Federal Act, 

including any revisions to that plan promulgated in 40 CFR, 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 C or 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 Ill of the Federal Act. 

including section Ill( d); 

4. Any standard or other requirement under section 112 of the Federal Act, 

including any requirement concerning accident prevention under section 112(r)(7) of the Federal 

Act; 

20 NMAC 2.70 2 11-14-98 
5. Any standard or other requirement of the acid rain program under title IV 

of the Federal Act or the regulations promulgated thereunder; 

6. Any requirements established pursuant to section 504(b) or section 

114(a)(3) of the Federal Act; 

7. Any standard or other requirement governing solid waste incineration 

under section 129 of the Federal Act; 

8. Any standard or other requirement for consumer and commercial products 

under section 183(e) ofthe Federal Act; 

9. Any standard or other requirement for tank vessels under section 183(t) of 

the Federal Act; 

I 0. Any standard or other requirement of the regulations promulgated to 

protect stratospheric ozone under title VI of the Federal Act, unless the Administrator has 

determined that such requirements need not be contained in a title V permit; 

I I. Any national ambient air quality standard; 

12. Any increment or visibility requirement under part C of title I of the Federal 

Act, but only as it would apply to temporary sources permitted pursuant to section 504(e) of the 

Federal Act; and 

13. Any regulation adopted by the Board pursuant to the New Mexico Air 

Quality Control Act, §74-2-S.B NMSA 1978. [11-30-95] 

F. "CFR" means the Code of Federal Regulations. [11-30-95] 

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

public participation or affected program review. [11-30-95] 

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

or the Department, 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: 

I . 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 

20NMAC 2.70 3 11-14-98 
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. [ 11-30-95] 

K. "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) of the Federal Act. This term is not meant to alter or affect the definition of the term 

"unit" for purposes of title IV of the Federal Act. [11-30-95] 

L. "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. [11-30-95] 

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

Department that has met all review requirements of Subpart IV ofthis Part. [11-30-95] 

N. "Fugitive emissions" are those emissions which could not reasonably pass 

through a stack, chimney, vent, or other functionally-equivalent opening. [JJ-30-95] 

0. "General permit" means an operating permit that meets the requirements of 

Section 303 of this Part. [11-30-95] 

P. "Hazardous air pollutant" means an air contaminant that has been classified as a 

hazardous air pollutant pursuant to the Federal Act. [11-30-95) 

Q. "Insignificant activities" means those activities which have been listed by the 

Department and approved by the Administrator as insignificant on the basis of size, emissions or 

production rate. [ 11-30-95) 

R. "Major source" means any stationary source (or any group of stationary sources 

that are located on one or more contiguous or adjacent properties, and are under common control 

of the same person(s)) in which all of the 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 I, 2 or 3 below. [11-30-95) 

I. A major source under section 112 of the Federal Act, which is defined as: 

a. For pollutants other than radionuclides, any stationary source or 

group of stationary sources located within a contiguous area and under common control that 

20NMAC 2.70 4 11-14-98 
emits or has the potential to emit, in the aggregate, I 0 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 of such hazardous air pollutants (including any major source of 

fugitive 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. [11-30-95] 

b. For radionuclides, "major source" shall have the meaning specified 

by the Administrator by rule. [ 11-30-95] 

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

potential to emit, I 00 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 of stationary 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 of 

refuse per day; 

1. Hydrofluoric, sulfuric, or nitric acid plants; 

J. Petroleum refineries; 

k. Lime plants; 

20NMAC2.70 5 ll-14-98 
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; 

u. 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. Gl<!SS 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. All other stationary source categories regulated by a standard 

promulgated as of August 7, 1980, under the section Ill or 112 of the Federal Act, but only with 

respect to those air pollutants that have been regulated for that category. [11-30-95] 

3. A major stationary source as defined in part D oftitle I of the Federal Act, 

including: 

a. For ozone non-attainment areas, sources with the potential to emit 

I 00 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 

20 NMAC 2.70 6 11-14-98 
more per year in areas classified as "severe," and I 0 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)(I) or (2) ofthe Federal Act, that requirements under section 182(f) 

of the Federal Act do not apply; 

b. For ozone transport regions established pursuant to section 184 of 

the 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 (I) 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 (PM I 0) non-attainment areas classified as 

"serious," sources with the potential to emit 70 tons or more per year ofPMIO. [II-30-95] 

S. "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. [ 11-30-95] 

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

a facility. [11-30-95) 

u 

[ 11-30-95] 

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

V. "Part" means an air quality control regulation under Title 20, Chapter 2 of the 

New Mexico Administrative Code, unless otherwise noted; as adopted or amended by the Board. 

[ 11-30-95] 

W. "Part 70 source" means any source subject to the permitting requirements of this 

Part, as provided in Subpart II of this Part. [I 1-30-95] 

X. "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 defined in Section 404 of this Part. [II-30-95] 

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

70 source, as identified in any permit application or modification. [ 11-30-95] 

20NMAC 2.70 7 11-14-98 
Z. "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 of transporting the 

unit Portable sources may include sand and gravel plants, rock crushers, asphalt plants and 

concrete batch plants which meet this criteria. [I 1-30-95) 

AA. "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 com busted, stored, or 

processed, shall be treated as part of its design if the limitation is federally enforceable. The 

potential to emit for nitrogen dioxide shall be based on total oxides of nitrogen. [11-30-95) 

BB. "Proposed permit" means the version of a permit that the Department proposes 

to issue and forwards to the Administrator for review in compliance with Section 402 of this Part. 

[11-30-95) 

CC. "Regulated air pollutant" means the following: 

I. 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 

Ill of the Federal Act; 

4. Any Class I or 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 I 12 of the Federal Act, including sections 112(g), 

(j), and (r), including the following; 

a. any pollutant subject to requirements under section I 12(j) of the 

Federal Act. If the 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 I 12( e) of the Federal Act; and 

20NMAC 2.70 8 11-14-98 
b. any pollutant for which the requirements of section 112(g)(2) of the 

Federal Act have been met, but only with respect to the individual source subject to a section 

112(g)(2) requirement. [ 11-30-95] 

DD. "Renewal" means the process by which a permit is reissued at the end of its term. 

[I 1-30-95] 

EE. "Responsible official" means one of the following: 

I. For a corporation: a president, secretary, treasurer, or vice-president of the 

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 if the 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. [11-30-95] 

2. For a partnership or sole proprietorship: a general partner or the 

proprietor, respectively. [11-30-95] 

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

executive officer or ranking elected official. For the purposes of this 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 of the agency (e.g., a Regional Administrator of US 

EPA). [ 11-30-95] 

4. For an 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 of the Federal Act or the regulations promulgated thereunder are concerned, and for any 

other purposes under 40 CFR, Part 70. [11-30-95] 

FF. "Section 502(b)(IO) 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. [I 1-30-95] 

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

equipment, process equipment or process for any purpose. [ 11-30-95] 

1-D-1. "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 

20NMAC 2.70 9 11-14-98 
general public (including single and multiple residences, hotels, and motels). The term "solid 

waste incineration unit" does not include: 

I. 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 of recovering metals; 

3. QualifYing small power production facilities, as defined in section 3(17)(C) 

of the 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 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. 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. [JJ-30-95) 

II. "Startup" means the setting into operation of any air pollution control equipment. 

process equipment or process for any purpose. [I J-30-95) 

JJ. "Stationary source" or "source" means any building, structure, facility, or 

installation that emits or may emit any regulated air pollutant or any pollutant listed under section 

112(b) of the Federal Act. [11-30-95) 

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

partner of, the applicant or permittee. [ 11-30-95] 

LL. "Temporary Source" 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. [ 11-30-95] 

MM. "Title I Modification" means any modification under sections I I I 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 of the Federal Act. [11-30-95] 

20NMAC2.70 10 11-14-98 
I 08. DOCUMENTS: Documents cited in this Part may be viewed at the New Mexico 

Environment Department, Air Quality Bureau, Runnels Building, 1190 Saint Francis Drive. Santa 

Fe, NM 87505_ [11-30-95) 

109- 199. [RESERVED! 

SUBPART U- APPLICABILITY 

200. PART 70 SOURCES: Operating permits must be obtained from the Department for the 

following sources: 

A. Any major source; 

B. Any source, including an area source, subject to a standard or other requirement 

promulgated under section Ill - Standards of Performance for New Stationary Sources, or 

section 112- Hazardous Air Pollutants, of the Federal Act, but not including any source which: 

I. is exempted under Section 202.B of this Part; or 

2. would be required to obtain a permit solely because it is subject to 

regulations or requirements under section 112(r) of the Federal Act; 

C. Any acid rain source; and 

D. Any source in a source category so designated by the Administrator, in whole or in 

part, by regulation. after notice and comment. [ 11-30-95) 

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: 

I. 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 Section 300 of this Part_ The ability to operate under these circumstances shall 

cease if the applicant fails to submit by the deadline specified in writing by the Department any 

additional information identified as being needed to process the application. [11-30-95) 

B. Revocation or termination of a permit by the Department terminates the 

permittee's right to operate. [11-30-95) 

20NMAC 2.70 I I 11-14-98 
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 of the Federal Act or state regulations. [11-30-95] 

202. SOURCE CATEGORY EXEMPTIONS: 

A. The following source categories are exempted from the obligation to obtain an 

operating permit: 

I. All sources and source categories that would be required to obtain a permit 

solely because they are subject to 40 CFR Part 60, Subpart AAA - Standards of Performance for 

New Residential Wood Heaters; 

2. All sources and source categories that would be required to obtain a permit 

solely because they are subject to 40 CFR Part 61, Subpart M - National Emission Standard for 

Hazardous Air Pollutantsfor Asbestos, section 61.145, Standard for Demolition and Renovation; 

3. Except as required under Subpart V of this Part, any source that would be 

required to obtain a permit solely because of emissions of radionuclides; and 

4. Any source in a source category exempted by the Administrator, by 

regulation, after notice and comment. [11-30-95] 

B. Non-major sources, including those subject to sections Ill or 112 of the Federal 

Act, are exempt from the obligation to obtain a Part 70 permit until such time that the 

Administrator completes a rulemaking that requires such sources to obtain operating pennits. 

[ 11-30-95) 

C. Any source exempted from the requirement to obtain an operating permit may opt 

to apply for a permit under this Part. [ 11-30-95) 

D. No permit for a solid waste incineration unit shall be issued by the Department if a 

New Mexico state agency is responsible, in whole or in part, for the design and construction or 

operation of the unit. In such cases, applications shall be made to the Administrator. Department 

review or approval of solid waste incineration units shall not constitute responsibility for the 

design, construction, or operation of the unit. [I I-30-95) 

203. EXISTING MAJOR SOURCES WHICH ARE NOT REQUIRED TO HAVE A 

PERMIT UNDER PART 72- CONSTRUCTION PERMITS: [I I-30-95, I I-I9-97) 

A. The owner or operator of any major source may reverse or avoid designation as a 

major source under this Part by obtaining a permit under Part 72 which includes federally 

enforceable conditions which restrict the potential to emit of the source to non-major emission 

20 NMAC 2.70 I2 11-14-98 
rates. Such conditions may include emissions limitations, process restrictions and/or limitations, 

restrictions on annual hours of operation, or other conditions which reduce the facility's potential 

to· emit. [ 11-30-95, 11-19-97] 

B. [REPEALED) [11-30-95; R, 11-19-97] 

204. BERNALILLO COUNTY: For the operation of sources within Bernalillo County, the 

applicant shall make such applications to the Air Pollution Control Division of the Albuquerque 

Environmental Health Department or its _successor agency or authority. [ 11-30-95] 

205. INDIAN TRIBAL JURISDICTION: The requirements of this Part do not apply to 

sources within Indian Tribal jurisdiction. For the operation of sources in that jurisdiction, the 

applicant should make such applications to the Tribal Authority or to the Administrator. as 

appropriate. [ 11-30-95] 

206- 299. [RESERVED) 

SUBPART m - PERMIT REQUIREMENTS 

300. PERMIT APPLICATIONS: 

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. [ 11-30-95] 

B. Timely application. A timely application for a source applying for a permit under 

this Part is: 

I. 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, below; 

2. For purposes of permit renewal, one that is submitted at least twelve (12) 

months prior to the date of permit expiration. [11-30-95] 

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 I, 1996 for sulfur dioxide, and by January I. 

1998 for nitrogen oxides. [ 11-30-95] 

4. Transition schedule. A timely application for a Part 70 source which is in 

operation on or before December 19, 1995 is one that is submitted: 

20 NMAC 2.70 13 11-14-98 
a. For sources, except natural gas processing plants, which have been 

issued a permit, including a permit modification, pursuant to Parts 72, 74, or 79 on or after 

January I, 1987, by February 2, 1995, except that persons owning more than one source in this 

category may submit applications for half of their sources by February 2, 1995 and submit the 

remaining applications by March 19, 1995; 

b. For sources, except natural gas processing plants, which were 

issued a permit, including a permit modification, pursuant to Parts 72, 74, or 79 prior to January 

I, 1987, by June 19, 1995; 

c. For all other sources, by December 19, 1995; 

C. Completeness of Application. 

I. To be deemed complete, an application must provide all information 

required pursuant to Section 300.D of this Part, except that applications for permit modifications 

need supply such information only if it is related to the proposed change. [11-30-95] 

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 final action on that application, it may request such information in 

writing and set a reasonable deadline for a response. [11-30-95] 

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 of such 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. [11-30-95] 

4. The applicant's ability to operate without a permit, as set forth in Section 

20 l.A.2 of this Part, shalf 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 Department. [ 11-30-95] 

D. Content of Application. 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 of 

the 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 Part 71 -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 of sources contained in 

the definition of major source. AJI applications shall: [11-30-95] 

20NMAC 2.70 14 11-14-98 
I. Be made on forms furnished by the Department, 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 of the Federal Act; [ 11-30-95] 

2. State the company's name and address (and, if different, plant name and 

address), together with the names and addresses of the owner(s), responsible official and the 

operator of the 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 of the owners' agent(s) and 

the site contact(s) familiar with plant operations; [11-30-95] 

3. State the date of the application; [11-30-95] 

4. Include a description of the sources'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 Survey or the most detailed map available showing the exact location of 

the source. The location shall be identified by latitude and longitude or by UTM coordinates; 

[ 11-30-95] 

5. For all emissions of all air pollutants for which the source is major and all 

emissions of regulated air pollutants, provide all emissions information, calculations and 

computations for the source and for each emissions unit, except for insignificant activities (as 

defined in Section 107 of this Part). This shall include: 

a. A process flow sheet of all components of the 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 of requirements of the state and Federal Acts; 

c. Emissions 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. Specific 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. 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; 

20NMAC 2.70 15 I 1-14-98 
f. The maximum and standard operating schedules of the source, as 

well as any work practice standards or limitations on source operation which affect emissions of 

regulated pollutants; 

g. An operational plan defining the measures to be taken to mitigate 

source emissions during startups, shutdowns and emergencies; 

h. Other relevant information as the Department may reasonably 

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

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

i. For each alternative operating scenario identified by the applicant. 

all of the information required in (a) through (h) above, as well as additional information 

determined to be necessary by the Department to define such alternative operating scenarios; [11-

30-95, 11-14-98] 

6. Provide a list of insignificant activities (as defined in Section 107 of this 

Part) at the source, their emissions, to the extent required by the Department, and any information 

necessary to determine applicable requirements; [ 11-30-95] 

7. Provide a citation and description of all applicable air pollution control 

requirements, including: 

a. Sufficient information related to the emissions of regulated 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; [ 11-30-95] 

8. Provide an explanation of any proposed exemptions from otherwise 

applicable requirements; [ 11-30-95] 

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

enforce other requirements of the state or Federal Acts or to determine the applicability of such 

requirements, including information necessary to collect any permit fees owed under Part 71 -

Operating Permit Emission Fees; [11-30-95] 

I 0 For applications which are required under the transition schedule in Section 

300.8.4 of this Part, 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. 

20NMAC 2.70 16 11-14-98 
a. This requirement shall not apply to the following: 

(I) A Part 70 source issued a permit under Parts 72, 74, 79 

after January I, 1986; or 

(2) A Part 70 source subject to Parts 14, 16, 19, 31, 32 if no 

physical or operational modifications that have resulted in increased particulate matter, sulfur 

dioxide, or nitrogen oxide emissions have occurred since the time modeling was performed for 

that facility as part of revisions to those regulations. 

b. The Department may waive modeling with respect to ozone if the 

Department determines that emissions from the source are not likely to cause ozone 

concentrations in excess of the national ambient air quality standard. [11-30-95] 

II. Provide certification of compliance, including: 

a. A certification, by a responsible official consistent with Section 

JOO.E ofthis Part, of the source's compliance status for each applicable requirement; 

b. A statement of methods used for determining compliance, including 

a description of monitoring, record keeping, and reporting requirements and test methods; 

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 if specified by 

the underlying applicable requirement or by the Department; and 

e. A statement indicating the source's compliance status with any 

enhanced monitoring and compliance certification requirements of the Federal Act. [I 1-30-95] 

12. For sources that are not in compliance with all applicable requirements at 

the time of permit application, provide a compliance plan that contains: 

a. A description of the compliance status of the source with respect to 

all applicable requirements; 

b. A narrative description of how the source will achieve compliance 

with such requirements for which it is not in compliance; 

20NMAC 2.70 17 I 1-14-98 
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; and 

e. For the portion of each acid rain source subject to the acid rain 

provisions oftitle IV of the Federal Act, the compliance plan content requirements specified in 

this paragraph, except as specifically superseded by regulations promulgated under title IV of the 

Federal Act with regard to the schedule and method(s) the source will use to achieve compliance 

with the acid rain emissions limitations. [I 1-30-95) 

E. Certification. Any document, including any application form, report, or 

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

official of truth, 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] 

301. CONFIDENTIAL INFORMATION PROTECTION: 

A. All confidentiality claims made regarding material submitted to the Department 

under this Part shall be reviewed under the provisions of the New Mexico Air Quality Control Act 

§74-2-11 NMSA 1978 and the New Mexico Inspection ofPublic Records Act, §14-2-l, et seq. 

NMSA I 978. [I I -30-95] 

B. In the case where an applicant or permittee has submitted information to the 

Department under a claim of confidentiality, the Department may also require the applicant or 

permittee to submit a copy of such information directly to the Administrator. [11-30-95) 

C. An operating permit is a public record, and not entitled to protection under section 

114(c) ofthe Federal Act. [11-30-95] 

302. PERMIT CONTENT: 

A. Permit Conditions 

20 NMAC 2.70 18 11-14-98 
L 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: 

a. For major sources, include all applicable requirements for all 

relevant emissions units in the major source. (11-30-95] 

b. For any non-major source subject to Subpart II of this Part, include 

all applicable requirements which apply to emissions units that cause the source to be subject to 

this Part. [ 11-30-95] 

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 ofthe 

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 

Department consistent with the fee schedule in Part 71 - Operating Permit Emission Fees; and 

f For purposes of the 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. (11-30-95] 

2. Each permit issued shall, additionally, include provisions stating that: 

a. The permittee shall comply with all terms and conditions of the 

permit. Any permit noncompliance is grounds for enforcement action. In addition, 

noncompliance with federally enforceable permit conditions constitutes a violation of the Federal 

Act; 

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 of the permit; 

c. The permit may be modified, reopened and revised, revoked and 

reissued, or terminated for cause in accordance with Section 405 of this Part; 

19 11-14-98 
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; 

e. The permit does not convey any property rights of any sort. or any 

exclusive privilege; 

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 of records required by the permit to be maintained. [ 11-30-95, 11-14-98) 

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 of this Part. [11-30-95) 

4. The Department may impose conditions regulating emissions during startup 

and shutdown. [11-30-95] 

5. All permit terms and conditions which are required under the Federal Act 

or under any of its 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 of its applicable requirements. [ 11-30-95] 

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 of the Board, and any other applicable law or regulation. [ 11-30-95) 

7. The Department may include part or all of the contents of the application 

as terms and conditions of the 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. [11-30-95] 

20 NMAC 2.70 20 11-14-98 
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 of sources contained in the definition of major source. [11-30-95] 

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 of regulations promulgated under title IV of the 

Federal Act, both provisions shall be incorporated into the permit and shall be enforceable by the 

Administrator. [11-30-95] 

b. Contain a permit condition prohibiting emissions exceeding any 

allowances that the acid rain source lawfully 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. [11-30-95] 

B. Permit Duration. The Department shall issue operating permits for a fixed term 

of five (5) years. [I 1-30-95] 

C. Monitoring 

I. 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. [11-30-95] 

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 Section 302.E of this Part. Such monitoring requirements shall assure use 

of terms, test methods, units, averaging periods, and other statistical conventions consistent with 

the applicable requirement. [11-30-95] 

3. The permit shall also contain specific requirements concerning the use, 

maintenance, and, when appropriate, installation of monitoring equipment or methods. [ 11-30-

95] 

20NMAC 2.70 21 11-14-98 
D. Recordkeeping 

I. The permit shall require recordkeeping sufficient to assure and verifY 

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

a. The date, place as defined in the permit, and time of sampling 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 of such analyses; and 

f. 

measurement. [ 11-30-95] 

The operating conditions existing at the time of sampling or 

2. Records of all monitoring data and support information shall be retained 

for a period of at least five (5) years from the date of the 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. [11-30-95] 

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: 

I. Submittal of reports of any required monitoring at least every six (6) 

months. The reports shall be due to the Department within forty-five (45) days of the 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 Section 300.E of this Part; 

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 ofthe start of the next business day and written 

notification within ten (I 0) days; 

3. Submittal of compliance certification reports at least every twelve ( 12) 

months (or more frequently if so specified by an applicable requirement) certifYing the source's 

20NMAC 2.70 22 11-14-98 
compliance status with all permit terms and conditions and all applicable requirements relevant to 

the source, including those related to emission limitations or work practices. The reports shall be 

due to the Department within thirty (30} days of the end of the 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 of the permit that is the 

basis of the certification; 

b. The compliance status of the source; 

c. Whether compliance was continuous or intermittent; 

d. The method(s) used for determining the compliance status of the 

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 of the source; and 

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

determine the compliance status of the source. [11-30-95] 

F. Portable and Temporary Sources. 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: 

I. The source is installed at all locations in a manner conforming with the 

permit; 

2. The source shall comply with all applicable requirements and all other 

provisions of this 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. [11-30-95) 

20 NMAC 2.70 23 11-14-98 
G. Compliance. To assure and verifY compliance with the terms and conditions of 

the permit and with this Part, permits shall also: [Rn, 20 NMAC 2.70.302.G.I, 11-14-98} 

I. Require that, upon presentation of credentials and other documents as may 

be required by law, the permittee shall allow authorized representatives of the 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 of the 

permit; 

b. Have access to and copy any records that must be kept under the 

conditions of the 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. [11-30-95, 11-14-98] 

2. Require that sources required under Section 300.D.l2 of this Part 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 Section 300.0.12 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. [11-30-95] 

3. Include such other provisions as the Department may require. [ 11-30-95] 

H. Operational Flexibility. 

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

a. The permittee may make section 502(b )(I 0) changes, as defined in 

Subpart I of this Part, without applying for a permit modification, if those changes are not title I 

20NMAC 2.70 24 11-14-98 
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 of total emissions). [11-30-95] 

b. For each such change, the permittee shall provide written 

notification to the Department and the Administrator at least seven (7) days in advance of the 

proposed changes. Such notification shall include a brief description of the 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. [11-30-95) 

c. 

copy of the relevant permit. 

The permittee and Department shall attach each such notice to their 

[11-30-95) 

d. If the 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 of the permit remain fully enforceable. [11-30-95) 

2. Emissions trading within a facility 

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 Section 302 of this Part 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. [ 11-30-95] 

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. [ 1 I -30-

95] 

c. For each such change, the permittee shall provide written 

notification to the Department and the Administrator at least seven (7) days in advance of the 

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 of the permit. [11-30-95} 

d. The permittee and Department shall attach each such notice to their 

copy of the relevant permit. [ 11-30-95] 

20NMAC 2.70 25 I 1-14-98 
I. Off-Permit Changes. 

I. 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 permit term or condition; 

b. Such changes are not subject to any requirements under title IV of 

the Federal Act and are not title I modifications; 

c. Such changes are not subject to permit modification procedures 

under Section 404 of this Part; and 

d. The permittee provides contemporaneous written notice to the 

Department 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. [ 11-30-95] 

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. [ 11-30-95} 

1. Permit Shield. 

I. Except as provided in this Part, the Department shall expressly include in a 

Part 70 permit a provision stating that compliance with the conditions of the permit shall be 

deemed compliance with any applicable requirements as of the date of permit issuance. provided 

that: 

a. 

identified in the permit; or 

Such applicable requirements are included and are specifically 

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: 

[I 1-30-95] 

2. A Part 70 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. [ 11-30-95] 

20NMAC 2.70 26 I 1-14-98 
3. Nothing in this section or in any Part 70 permit shall alter or affect the 

following: 

a. The provisions of section 303 of the Federal Act- Emergency 

Powers, including the authority of the Administrator under that section. or the provisions of the 

New Mexico Air Quality Control Act, §74-2-1 0 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 of permit issuance; 

c. The applicable requirements of the acid rain program, consistent 

with section 408(a) of the Federal Act; or 

d. The ability of US EPA to obtain information from a source 

pursuant to section 114 of the Federal Act, or the Department to obtain information subject to the 

New Mexico Air Quality Control Act, §74-2-13 NMSA 1978. [ 11-30-95] 

4. The permit shield shall remain in effect if the permit terms and conditions 

are extended past the expiration date of the permit pursuant to Section 400.D of this Part. [11-

30-95] 

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 Section 302.H.2 

of this Part, and to all terms and conditions under each operating scenario included pursuant to 

Section 302.A.3 of this Part. [11-30-95] 

6. The permit shield shall not extend to administrative amendments under 

Section 404.A of this Part, to minor permit modifications under Section 404.B of this Part, to 

section 502(b)(IO) changes under Section 302.H.I of this Part, or to permit terms or conditions 

for which notice has been given to reopen or revoke all or part under Section 405 of this Part. 

[11-30-95] 

303. GENERAL PERMITS: 

A. Issuance of General Permits. 

I. The Department may, after notice and opportunity for public participation 

and US EPA and affected program review, issue a general permit covering numerous similar 

sources. Such sources shall be generally homogenous in terms of operations, processes and 

emissions, subject to the same or substantially similar requirements, and not subject to case-bycase standards or requirements. [ 11-30-95] 

20 NMAC 2.70 27 11-14-98 
2. Any general permit shall comply with all requirements applicable to other 

operating permits and shall identifY criteria by which sources may qualifY for the general permit. 

[I I -30-95] 

B. Authorization to Operate under a General Permit. 

I. The owner or operator of a Part 70 source which qualifies for a general 

permit must: 

a. Apply to the Department for coverage under the terms of the 

general permit; or 

b. Apply for an operating permit consistent with Section 300 of this 

Part. [I I -30-95] 

2. The Department may, in the general permit, provide for applications which 

deviate from the requirements of Section 300.D, provided that such applications meet the 

requirements of the Federal Act and include all information necessary to determine qualification 

for. and to assure compliance with, the general permit. The Department shall review the 

application for authorization to operate under a general permit for completeness within thirty (30) 

days after its receipt of the application. [I 1-30-95] 

3. The Department shall authorize qualifYing sources which apply for 

coverage under the general permit to operate under the terms and conditions of the general 

permit. The Department shall take final action on a general permit authorization request within 

ninety (90) days of deeming the application complete. (I I -30-95] 

4. The Department may grant a request for authorization to operate under a 

general permit without repeating the public participation procedures required under Section 40 I 

of this Part. Such an authorization shall not be a permitting action for purposes of administrative 

review under New Mexico Air Quality Control Act §74-2-7.H NMSA 1978. Permitting action 

for the purposes of §74-2-7 NMSA 1978 shall be the issuance of the general permit. [I I -30-95] 

5. Authorization to operate under a general permit shall not be granted for 

acid rain sources unless otherwise provided in regulations promulgated under title IV of the 

Federal Act. [11-30-95] 

6. The permittee shall be subject to enforcement action for operation without 

an operating permit if the source is later determined not to qualifY for the conditions and terms of 

the general permit. [I I -30-95] 

304. EMERGENCY PROVISION: 

20NMAC 2.70 28 11-14-98 
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. [11-30-95] 

B. An emergency constitutes an affirmative defense to an action brought for 

noncompliance with such technology-based emission limitations if the permittee has demonstrated 

through properly signed, contemporaneous operating logs, or other relevant evidence that: 

I. 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 Section 302.£.2 this 

Part. This notice must contain a description of the emergency, any steps taken to mitigate 

emissions, and corrective actions taken. [I I -30-95] 

C. In any enforcement proceeding, the permittee seeking to establish the occurrence 

of an emergency has the burden of proof (I I -30-95] 

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 subject to the provisions of Part 

7 - Exce~:~ Emissions during Malfunction, Startup, Shutdown, or Scheduled Maintenance for 

permit terms and conditions issued under Part 70. [I I -30-95] 

305- 399. fRESERVEDJ [I 1-30-95, I 1-14-98] 

SUBPART IV- PERMIT PROCESSING 

400. ACTION ON PERMIT APPLICATIONS: 

A. A permit (including permit renewal) or permit modification shall only be issued if 

all of the following conditions have been met: 

20NMAC 2.70 29 11-14-98 
I. The Department has received a complete application for a permit, permit 

modification, or permit renewal, except that a complete application need not be received before 

issuance of a general permit under Section 303 of this Part; 

2. Except for administrative and minor permit modifications, the Department 

has complied with the requirements for public participation procedures under Section 40 I of this 

Part; 

3. Except for administrative amendments, the Department has complied with 

the requirements for noti:f)ring and responding to affected programs under Section 402 of this 

Part; 

4. The conditions of the permit provide for compliance with all applicable 

requirements and the requirements of this Part; and 

5. The Administrator has received a copy of the proposed permit and any 

notices required under Section 402 of this Part, and has not objected to issuance of the permit 

within the time period specified within that section. [11-30-95] 

B. The Department shall, within sixty (60) days after its receipt of an application for a 

permit or significant permit modification, review such application for completeness. Unless the 

Department determines that an application is not complete, requests additional information or 

otherwise notifies the applicant of incompleteness within sixty (60) days of receipt of an 

application, the application shall be deemed complete. When additional information is requested 

by the Department prior to ruling an application complete, receipt of such information shall be 

processed as a new application for purposes of this section. If the application is judged complete, 

a certified letter to that effect shall be sent to the applicant. If the application is judged incomplete 

a certified letter shall be sent to the applicant stating what additional information or points of 

clarification are necessary to judge the application complete. [I 1-30-95] 

C. The Department shall take final action on each permit application (including a 

request for permit renewal) within eighteen (18) months after an application is ruled complete by 

the Department, except that: 

I. For sources in operation on or before December 19, 1994 and which 

submit to the Department timely and complete applications in accordance with Section 300 of this 

Part, the Department shall take final action on one third of such applications annually over a 

period not to exceed three (3) years after such effective date; 

2. Any complete permit application containing an early reduction 

demonstration under section 112(i)(5) of the Federal Act shall be acted on within nine (9) months 

of deeming the application complete; and 

20NMAC 2.70 30 11-14-98 
3. The acid rain portion of permits for acid rain sources shall be acted upon in 

accordance with the deadlines in title IV of the Federal Act and the regulations promulgated 

thereunder. [I 1-30-95] 

D. If a timely and complete application for a permit renewal is submitted. consistent 

with Section 300 of this Part, but the Department has failed to issue or disapprove the renewal 

permit before the end of the term of the previous permit, then the permit shall not expire and all 

the terms and conditions of the permit shall remain in effect until the renewal permit has been 

issued or disapproved. [11-30-95] 

E. Permits being renewed are subject to the same procedural requirements, including 

those for public participation. affected program and US EPA review, that apply to initial permit 

issuance. [ 11-30-95] 

F. The Department shall state within the draft permit the legal and factual basis for 

the draft permit conditions (including references to the applicable statutory or regulatory 

provisions). (11-30-95] 

G. The Department shall grant or disapprove the permit based on information 

contained in the Department's administrative record. The administrative record shall consist of 

the application, any additional information submitted by the applicant, any evidence or written 

comments submitted by interested persons, any other evidence considered by the Department, 

and, if a public hearing is held, the evidence submitted at the hearing. (11-30-95] 

H. If the Department grants or disapproves a permit or permit modification, the 

Department shall notify the applicant by certified mail of the action taken and the reasons therefor. 

If the Department grants a permit or modification, the Department shall mail the permit or 

modification, including all terms and conditions, to the applicant by certified mail. (11-30-95] 

I. Voluntary Discontinuation. Upon request by the permittee, the Department shall 

permanently discontinue a Part 70 permit. Permit discontinuance terminates the permittee's right 

to operate the source under the permit. The Department shall confirm the permit discontinuance 

by certified letter to the permittee. [ 11-30-95] 

J No permit shall be issued by failure of the Department to act on an application or 

renewal. [ 11-30-95] 

401. PUBLIC PARTICIPATION: 

A. Proceedings for all permit issuances (including renewals), significant permit 

modifications, reopenings, revocations and terminations, and all modifications to the Department's 

list of insignificant activities, shall include public notice and provide an opportunity for public 

comment. The Department shall provide thirty (30) days for public and affected program 

20 NMAC2.70 31 11-14-98 
comment. The Department may hold a public hearing on the draft permit, a proposal to suspend, 

reopen, revoke or terminate a permit, or for any reason it deems appropriate, and shall hold such a 

hearing in the event of significant public interest. The Department shall give notice of any public 

hearing at least thirty (30) days in advance of the hearing. [11-30-95] 

B. Public notice and notice of public hearing shall be given by publication in a 

newspaper of general circulation in the area where the source is located or in a state publication 

designed to give general public notice, to persons on a mailing list developed by the Department, 

including those who request in writing to be on the list, and by other means if necessary to assure 

adequate notice to the affected public. [ 11-30-95] 

C. The public notice shall identifY: 

I . The affected facility; 

2. The names and addresses of the applicant or permittee and its owners; 

3. The name and address of the Department; 

4. The activity or activities involved in the permit action; 

5. The emissions change(s) involved in any permit modification; 

6. The name, address and telephone number of a person from whom 

interested persons may obtain additional information, including copies of the permit draft, the 

application, and relevant supporting materials; 

7. A brief description of the comment procedures required by the Department; 

and 

8. As appropriate, a statement of procedures to request a hearing, or the time 

and place of any scheduled hearing. [ 11-30-95] 

D. Notice of public hearing shall identifY: 

I . The affected facility; 

2. The names and addresses of the applicant or permittee and its owners; 

3. The name and address of the Department; 

4. The activity or activities involved in the permit action; 

20NMAC 2.70 32 Il-14-98 
5. The name, address and telephone number of a person from whom 

interested persons may obtain additional information; 

6. A brief description of hearing procedures; and 

7. The time and place of the scheduled hearing. [I I -30-95] 

E. Public hearings shall be held in the geographic area likely to be impacted by the 

source. The time, date, and place of the hearing shall be determined by the Department. The 

Department shall appoint a hearing officer. A transcript of the hearing shall be made at the 

request of either the Department or the applicant and at the expense of the person requesting the 

transcript. At the hearing, all interested persons shall be given a reasonable chance to submit data, 

views or arguments orally or in writing and to examine witnesses testifying at the hearing. [ 11-

30-95] 

F. The Department shall keep a record of the commenters and also of the issues 

raised during the public participation process so that the Administrator may fulfill his or her 

obligation under section 505(b)(2) of the Federal Act to determine whether a citizen petition may 

be granted. Such records shall be available to the public upon request. [I 1-30-95] 

G. The Department shall provide such notice and opportunity for participation by 

affected programs as is provided for by Section 402 of this Part. [11-30-95] 

402. REVIEW BY THE ADMINISTRATOR AND AFFECTED PROGRAMS: 

A. Notification. The Department shall not issue an operating permit (including 

permit renewal or reissuance ), minor permit modification or significant permit modification, until 

affected programs and the Administrator have had an opportunity to review the proposed permit 

as required under this section. Permits for source categories waived by the Administrator from 

this requirement and any permit terms or conditions which are not required under the Federal Act 

or under any of its requirements are not subject to Administrator review or approval. [I I -30-95] 

I. Within five (5) days of notification by the Department that the application 

has been determined complete, the applicant shall provide a copy of the complete permit 

application (including the compliance plan and all additional materials submitted to the 

Department) directly to the Administrator. The permit or permit modification shall not be issued 

without certification to the Department of such notification The Department shall provide to the 

Administrator a copy of each draft permit, each proposed permit, each final operating permit, and 

any other relevant information requested by the Administrator. [I 1-30-95] 

2. The Department shall provide notice of each draft permit to any affected 

program on or before the time that the Department provides this notice to the public under 

20NMAC 2.70 33 11-14-98 
Section 40 I of this Part, except to the extent that minor permit modification procedures require 

the timing of the notice to be different. [11-30-95] 

3. The Department shall keep for five (5) years such records and submit to the 

Administrator such information as the Administrator may reasonably require to ascertain whether 

the state program complies with the requirements of the Federal Act or related applicable 

requirements. [11-30-95] 

B. Responses to Objections. 

I. No permit for which an application must be transmitted to the 

Administrator under this Part shall be issued by the Department if the Administrator, after 

determining that issuance of the proposed permit would not be in compliance with applicable 

requirements, objects to such issuance in writing within forty-five (45) days of receipt of the 

proposed permit and all necessary supporting information. [ 11-30-95] 

2. If the Administrator does not object in writing under paragraph B. I above, 

any person may, within sixty (60) days after the expiration ofthe Administrator's 45-day review 

period, petition the Administrator to make such objection. Any such petition shall be based only 

on objections to the permit that were raised with reasonable specificity during the public comment 

period provided for in Section 40 I of this Part, unless the petitioner demonstrates that it was 

impracticable to raise such objections within such period, or unless the grounds for such objection 

arose after such period. If the Administrator objects to the permit as a result of a petition filed 

under this paragraph, the Department shall not issue the permit until the Administrator's objection 

has been resolved, except that a petition for review does not stay the effectiveness of a permit or 

its requirements if the permit was issued after the end of the 45-day review period and prior to the 

Administrator's objection. [11-30-95] 

3 . The Department, as part of the submittal of the proposed permit to the 

Administrator (or as soon as possible after the submittal for minor permit modification procedures 

allowed under Section 404.B of this Part), shall notify the Administrator and any affected 

program in writing of any refusal by the Department to accept all recommendations for the 

proposed permit that the affected program submitted during the public or affected program 

review period. The notice shall include the Department's reasons for not accepting any such 

recommendation. The Department is not required to accept recommendations that are not based 

on federally enforceable applicable requirements. [ 11-30-95] 

403. PETITIONS FOR REVIEW OF FINAL ACTION: 

A. Hearing Before the Board. 

I . Any person who participated in a permitting action before the Department 

and who is adversely affected by such permitting action may file a petition for hearing before the 

20NMAC2.70 34 11-14-98 
Board. For the purposes of this section, permitting action shall include the failure of the 

Department to take final action on an application for a permit (including renewal) or permit 

modification within the time specified in this Part. 

2. The petition shall be made in writing to the Board within thirty (30) days from 

the date notice is given of the Department's action and shall specifY the portions of the permitting 

action to which the petitioner objects, certifY that a copy of the petition has been mailed or handdelivered as required by this paragraph, and attach a copy of the permitting action for which 

review is sought. Unless a timely request for hearing is made, the decision of the Department 

shall be final. The petition shall be copied simultaneously to the Department upon receipt of the 

appeal notice. If the petitioner is not the applicant or permittee, the petitioner shall mail or handdeliver a copy of the petition to the applicant or permittee. The Department shall certifY the 

administrative record to the Board. [ 11-30-95] 

3. If a timely request for hearing is made, the Board shall hold a hearing 

within ninety (90) days of receipt of the petition in accordance with New Mexico Air Quality 

Control Act §74-2-7 NMSA I 978. [I I -30-95] 

B. Judicial Review. 

I . Any person who is adversely affected by an administrative action taken by 

the Board pursuant to Section 403 .. A may appeal to the Court of Appeals in accordance with 

New Mexico Air Quality Control Act §74-2-9 NMSA I 978. Petitions for judicial review must be 

filed no later than thirty (30) days after the administrative action. [I I -30-95] 

2. The judicial review provided for by Section 403 shall be the exclusive means 

for obtaining judicial review of the terms and conditions of the permit. [11-30-95] 

404. PERMIT MODIFICATIONS: 

A. Administrative Permit Amendments. 

I. An administrative permit amendment is one that 

a. Corrects typographical errors; 

b. Provides for a minor administrative change at the source, such as a 

change in the address or phone number of any person identified in the permit; 

c. Incorporates a change in the permit solely involving the retiring of 

an emissions unit; 

20NMAC 2.70 35 11-14-98 
d. Requires more frequent monitoring or reporting by the permittee; 

or 

e. Any other type of change which has been determined by the 

Department and the Administrator to be similar to those in this paragraph. [11-30-95] 

2. Changes in ownership or operational control of a source may be made as 

administrative amendments provided that: 

a. A written agreement, containing a specific date for transfer of 

permit responsibility, coverage, and liability between the current and new permittee, has been 

submitted to the Department, and either the Department has determined that no other change in 

the permit is necessary, or changes deemed necessary by the Department have been made; 

b. The new owners have submitted the application information 

required in Section 300.D.2 of this Part; 

c. No grounds exist for permit termination, as set out in Section 

405.A.3. band c of this Part; and 

d. The permittee has published a public notice of the change in 

ownership of the source in a newspaper of general circulation in the area where the source is 

located. [11-30-95] 

3. The Department may incorporate administrative permit amendments 

without providing notice to the public or affected programs, provided that it designates any such 

permit modifications as administrative permit amendments and submits a copy of the revised 

permit to the Administrator. [I 1-30-95] 

4. The Department shall take no more than sixty (60) days from receipt of a 

request for an administrative permit amendment to take final action on such request. The 

permittee may implement the changes outlined in a through d of subsection A. I above 

immediately upon submittal of the request for the administrative amendment. The permittee may 

implement the changes outlined in subsection A. I.e or A.2 above upon approval of the 

administrative amendment by the Department. [ 11-30-95] 

B. Minor Permit Modifications. 

I. Minor permit modification procedures may be used only for those permit 

modifications that: 

a. Do not violate any applicable requirement; 

20NMAC2.70 36 11-14-98 
b. Do not involve relaxation of existing monitoring, reporting, or 

recordkeeping requirements in the permit; 

c. Do not require or change a case-by-case determination of an 

emission limitation or other standard, or a source-specific determination for temporary sources of 

ambient impacts, or a visibility or increment analysis; 

d. Do not seek to establish or change a permit term or condition for 

which there is no corresponding underlying applicable requirement and that the permittee has 

assumed to avoid an applicable requirement to which the source would otherwise be subject. 

Such terms and conditions include any federally enforceable emissions cap assumed to avoid 

classification as a title I modification and any alternative emissions limit approved pursuant to 

regulations promulgated under section 112(i)( 5) of the Federal Act; 

e. Are not title I modifications; and 

f. Are not required by the Department to be processed as a significant 

modification pursuant to Section 404.C of this Part. [I 1-30-95] 

2. A permittee shall not submit multiple minor permit modification 

applications that may conceal a larger modification that would not be eligible for minor permit 

modification procedures. The Department may, at its discretion, require that multiple related 

minor permit modification applications be submitted as a significant permit modification. [ 11-30-

95] 

3. An application requesting the use of minor permit modification procedures 

shall meet the requirements of Section 300.C and Section 300.D of this Part and shall include: 

a. A description of the change, the emissions resulting from the 

change, and any new applicable requirements that will apply if the change occurs; 

b. · The applicant's suggested draft permit; 

c. Certification by a responsible official, consistent with Section 300.E 

of this Part, that the proposed modification meets the criteria for use of minor permit modification 

procedures and a request that such procedures be used; and 

d. If the requested permit modification would affect existing 

compliance plans or schedules, related progress reports, or certification of compliance 

requirements, an outline of such effects. [11-30-95] 

4. The Department shall, within thirty (30) days after its recdpt of an 

application for a minor permit modification, review such application for completeness. Unless the 

20 NMAC2.70 37 11-14-98 
Department determines that an application is not complete, requests additional information or 

otherwise notifies the applicant of incompleteness within thirty (30) days of receipt of an 

application, the application shall be deemed complete. If the application is judged complete, a 

certified letter to that effect shall be sent to the applicant. If the application is judged incomplete a 

certified letter shall be sent to the applicant stating what additional information or points of 

clarification are necessary to judge the application complete. [JJ-30-95] 

5. Within five ( 5) working days of notification by the Department that the 

minor permit modification application has been determined complete, the applicant shall meet its 

obligation under Section 402.A of this Part to notifY the Administrator of the requested permit 

modification. The Department promptly shall send any notice required under Sections 402.A.2 

and 402.8 ofthis Part to the Administrator and affected programs. [11-30-95] 

6. The permittee may make the change proposed in its minor permit 

modification application immediately after such application is deemed complete. After the 

permittee makes the change allowed by the preceding sentence, and until the Department takes 

any of the actions specified in paragraph 8.7 below, the permittee must comply with both the 

applicable requirements governing the change and the proposed permit terms and conditions. 

During this time period, the permittee need not comply with the existing permit terms and 

conditions it seeks to modizy. If the permittee fails to comply with its proposed permit terms and 

conditions during this time period, the existing permit terms and conditions it seeks to modify may 

be enforced against it. [11-30-95] 

7. The Department may not issue a final minor permit modification until after 

the Administrator's 45-day review period of the proposed permit modification or until US EPA 

has notified the Department that the Administrator will not object to issuance of the permit 

modification, although the Department may approve the permit modification prior to that time. 

Within ninety (90) days of ruling the application complete under minor permit modification 

procedures or within fifteen (IS) days after the end of the Administrator's 45-day review period, 

whichever is later, the Department shall: 

a. Issue the permit modification as it was proposed; 

b. Disapprove the permit modification application; 

c. Determine that the requested modification does not meet the minor 

permit modification criteria and should be reviewed under the significant modification procedures; 

or 

d. Revise the draft permit modification and transmit to the 

Administrator the new proposed permit modification as required by Section 402.A of this Part. 

[11-30-95] 

20NMAC 2.70 38 11-14-98 
C. Significant Permit Modifications. 

I. A significant permit modification is: 

a. Any revision to an operating permit that does not meet the criteria 

under the provisions for administrative permit amendments under Section 404.A or for minor 

permit modifications under Section 404.B above; 

b. Any modification that would result in any relaxation in existing 

monitoring, reporting or recordkeeping permit terms or conditions; 

c. Any modification for which action on the application would, in the 

judgement of the Department, require decisions to be made on significant or complex issues; and 

d. Changes in ownership which do not meet the criteria of Section 

404A2 of this Part. [11-30-95) 

2. For significant modifications which are not required to undergo 

preconstruction permit review and approval, changes to the source which qualify as significant 

permit modifications shall not be made until the Department has issued the operating permit 

modification. [ 11-30-95) 

3. For significant modifications which have undergone preconstruction permit 

review and approval, the permittee shall: 

a. Before commencing operation, notify the Department in writing of 

any applicable requirements and operating permit terms and conditions contravened by the 

modification, emissions units affected by the change, and allowable emissions increases resulting 

from the modification; and 

b. Within twelve ( 12) months after commencing operation, file a 

complete operating permit modification application. [ 11-30-95) 

4. Where an existing operating permit would specifically prohibit such 

change, the permittee must obtain an operating permit modification before commencing operation 

or implementing the change. [ 11-30-95) 

5. Significant permit modifications shall meet all requirements of this Part for 

permit issuance, including those for applications, public participation, review by affected 

programs and review by the Administrator. [ 11-30-95) 

20 NMAC 2.70 39 11-14-98 
6. The Department shall complete review on the majority of significant permit 

modification applications within nine (9) months after the Department rules the applications 

complete. [11-30-95] 

D. Modifications to Acid Rain Sources. Administrative permit amendments and 

permit modifications for purposes of the acid rain portion of the permit shall be governed by 

regulations promulgated by the Administrator under title IV of the Federal Act. [11-30-95] 

405. PERMIT REOPENING, REVOCATION OR TERMINATION: 

A. Action by the Department. 

I. Each permit shall include provisions specifYing the conditions under which 

the permit will be reopened prior to the expiration of the permit. A permit shall be reopened and 

revised for any of the following, and may be revoked and reissued for c or d of the following: 

a. Additional applicable requirements under the Federal Act become 

applicable to a major source with a remaining permit term of three (3) or more years. Such a 

reopening shall be completed not later than eighteen (18) months after promulgation of the 

applicable requirement. No such reopening is required if the effective date of the requirement is 

later than the date on which the permit is due to expire, unless the original permit or any of its 

terms or conditions have been extended past the expiration date of the permit pursuant to Section 

400.0 of this Part; 

b. Additional requirements (including excess emissions requirements) 

become applicable to a source under the acid rain program promulgated under title IV of the 

Federal Act. Upon approval by the Administrator, excess emissions offset plans shall be deemed 

to be incorporated into the permit; 

c. The Department or the Administrator determines that the permit 

contains a material mistake or that inaccurate statements were made in establishing the terms or 

conditions of the permit; or 

d. The Department or the Administrator determines that the permit 

must be revised or revoked and reissued to assure compliance with the applicable requirements. 

[11-30-95] 

2. Proceedings to reopen and revise, or revoke and reissue, a permit shall 

affect only those parts of the permit for which cause to reopen or revoke exists. Units for which 

permit conditions have been revoked shall not be operated until permit reissuance. Reopenings 

shall be made as expeditiously as practicable. [ 11-30-95] 

20NMAC 2.70 40 11-14-98 
3. A permit, or an authorization to operate under a general permit, may be 

terminated when: 

a. The permittee fails to meet the requirements of an approved 

compliance plan; 

b. The permittee has been in significant or repetitious non-compliance 

with the operating permit terms or conditions; 

c. The applicant or permittee has exhibited a history of willful 

disregard for environmental laws of any state or Tribal authority, or of the United States; 

d. The applicant or permittee has knowingly misrepresented a material 

fact in any application, record, report, plan, or other document filed or required to be maintained 

under the permit; 

e. The permittee falsifies, tampers with or renders inaccurate any 

monitoring device or method required to be maintained under the permit; 

f. The permittee fails to pay fees required under the fee schedule in 

Part 71 -Operating Permit Emission Fees; or 

g. The Administrator has found that cause exists to terminate the 

permit. [ 11-30-95] 

4. The Department shall, by certified mail, provide a notice of intent to the 

permittee at least thirty (30) days in advance of the date on which a permit is to be reopened or 

revoked, or terminated, except that the Department may provide a shorter time period in the case 

of an emergency. The notice shall state that the permittee may, within 30 (thirty) days of receipt, 

submit comments or request a hearing on the proposed permit action. [ 11-30-95] 

B. Action by the Administrator. Within ninety (90) days, or longer if the 

Administrator extends this period, after receipt of written notification that the Administrator has 

found that cause exists to terminate, modiry or revoke and reissue a permit, the Department shall 

forward to the Administrator a proposed determination of termination, modification, or 

revocation and reissuance, as appropriate. Within ninety (90) days from receipt of an 

Administrator objection to a proposed determination, the Department shall address and act upon 

the Administrator's objection. [ 11-30-95] 

C. Compliance Orders. Notwithstanding any action which may be taken by the 

Department or the Administrator under Section 405.A and Section 405.8 of this Part, a 

compliance order issued pursuant to New Mexico Air Quality Control Act §74-2-12 NMSA 1978 

may include a suspension or revocation of any permit or portion thereof. [I 1-30-95] 

20 NMAC 2.70 41 11-14-98 
406. CITIZEN SUITS: Pursuant to section 304 of the Federal Act, 42 USC 7604, any person 

may commence certain civil actions under the Federal Act. [11-30-95) 

407. VARIANCES: Pursuant to New Mexico Air Quality Control Act §74-2-8 NMSA 1978. 

applicants and permittees may seek a variance from the non-federally enforceable provisions of 

this Part. [11-30-95] 

408. ENFORCEMENT: Notwithstanding any other provision in the New Mexico State 

Implementation Plan approved by the Administrator. any credible evidence may be used for the 

purpose of establishing whether a person has violated or is in violation of the terms or conditions 

of a permit issued pursuant to this Part. [11-30-95] 

A. Information from the use of the following methods is presumptively credible 

evidence of whether a violation has occurred at the source: 

I. A monitoring or information gathering method approved for the source 

pursuant to this Part and incorporated in an operating permit; or 

2. Compliance methods specified in the New Mexico State Implementation 

Plan. [I 1-30-95] 

B. The following testing. monitoring or information gathering methods are 

presumptively credible testing, monitoring or information gathering methods: 

I. Any federally enforceable monitoring or testing methods. including those in 

40 CFR parts 51. 60. 61 and 75; and 

2. Other testing, monitoring or information gathering methods that produce 

information comparable to that produced by any method under Sections 408.A or 408.8.1 of this 

Part. [ 11-30-95) 

409- 499. (RESERVED( 

SUBPART V- RESERVED (RADIONUCLIDES) 

500- 599. (RESERVED) 

20NMAC 2.70 42 11-14-98 
ATTACHMENT C 

CORRECTIONS TO 20 NMAC 2.72 

Incorrect text to be deleted is shown in strikeout text (deleted text); corrected text to be inserted is 

shown with double underline (inserted text). 

AQCR 702.1I.K (prior to reformatting) 

K. Permit Conditions 

I. The contents of the application specifically identified by the division shall become 

terms and conditions of the permit or permit revision. 

2. The division shall, as appropriate, specify conditions upon a permit, including: 

a placement of individual emission limits determined on a case-by-case basis 

on the source for which the permit is issued, but such individual emission limits shall be only as 

restrictive as the more stringent of the following: 

(i) the extent necessary to meet the requirements of the Air Quality 

Control Act and the federal Clean Air Act; or 

(ii) the emission rate specified in the permit application; 

b. a requirement that such source install and operate control technology, 

determined on a case-by-case basis, sufficient to meet the. requirements of the Air Quality Control Act 

and the federal Clean Air Act and regulations promulgated under either; 

c. compliance with applicable NSPS and NESHAP; 

d. imposition of reasonable restrictions and limitations other than restrictions and 

limitations relating to emission limits or emission rates; or 

e. any combination of the above. 

In the case of a modification, the requirements of this section apply only to the facility or facilities 

involved in such modification. 

3. The division may impose such other reasonable conditions upon a permit, including a 

schedule of construction, a condition requiring timely revision of permit terms or conditions in order to 

meet new requirements, if any, under any federally required and approved State Implementation Plan 

revision, and conditions requiring the source to be provided with or to undertake: · 

a. sampling ports of a size, number and location as the division may require; 

ATIACHMENTC Page C-1 

20 NMAC 2.72 Proposed Corrections 
b. safe access to each port; 

c. instrumentation to monitor and record emission data including continuous 

emission monitoring, if appropriate; 

d. any other reasonable sampling, testing and ambient monitoring and 

meteorological facilities and protocols; and 

e. periodic testing pursuant to Part Two, Section N. 

4. Any term or condition imposed by the division on a permit or permit revision is 

enforceable to the same extent as a regulation of the board. 

5. The division will as a condition of each permit require the permittee to establish and 

maintain such records of the nature and amount of emissions and to make such periodic reports to the 

division regarding the nature and amounts of emissions and the performance of air pollution control 

equipment, as are necessary to carry out the purpose of the Air Quality Control Act. 

ATIACHMENTC Page C-2 

20 NMAC 2.72 Proposed Corrections 
20 NMAC 2.72.210 (formerly AQCR 702JI.K) 

210. PERMIT CONDITIONS: 

A. The contents of the application specifically identified by the Department shall become 

terms and conditions of the permit or permit revision. [11-30-95] 

B. The Department shall, as appropriate, specify conditions upon a permit, including: 

I. Placement of individual emission limits determined on a case-by-case basis 

on the source for which the permit is issued, but such individual emission limits shall be only as 

restrictive as the more stringent of the following: 

a. The extent necessary to meet the requirements of the Air Quality 

Control Act and the Federal Act; or 

b. The emission rate specified in the permit application; 

2. A requirement that such source install and operate control technology, 

determined on a case-by-case basis, sufficient to meet the requirements of the Air Quality Control Act 

and the Federal Act and regulations promulgated under either; 

3. Compliance with applicable NSPS and NESHAP; 

4. Imposition of reasonable restrictions and limitations other than restrictions 

and limitations relating to emission limits or emission rates; or 

5. Any combination of the above; ,Ill 3() 93] 

G.. 6 In the case of a modification, the requirements of this S§ection (21 0 B) apply 

only to the facility or facilities involved in such modification. [11-30-95] 

I>!:;. The Department may impose such other reasonable conditions upon a permit, 

including a schedule of construction, a condition requiring timely revision of permit terms or conditions 

in order to meet new requirements, if any, under any federally required and approved State 

Implementation Plan revision, and conditions requiring the source to be provided with or to undertake: 

1. Sampling ports of a size, number and location as the Department may 

reqwre; 

2. Safe access to each port; 

3. Instrumentation to monitor and record emission data including continuous 

emission monitoring, if appropriate; 

4. Any other reasonable sampling, testing and ambient monitoring and 

meteorological facilities and protocols; and 

AITACHMENT C Page C-3 

20 NMAC 2. 72 Proposed Corrections 
5. Periodic testing pursuant to Section 213. [11-30-95] 

EQ. Any term or condition imposed by the Department on a permit or permit revision is 

enforceable to the same extent as a regulation of the board. [11-30-95] 

Ff;. The Department will as a condition of each permit require the permittee to establish 

and maintain such records of the nature and amount of emissions and to make such periodic reports to 

the Department regarding the nature and amounts of emissions and the performance of air pollution 

control equipment, as are necessary to carry out the purpose of the Air Quality Control Act. [II-3 0-

95] 

ATTACHMENT C Page C-4 

20 NMAC 2. 72 Proposed Corrections 
AQCR 702.IVA5 (prior to reformatting) 

5. "Potential to emit" or "potential emissions" means the maximum capacity of a 

stationary source to emit a regulated air contaminant under its physical and operational design. Any 

physical or operational limitation on the capacity of the source to emit a regulated air contaminant, 

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

amount of material com busted, stored, or processed, shall be treated as part of its design if the 

limitations or the effect it would have on emissions is federally enforceable. Secondary emissions do 

not count in determining the potential to emit of a stationary source. 

20 NMAC 2.72.300.E (formerly AQCR 702.IV.A.5) 

E. "Potential to emit" or "potential emissions" means the maximum capacity of a 

stationary source to emit a regulated air contaminant under its physical and operational design. Any 

physical or operational limitation on the capacity of the source to emit a regulated air contaminant, 

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

amount of material combusted, stored, or processed, shall be treated as l!m:1 of its design if the 

limitations or the effect it would have on emissions is federally enforceable. Secondary emissions do 

not count in determining the potential to emit of a stationary source. [11-30-95] 

ATTACHMENT C Page C-5 

20 NMAC 2. 72 Proposed Corrections 
AQCR 702.1ll.F (prior to reformatting) 

F. Permit Decisions 

In making its decisions, the division shall consider emissions after control. 

I. Ambient concentration not exceeding one-one hundredth of the OEL or the 

minimum detection level for compounds without an OEL. 

If the division finds that the eight-hour average concentration of the toxic air 

pollutant in the ambient air does not exceed one-one hundredth of the OEL, or for compounds without 

an OEL, the minimum detection levels as shown in Appendix A, the division shall grant the permit. 

The administrative screening level of one-one hundredth the OEL and the OEL shall not be a basis for 

denying a permit and shall not constitute an ambient air quality standard. 

2. Ambient concentration exceeding one-one hundredth of the OEL or the 

minimum detection level for compounds without an OEL for substances identified as known or 

suspected human carcinogens in Appendix A. 

If the toxic air pollutant being considered is identified as a known or 

suspected carcinogen in Appendix A, Table A-2, and the division finds the eight-hour concentration of 

the toxic air pollutant in the ambient air exceeds one-one hundredth of the OEL, or for compounds 

without an OEL, the minimum detection level, the division shall grant the permit if the applicant 

implements the best available control technology to control that pollutant. 

3. Ambient concentration exceeding one-one hundredth of the OEL for 

substances not identified as carcinogens in Appendix A. 

a If the applicant has been required to prepare a health assessment 

under Part Ill, Section 0.2, the division shall prepare a Summary Review Statement (SRS) which 

indicates the division's opinion of the adequacy of the applicant's health assessment. The SRS will 

include a summary recommendation on whether the issuance of a permit will or will not with 

reasonable probability injure human health. 

b. If the applicant does not agree with the recommendation contained in 

the SRS, the applicant's assessment and the SRS will be provided to the Air Toxics Scientific Advisory 

Committee (ATSAC). The ATSAC will be composed of five members appointed by the director. 

They will include physicians, toxicologists, industrial hygienists, or others knowledgeable of the 

potential health and environmental effects of air pollution. The committee will include at least one 

member nominated by the applicant. The ATSAC will review the applicant's assessment and the SRS 

in a public meeting. The ATSAC shall provide a letter to the director stating: (I) whether the 

submitted documents provide a scientifically adequate basis to determine whether the proposed source 

will with reasonable probability injure human health and (2), if the documents do provide an adequate 

basis, whether the proposed source will with reasonable probability injure human health. If the 

documents are scientifically inadequate, the ATSAC shall return them to the division and indicate their 

inadequacies. 

ATTACHMENT C PageC-6 

20 NMAC 2.72 Proposed Corrections 
c. The division will make a final decision on the issuance of the permit 

after consideration of the following factors: 

(i) the nature of the toxic air pollutant and the size, susceptibility, 

and proximity of the human population; 

(ii) the pathways of human exposure (e.g., ingestion, inhalation, 

skin absorption); 

(iii) the short term and long term health effects associated with the 

toxic air pollutant at levels of exposure commensurate with the anticipated exposure level; 

(iv) existing epidemiological data on health effects associated 

with the anticipated levels of exposure; 

(v) the character of the land use of the predicted area of impact 

(e.g., residential, industrial, and recreational). 

(vi) the scientific adequacy of the health and environmental 

assessment submitted by the applicant and the recommendation of the ATSAC. The division shall not 

rely on the OEL or on the administrative screening level of one-one hundredth the OEL, and it shall not 

be bound by prior permit decisions when considering pending applications. 

d. The division shall deny any application for a permit evaluated under 

Part ill, Section F.3 if the source will emit atoxic air pollutant in such quantities and duration as may 

with reasonable probability injure human health. 

4. The division shall document, in tile administrative record, all processes, facts, 

and reasoning relied on in making the permit decision, including citations to the relevant technical data, 

publications, and expert opinions considered. 

(i) The final deliberations of the ATSAC shall be open to the 

public. Except for requests by members of the ATSAC for input from the applicant or division, no 

other comments from the applicant, division, or audience shall be allowed during final deliberations. 

(ii) Prior to a final decision, the ATSAC members may 

communicate among themselves in order to facilitate the evaluation process. However, all ATSAC 

members shall be apprised of such communications. 

(iii) Priorto a final decision, the ATSAC members may also 

communicate with the division and applicant in order to clarify information or secure additional 

information concerning the applicant's health assessment or the division's SRS. The division, 

applicant, and all ATSAC members shall be apprised of such communication. 

ATTACHMENT C 

20 NMAC 2. 72 Proposed Corrections 

Page C-7 
20 NMAC 2. 72.405 (formerly AQCR 702.ill.F) 

405. PERMIT DECISIONS: In making its decisions, the Department shall consider emissions 

after control. [ll-30-95) 

A. Ambient concentrations not exceeding one-one hundredth of the OEL or the 

minimum detection level for compounds without an OEL: 

If the Department finds that the eight-hour average concentration of the toxic air 

pollutant in the ambient air does not exceed one-one hundredth of the OEL, or for compounds without 

an OEL, the minimum detection levels as shown in Section 502, the Department shall grant the permit. 

The administrative screening level of one-one hundredth the OEL and the OEL shall not be a basis for 

denying a permit and shall not constitute an ambient air quality standard. [ll-30-95) 

B. Ambient concentrations exceeding one-one hundredth of the OEL or the minimum 

detection level for compounds without an OEL for substances identified as known or suspected human 

carcinogens in Section 502: 

If the toxic air pollutant being considered is identified as a known or suspected 

carcinogen in Section 502, Table B, and the Department finds the eight-hour concentration of the toxic 

air pollutant in the ambient air exceeds one-one hundredth of the OEL, or for compounds without an 

OEL, the minimum detection level, the Department shall grant the permit if the applicant implements 

the best available control technology to control that pollutant. [ll-30-95) 

C. Ambient concentrations exceeding one-one hundredth of the OEL for substances not 

identified as carcinogens in Section 502: 

I. If the applicant has been required to prepare a health assessment under 

Section 403.B, the Department shall prepare a Sununary Review Statement (SRS) which indicates the 

Department's opinion of the adequacy of the applicant's health assessment. The SRS will include a 

sununazy recommendation on whether the issuance of a permit will or will not with reasonable 

probability injure human health. 

2. If the applicant does not agree with the recommendation contained in the 

SRS, the applicant's assessment and the SRS will be provided to the Air Toxics Scientific AdvisorY 

Committee (ATSAC). The ATSAC will be composed of five members appointed by the Secretary. 

They will include physicians, toxicologists, industrial hygienists, or others knowledgeable of the 

potential health and environmental effects of air pollution. The committee will include at least one 

member nominated by the applicant. The ATSAC will review the applicant's assessment and the SRS 

in a public meeting. The ATSAC shall provide a letter to the Secretary stating: (I) whether the 

submitted documents provide a scientifically adequate basis to determine whether the proposed source 

will with reasonable probability injure human health and (2), if the documents do provide an adequate 

basis, whether the proposed source will with reasonable probability injure human health If the 

documents are scientifically inadequate, the ATSAC shall return them to the Department and indicate 

their inadequacies. 

ATIACHMENTC Page C-8 

20 NMAC 2.72 Proposed Corrections 
3. The Department will make a final decision on the issuance of the permit after 

consideration of the following factors: 

a. The nature of the toxic air pollutant and the size, susceptibility, and 

proximity of the human population; 

b. The pathways of human exposure (e.g., ingestion, inhafation, skin 

absorption); 

c. The short term and long term health effects associated with the toxic 

air pollutant at levels of exposure commensurate with the anticipated exposure level; 

d. Existing epidemiological data on health effects associated with the 

anticipated levels of exposure; 

e. The character of the land use of the predicted area of impact (e.g., 

residential, industrial, and recreational); and 

f. The scientific adequacy of the health and environmental assessment 

submitted by the applicant and the recommendation of the ATSAC. The Department shall not rely on 

the OEL or on the administrative screening level of one-one hundredth the OEL, and it shall not be 

bound by prior permit decisions when considering pending applications. 

4. The Department shall deny any application for a permit evaluated under 

Section 405.C if the source will emit a toxic air pollutant in such quantities and duration as may with 

reasonable probability injure human health. 

D The Department shall document, in the administrative record, all processes, 

facts, and reasoning relied on in making the permit decision, including citations to the relevant technical 

data, publications, and expert opinions considered. 

I The final deliberations of the ATSAC shall be open to the public. 

Except for requests by members of the ATSAC for input from the applicant or Department, no other 

comments from the applicant, Department, or audience shall be allowed during final deliberations. 

2 b. Prior to a final decision, the ATSAC members may communicate 

among themselves in order to facilitate the evaluation process. However, all ATSAC members shall be 

apprised of such communications. 

3 Prior to a final decision, the ATSAC members may also communicate 

with the Department and applicant in order to clarifY information or secure additional information 

concerning the applicant's health assessment or the Department's SRS. The Department, applicant, and 

all ATSAC members shall be apprised of such communication. [11-30-95] 

AITACHMENT C Page C-9 

20 NMAC 2. 72 Proposed Corrections 
Table C - Stack Height Release Correction Factor 

Sources may choose to use a correction factor for the release height of emissions for the purpose 

of determining whether a permit is necessary for the emission of a toxic air pollutant_ To apply 

the correction go to the table below and find the minimum height of release for the toxic air 

pollutant and select the correction factor (CF) which corresponds to that figure. If the height of 

release is between two values, the lower number shall be selected; or in the event of multiple 

releases of the same substance from different release heights, the source may choose to use a 

weighted average CF, weighted by the emission rate at each. The emissions in pounds per hour is 

then multiplied by the CF (see below). If the emissions from your source exceed the resulting 

number, you must apply for a permit from the Department_ Remember, this must be done for 

each toxic air pollutant. 

CF x Emissions in Pounds per Hour 

where: E - emission rate (pounds per hour) 

OEL - occupational exposure limit (mg per cubic meter) 

CF is a correction factor, shown in the table below, which accounts for release height. 

Release Height in Meters Correction Factor (CF)* 

Less than 3 1 

10 5 

20 19 

30 41 

40 71 

50 108 

60 !52 

70 202 

80 255 

90 317 

100 378 

110 451 

120 533 

130 617 

!40 690 

!50 781 

160 837 

170 902 

180 1002 

190 1066 

200 1161 

[6-14-94; 8-14-98] 

ATTACHMENT C 

20 NMAC 2. 72 Proposed Corrections Page C-10 
NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD 

P 0 BOX 261 10 I I 190 ST. FRANCIS DRIVE 

SANTA FE, NEW MEXICO 87502-0110 

TITLE 20 

CHAPTER2 

PART 72 

ENVIRONMENTAL PROTECTION 

AIR QUALITY (STATEWIDE) 

CONSTRUCTION PERMITS 

TABLE OF CONTENTS 

SUBPART I- GENERAL PROVISIONS 

I 00. Issuing Agency . 

101. Scope . 

102 Statutory Authority 

I 03 Duration .. 

I 04. Effective Date 

I 05. Objective 

I 06. Amendment and Supersession of Prior Regulations . 

107. Definitions 

108. Documents . 

I 09 - I 99. [Reserved) 

SUBPART II- PERMIT PROCESSING AND REQUIREMENTS 

200. Application for Construction, Modification, NSPS, and 

. . . . . . . I 

. . . I 

. . I 

..... I 

. I 

. I 

I 

. .... 5 

.... 5 

NESHAP - Permits and Revisions . . ........ 5 

20 I. New Source Review Coordination ... 7 . 

202. Exemptions ...... 7 

203. Contents of Applications I I 

204. Confidential Information Protection I 5 

205. Construction, Modification and Permit Revision in Bernalillo County I 5 

206. Public Notice and Participation . 15 

207. Permit Decisions and Appeals . 16 

208: Basis for Denial of Permit . 17 

209. Additional Legal Responsibilities on Applicants ............. 18 

210. Permit Conditions . . .... 18 

211. 

212. 

213. 

214. 

Permit Cancellations . 

Permittee's Notification Requirements to Department 

Startup and Followup Testing . 

Source Class Exemption Process (Permit Streamlining) 

19 

. ................ 20 

. ........... 20 

21 
TABLE OF CONTENTS - CONTINUED 

215 Emergency Permit Process 

216. Nonattainment Area Requirements 

217. Compliance Certifications . 

218. Enforcement . 

219. Permit Revisions . 

220. General Permits 

221 - 299. [Reserved] 

22 

........ 22 

23 

. ..... 23 

. . 24 

28 

... 31 

SUBPART III- SOURCE CLASS PERMIT STREAMLINING 

300. Definitions 31 

301. Applicability .. . ... 33 

302. Contents of Application ... 35 

303. Public Notice and Participation .. . ...... 36 

304 Permit Decisions . . .. 38 

305 General Requirements . . 38 

306. Source Class Requirements . .. 39 

307- 399. [Reserved] . .. 40 

SUBPART IV- PERMITS FOR TOXIC AIR POLLUTANT EMISSIONS 

400. Preamble 

40 I. Definitions 

402. Applicability . 

403. Contents of Application 

404. Public Notice and Participation 

405. Permit Decisions 

406- 499. [Reserved] 

SUBPART V- APPENDIX 

500 Table I - Significant Ambient Concentrations . 

501. Table 2- Permit Streamlining Source Class Categories . 

502. Toxic Air Pollutants and Emissions. 

II 

............ 40 

......... 41 

. 42 

43 

.... 44 

. 45 

. 47 

. ....... 48 

. ....... 48 

. . 49 
TITLE 20 

CHAPTER2 

PART72 

NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD 

P 0. BOX 26110 I 1190 ST. FRANCIS DRJVE 

SANTA FE, NEW MEXICO 87502-0110 

ENVIRONMENTAL PROTECTION 

AIR QUALITY (STATEWIDE) 

CONSTRUCTION PERMITS 

I 00. ISSUING AGENCY: Environmental improvement Board. [ 11-30-95] 

I 0 I. SCOPE: All persons who intend to construct or modifY a source, except as otherwise 

provided by this Part. [ 11-30-95] 

102. STATUTORY AUTHORITY: Environmental Improvement Act, NMSA 1978, Section 

74-l-8(A)(4) and Air Quality Control Act, NMSA 1978, Sections 74-2-1 et seq., including 

specifically, Section 74-2-7(A)( I), (B), (C) and (D). [ 11-30-95] 

103. DURATION: Permanent. Notwithstanding the applicability provisions of Section 402 of 

this Part, the Department is stayed from enforcing requirements relating to asphalt fumes as a 

toxic air pollutant for new or modified sources until September I, 1997. [11-30-95, 8-2-96] 

104. EFFECTIVE DATE: 11-30-95 except where a later date is cited at the end of a section 

or paragraph. [ 11-30-95, 4-22-98] 

105 OBJECTIVE: The objective of this Part is to establish the requirements for obtaining a 

construction permit. [ 11-30-95] 

106. AMENDMENT AND SUPERSESSION OF PRIOR REGULATIONS: This Part 

amends and supersedes Air Quality Control Regulation ("AQCR") 702 -Permits, filed May 29, 

1990, as amended (" AQCR 702"). [ 11-30-95] 

A All references to AQCR 702 in any other rule shall be construed as a reference to 

this Part. [ 11-30-95] 

B. The amendment and supersession of AQCR 702 shall not affect any administrative 

or judicial enforcement action pending on the effective date of such amendment nor the validity of 

any permit issued pursuant to AQCR 702. [ 11-30-95] 

I 07. DEFINITIONS: In addition to the terms defined in Part 2 -Definitions, as used in this 

Part [ I l -T0-95] 

20 NMAC 2.72 11-14-98 
A. "Air pollution control equipment" means any device, equipment, process or 

combination thereof the operation of which would limit, capture, reduce, confine, or otherwise 

control air contaminants or convert for the purposes of control any air contaminant to another 

form, another chemical or another physical state. [ 11-30-95) 

B. "Ambient air" means the outdoor atmosphere, but does not include the area 

entirely within the boundaries of the industrial or manufacturing property within which the air 

contaminants are or may be emitted and public access is restricted within such boundaries. [ 11-

30-95] 

C "Coal mining operation" means the business of developing, producing, preparing 

or loading bituminous coal, subbituminous coal, anthracite, or lignite, or of reclaiming the areas 

upon which such activities occur. This definition does not include coal preparation plants. [I 1-

30-95] 

D. "Coal preparation plant" means any facility which prepares coal by one or more 

of the following processes breaking, crushing, screening, wet or dry cleaning, and thermal 

drying. [ 11-30-95] 

E "Commencement" means that an owner or operator has undertaken a continuous 

program of construction or modification. [11-30-95] 

F. "Construction" means fabrication, erection, installation or relocation of a 

stationary source, including but not limited to temporary installations and portable stationary 

sources. [ 11-30-95) 

G. "Emergency" means unforeseen circumstances resulting in an imminent and 

substantial endangerment to health, safety, or welfare which requires immediate action. [ 11-30-

95] 

H. "Federally enforceable" means all limitations and conditions which are 

enforceable by the administrator of the US EPA, including those requirements developed pursuant 

to 40 CFR Parts 60 and 61, requirements within any applicable State Implementation Plan, 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. [I 1-30-95] 

"Fugitive emissions" means those emissions which could not reasonably pass 

through a stack, chimney, vent, or other functionally equivalent opening. [I 1-30-95] 

K. "Hazardous air pollutant" means an air contaminant which has been classified as 

a "hazardous air pollutant" by the administrator of the US EPA and is subject to a NESHAP. 

[ 11-30-95] 

2ll NMAC 2. 72 2 11-1~-98 
L "Malfunction" means any sudden and unavoidable failure of air pollution control 

equipment, process equipment, or process to operate in an expected manner. Failures that are 

caused entirely or in part by poor maintenance. careless operation, or any other preventable 

equipment breakdown shall not be considered a malfunction. [ 11-30-95] 

M. "Modification" means any physical change in, or change in the method of 

operation of, a stationary source which results in an increase in the potential emission rate of any 

regulated air contaminant emitted by the source or which results in the emission of any regulated 

air contaminant not previously emitted, but does not include: 

a change in ownership of the source: 

2. routine maintenance, repair or replacement: 

3. installation of air pollution control equipment, and all related process equipment 

and materials necessary for its operation, undertaken for the purpose of complying with 

regulations adopted by the board or pursuant to the Federal Act; or 

4 unless previously limited by enforceable permit conditions 

a. an increase in the production rate, if such increase does not exceed the 

operating design capacity of the source; 

b. an increase in the hours of operation; or 

c use of an alternative fuel or raw material if, prior to January 6, 1975, 

the source was capable of accommodating such fuel or raw material, or if use of an alternate fuel 

or raw material is caused by any natural gas curtailment or emergency allocation or any other lack 

of supply of natural gas [ 11-30-95] 

N. "National Ambient Air Quality Standard" means, unless otherwise modified, 

the primary (health-related) and secondary (welfare-based) federal ambient air quality standards 

promulgated by the US EPA pursuant to Section I 09 of the Federal Act. [ 11-30-95] 

0 "National Emission Standards for Hazardous Air Pollutants" or 

"NESHAP" mean the regulatory requirements, guidelines and emission limitations promulgated 

by the US EPA pursuant to Section 112 of the Federal Act. [11-30-95] 

P "New Source Performance Standard" or "NSPS" means the regulatory 

requirements, guidelines and emission limitations promulgated by the US EPA pursuant to 

Section Ill of the Federal Act. [ 11-30-95] 

20 NMAC 2 72 3 11-14-98 
Q. "Nonattainment area" means for any air contaminant an area which is shown 

by monitored data or which is calculated by air quality modeling (or other methods determined by 

the administrator to be reliable) to exceed any national or New Mexico ambient air quality 

standard for such contaminant. Such term includes any areas identified under sub-paragraphs (A) 

through (C) of Section 107 (d)(l) ofthe Federal Act. [11-30-95) 

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

a facility [11-30-95] 

s 

[ 11-30-95] 

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

T "Part" means an air quality control regulation under Title 20, Chapter 2 of the 

New Mexico Administrative Code, unless otherwise noted; as adopted or amended by the Board. 

[11-30-95] 

U. "Portable stationary source" means a source which can be relocated to another 

operating site with limited dismantling and reassembly, including for example but not limited to 

moveable sand and gravel processing operations and asphalt plants. [ 11-30-95] 

V. "Potential emission rate" means the emission rate of a source at its maximum 

capacity in the absence of air pollution control equipment which is not vital to production ofthe 

normal product of the source or to its normal operation The determination of maximum capacity 

includes any federally enforceable physical or operational limitation on the capacity of the source. 

[I 1-30-95] 

W "Regulated air contaminant" means, any air contaminant, the emission or 

ambient concentration of which is regulated pursuant to the New Mexico Air Quality Control Act 

or the Federal Act. [ 11-30-95] 

X "Shutdown" means the cessation of operation of any air pollution control 

equipment, process equipment or process for any purpose, except routine phasing out of batch 

process units. [11-30-95] 

Y. "Standard Industrial Classification" or "SIC" means the code from the 

classification manual created by the Executive Office of the President-Office of Management and 

Budget, which categorizes industrial, manufacturing and commercial facilities, as listed in the 

Standard Industrial Code Manual published by the U S. Government Printing Office, Washington 

D.C. 1972. [11-30-95] 

Z. "Startup" means the setting into operation of any air pollution control 

equipmerit~process equipment or process for any purpose, except routine phasing in of batch 

process units. [I 1-30-95] 

20 NMAC 2.72 4 11-14-98 
AA "Stationary source" or "source" means any building, structure, equipment, 

facility, installation (including temporary installations), operation or portable stationary source 

which emits or may emit any air contaminant Any research facility may group its sources for the 

purpose ofthis Part at the discretion of the Secretary. [11-30-95] 

108. DOCUMENTS: Documents incorporated and cited in this Part may be viewed at the 

New Mexico Environment Department, Air Quality Bureau, Harold Runnels Building, 1190 St. 

Francis Drive, Santa Fe, NM 87505. [11-30-95] 

109- 199. (RESERVED( 

SUBPART II- PERMIT PROCESSING AND REQUIREMENTS 

200. APPLICATION FOR CONSTRUCTION, MODIFICATION, NSPS, AND 

NESHAP - PERMITS AND REVISIONS: 

A Permits must be obtained from the Department by 

I. Any person constructing a stationary source which has a potential 

emission rate greater than I 0 pounds per hour or 25 tons per year of any regulated air 

contaminant for which there is a National or New Mexico Ambient Air Quality Standard. If the 

specified threshold in this subsection is exceeded for any one regulated air contaminant, all 

regulated air contaminants with National or New Mexico Ambient Air Quality Standards emitted 

are subject to permit review. Within this subsection, the potential emission rate for nitrogen 

dioxide shall be based on total oxides of nitrogen; 

2. Any person modifYing a stationary source when all of the pollutant 

emitting activities at the entire facility, either prior to or following the modification, emit a 

regulated air contaminant for which there is a National or New Mexico Ambient Air Quality 

Standard with a potential emission rate greater than I 0 pounds per hour or 25 tons per year and 

the regulated air contaminant is emitted as a result ofJhe modification If the specified threshold 

in this subsection is exceeded for any one regulated air contaminant, all regulated air contaminants 

with National or New Mexico Ambient Air Quality Standards emitted by the modification are 

subject to permit review. Within this subsection, the potential emission rate for nitrogen dioxide 

shall be based on total oxides of nitrogen; [ 11-30-95] 

3. Any person constructing or modifYing any source or installing any 

equipment which is subject to Part 77 -New Source Performance Standards, Part 78 - Emission 

Standards for Hazardous A1r Pollutants, or any other New Mexico Air Quality Control 

Regulation which contains emission limitations for any regulated air contaminant; 

- 20 NMAC 2.72 5 11-14-98 
4. For toxic air pollutants, See Subpart IV; 

5. Any person constructing a stationary source which has a potential 

emission rate for lead greater than 5 tons per year or modifYing a stationary source which either 

prior to or following the modification has a potential emission rate for lead greater than 5 tons per 

year, or 

6 Sources which are major sources of hazardous air pollutants by the 

definitions in Part 83 - Construction or Modification of Ma1or Sources of Hazardous Air 

Pollutants. [ 11-30-95] 

B. Fugitive dust emissions from a coal mining operation shall not be subject to the 

requirements of Section 200.A I of this Part. [II-30-95] 

Note: New coal mining operations are required to have an approved air 

pollution control plan for fugitive dust emissions by the New Mexico 

Surface Coal Mining Commission. [ 11-30-95] 

C Any source or modification meeting the applicability requirements of this Part, 

but which is a major stationary source or a major modification as defined in Part 74, shall in 

addition be subject to Part 74- Prevention ofSif(llificant Deterioration. (11-30-95] 

D. Any source or modification meeting the applicability requirements of this Part but 

which is a major stationary source or a major modification as defined in Part 79, shall in addition 

be subject to Part 79- Permits- Nonattainment Areas. [ 11-30-95] 

E For all sources subject to this Part, applications for permits shall be filed prior to 

the commencement of the construction, modification or installation. Regardless of the anticipated 

commencement date, no construction, modification or installation shall begin prior to issuance of 

the permit. [11-30-95] 

F. 

[ 11-30-95] 

Temporary installations and portable stationary sources are subject to this Part. 

G. !fa source consists of more than one unit, a separate permit may be required for 

each unit which is not substantially interrelated with another unit. A common connection leading 

to ductwork, pollution control equipment or a single stack shall not, by itself, constitute a 

substantial interrelationship. [ 11-30-95] 

H. Any source which previously did not require a permit because it was in existence 

before August 3 I, 1972 shall be subject to the requirements ofthis Part if operations cease for a 

period of five years or more and the source has a potential emission rate greater than I 0 pounds 

20 NMAC 2.72 6 11-14-98 
per hour or 25 tons per year of any regulated air contaminant for which there is a National or 

New Mexico Ambient Air Quality Standard. [ 11-30-95] 

Any source meeting the applicability requirements of this Part, but which is a 

major source of hazardous air pollutants, shall in addition be subject to Part 83 - ( 'onstruction or 

Modification of Major Sources of Hazardous Air Pollutants. [ 11-30-95] 

20 I. NEW SOURCE REVIEW COORDINATION: In cases where the new source 

review requirements of either Part 74, 79, 77, 78, or Part 83 -Construction or Modifications of 

Major Sources 'if Hazardous Air Pollutants apply to a new stationary source or modification in 

addition to this Part, the following provisions apply 

A. Only one permit application shall be submitted; 

B. The application shall be ruled complete when information required by all 

applicable regulations has been submitted; 

C Definitions and requirements of each applicable regulation are applied 

separately and do not supersede each other; and 

D. After the requirements of all applicable regulations are met, only one 

permit shall be issued. [ 11-30-95] 

202. EXEMPTIONS: The following exemptions are made to the following requirements of 

Subpart II of this Part. The exemptions in this Section do not apply to emissions of toxic air 

pollutants listed under Section 502 of this Part, do not alter the calculation of the potential 

emissions of toxic air pollutants for applicability under Section 402 of this Part, and do not 

exempt the Department or the owner or operator of any source from any requirement under 

Sections 403, 404, or 405 of this Part. [ 1-7-98) 

A. The following sources and activities shall not be reported in the permit 

application. Emissions from such activities shall not be included in the calculation of facility-wide 

potential emission rate under Sections 200.A.I or 200.A.2. Such activities may be commenced or 

changed without a permit or permit revision under this Subpart 

I. Activities which occur strictly for maintenance of grounds or buildings, 

including: lawn care, pest control, grinding, cutting, welding, painting, woodworking, sweeping, 

general repairs, janitorial activities, and building roofing operations; 

2. Activities for maintenance of equipment or pollution control equipment, 

either inside or outside of a building, including cutting, welding, and grinding, but excluding 

painting; 

20 NMAC 2.72 7 11-14-98 
3. Exhaust emissions from forklifts, courier vehicles, front end loaders, 

graders, carts, maintenance trucks, and fugitive emissions from fleet vehicle refueling operations, 

provided such emissions are not subject to any requirements under this Chapter (Air Quality), 

NSPS or NESHAP: 

4. Use of fire fighting equipment and fire fighting training: 

5. Government military activities such as field exercises, explosions, 

weapons testing and demolition to the extent that such activities: 

a. Do not result in visible emissions entering publicly accessible 

areas: and 

b. Are not subject to a NSPS or NESHAP: 

6. Office activities, such as photocopying: 

7. Test drilling for characterization of underground storage tank and waste 

disposal sites: 

8. Non-anthropogenic wind blown dust: 

9. Residential activities such as use of fireplaces, woodstoves, and barbecue 

cookers: 

I 0. Gases used to calibrate plant instrumentation, including continuous 

emission monitoring (CEM) systems: 

I I. Food service, such as cafeteria activities: 

12. Automotive repair shop activities, except painting and use of solvents: 

13. Use of portable aerospace ground equipment (such as power generators, 

compressors, heaters, air conditioners, lighting units) in direct support of aircraft operations and 

on or in the immediate vicinity of an airfield: 

14. Activities which occur strictly for preventive maintenance of highway 

bridges, displays and water towers, including: grinding, cutting, welding, painting, and general 

repairs: 

15. The act of repositioning or relocating equipment, pipes, ductwork, or 

conveyors within the plant site, but only when such change in physical configuration does not: 

20 NMAC 2.72 8 11-14-98 
a Reposition or relocate any source of air emissions or the emission 

points from any such source; or 

b 

such emissions. [ 1-7 -98) 

Increase the amount of air emissions or the ambient impacts of 

B. The presence of the following new or modified sources and activities at the 

facility shall be reported as provided for in the permit application forms supplied by the 

Department Emissions from such sources and activities shall not be included in the calculation of 

facility-wide potential emission rate under Sections 200.A.I or 200.A.2 of this Part. Construction 

of such sources or commencement of such activities after issuance of the permit shall be subject to 

the administrative permit revision procedures in Section 219 of this Subpart 

1. Fuel burning equipment which is used solely for heating buildings for 

personal comfort or for producing hot water for personal use and which: 

a. Uses gaseous fuel and has a design rate less than or equal to five 

( 5) million BTU per hour; or 

b. Uses distillate oil (not including waste oil) and has a design rate 

less than or equal to one ( 1) million BTU per hour; 

2. VOC emissions resulting from the handling or storing of any VOC if: 

a. Such VOC has a vapor pressure of less than two tenths (0 2) PSI 

at temperatures at which the compound is stored and handled; and 

b. The owner or operator maintains sufficient record keeping to 

verifY that the requirements of Section 202.8.2.a are met; 

3. Standby generators which are: 

a. Operated only during the unavoidable loss of commercial utility 

power; 

b Operated less than 500 hours per year; and 

c. Either are: 

(I) The only source of air emissions at the site; or 

(2) Accompanied by sufficient record keeping to verifY that 

the standby generator is operated less than 500 hours per year; 

20 NMAC 2. 72 9 11-14-98 
4. The act of repositioning or relocating sources of air emissions or 

emissions points within the plant site, but only when such change in physical configuration does 

not increase air emissions or the ambient impacts of such emissions; 

5. Any emissions unit, operation, or activity that has a potential emission 

rate of no more than one-half(V2) ton per year of any pollutant for which a National or New 

Mexico Ambient Air Quality Standard has been set or one-half ('h) ton per year of any VOC 

Multiple emissions units, operations, and activities that perform identical or similar functions shall 

be combined in determining the applicability of this exemption; 

6. Surface coating of equipment, including spray painting, roll coating, and 

painting with aerosol spray cans, if: 

a. The potential emission rate of YOCs do not exceed ten (I 0) 

pounds per hour; 

b. The facility-wide total VOC content of all coating and clean-up 

solvent use is less than two (2) tons per year; and 

c. The owner or operator maintains sufficient record keeping to 

verifY that the requirements in 202.B.6.a and b above are met; · 

7. Particulate emissions resulting from abrasive blasting operations, if: 

a. Blasting operations are entirely enclosed in a building; and 

b. No visible particulate emissions are released from the building. 

[1-7-98] 

C For sources and units subject to 40 CFR Part 60 (NSPS), 40 CFR Part 61 

(NESHAP) or other Parts of this Chapter (Air Quality), except 40 CFR Part 60 Subparts I 

(asphalt plants) and 000 (rock crushers), 40 CFR Part 61 Subpart C (Beryllium), and 40 CFR Part 

61 Subpart D (Beryllium Rocket Motor Firing): 

I. Such sources and units shall be exempt from the applicability 

requirements in Section 200.A3 if such sources or units: 

a. Are included in a Notice oflntent filed under Part 73 - Notice of 

Intent and Emissions Inventory; or 

b. Have met the notification requirements to which they are subject 

under NSPS or NESHAP; and 

20 NMAC 2.72 10 11-14-98 
2. Applicability determinations under Sections 200A I and 200A2 of this 

Part shall take into account all federally enforceable emission limits established for such sources or 

units under NSPS. NESHAP and other Parts of this Chapter [2-8-98] 

D. Portable Source Relocation. For a portable source which has been issued a 

permit under this Part: 

Such source may relocate without undergoing a permit revision if: 

a The source is installed in a manner conforming with the initial 

permit; 

b The source continues to meet all applicable emission limitations 

and permit conditions; and 

c. The source meets the applicable requirements in Sections 202.D.2 

and 202.D.3 below. 

2 For each portable compressor engine which has been issued a streamlined 

permit in accordance with Section 30l.D.l of this Part, the owner or operator shall complete the 

appropriate forms provided by the Department and maintain such records on file for at least two 

(2) years; 

3. For all other portable sources, including but not limited to rock crushers 

and asphalt plants 

a. The owner or operator shall notifY the Department, on the form 

provided by the Department, at least fifteen (IS) days prior to beginning installation at the new 

location; 

b. Operation at a new location of such source shall not commence 

until the Department has approved the relocation in writing; 

c. The Department shall not approve the relocation if it would result 

in exceedances of any National or New Mexico Ambient Air Quality Standard at the new 

location; and 

d. The Department shall approve, deny, or approve with conditions, 

the relocation request within fifteen (15) days of receipt of the notice form. [I 1-30-95; Rn, 20 

NMAC 2.72.202.8, 1-7-98; 1-7-98] 

203. CONTENTS OF APPLICATIONS: 

20 NMAC 2.72 II 11-14-98 
A. The requirements of this Section may be modified by the Department, as 

appropriate, for emergency permits processed under Section 215. Any person seeking a permit 

under Section 200.A of this Part shall do so by filing a written application with the Department. 

The applicant shall submit at least five (5) copies of the permit application. All applications shall, 

as required by the Department: 

I. Be made on forms furnished by the Department; 

2. State the applicant's name and address, together with the names and 

addresses of all owners or operators of the source, and the applicant's state of incorporation or 

principal registration to do business; 

3. State the date of the application; 

4. Provide all information, including all calculations and computations, to 

describe the specific chemical and physical nature and to estimate the maximum quantities of any 

regulated air contaminants the source will emit after construction, modification or installation is 

completed, through routine operations, and all information, including all calculations and 

computations reasonably necessary to estimate maximum potential emissions during malfunction, 

startup, shutdown. With respect to a toxic air pollutant as defined by Section 40 I.H this 

requirement only applies when the toxic air pollutant is emitted in such a manner that a permit is 

required under the provisions of Subpart IV; 

5. Demonstrate through submission of US EPA approved modeling or 

analysis, including all pertinent calculations and computations, that emissions from routine 

operations will not violate any NSPS, NESHAP, regulation adopted by the board under the Air 

Quality Control Act, any New Mexico or National Ambient Air Quality Standard, or prevention 

of significant deterioration increment; 

6. Provide a preliminary operational plan defining the measures to be taken 

to mitigate source emissions during malfunction, startup or shutdown, 

7. Be accompanied by 

a. A map, such as the 7.5 minute Topographic Quadrangle map 

published by the United States Geological Survey or the most detailed map available showing the 

exact location of the proposed construction, modification or installation of the source; 

b. A process flow sheet, including a material balance, of all 

components of the facility which would be involved in routine operations and emissions; 

20 NMAC 2.72 12 11-14-98 
c. A full description, including all calculations and the basis for all 

control efficiencies presented, of the equipment to be used for air pollution control, including a 

process flow sheet, or, if the Department so requires layout and assembly drawings, 

d. A description of the equipment or methods proposed by the 

applicant to be used for emission measurement; and 

8. State the maximum and standard operating schedules of the source after 

completion of construction, modification or installation or after permit revision in terms of which 

and how many hours per day, days per week, days per month and days per year~ 

9. Contain such other relevant information as the Department may reasonably require~ and 

I 0. Be signed under oath or affirmation by the operator, the owner or an 

authorized representative, certifYing, to the best of his or her knowledge the truth of, all 

information in the application and addenda, if any. [ 11-30-95) 

B. In addition to requirements in Section 203.A, each application filed with the 

Department for a permit or technical or significant permit revision shall include documentary 

proof that the applicant has provided notice of the filing of the application to the public and other 

affected individuals and entities. The notice shall be 

I. Provided by certified mail, to the owners of record, as shown in the most 

recent property tax schedule, of all properties 

a. Within one hundred (I 00) feet of the property on which the 

facility is located or proposed to be located, if the facility is or is proposed to be located in a Class 

A or Class H county or a municipality with a population of more than two thousand five hundred 

(2500) persons~ or 

b. Within one-half('/,) mile of the property on which the facility is 

located or is proposed to be located if the facility is or will be in a county or municipality other 

than those specified in subparagraph 203.B.I.a of this subsection~ 

2. Provided by certified mail to all municipalities and counties in which the 

facility is or will be located and to all municipalities, Indian tribes, and counties within a ten (I 0) 

mile radius of the property on which the facility is proposed to be constructed or operated~ 

3. Published once in a newspaper of general circulation in each county in 

which the property on which the facility is proposed to be constructed or operated is located. 

This notice shall appear in either the classified or legal advertisements section of the newspaper 

20 NMAC 2. 72 13 11-14-98 
and at one other place in the newspaper calculated to give the general public the most effective 

notice and, when appropriate, shall be printed in both English and Spanish~ 

4. Posted in at least four (4) publicly accessible and conspicuous places. 

including 

a. The proposed or existing facility entrance on the property on 

which the facility is, or is proposed to be, located, until the permit or significant permit revision is 

issued or denied~ and 

b. Three (3) locations commonly frequented by the general public. 

such as a nearby post office, public library, or city hall~ and 

5. Submitted as a public service announcement to at least one radio or 

television station which serves the municipality or county in which the source is or is proposed to 

be located. [ 11-30-95, 1-7-98] 

C The notice specified in Section 203.8 I through 4 shall contain the following 

I. The applicant's name and address, together with the names and addresses 

of all owners or operators of the facility or proposed facility~ 

2. The actual or estimated date that the application was or will be submitted 

to the Department~ 

3. The exact location of the facility or proposed facility~ 

4. A description of the process or change for which a permit is sought, 

including an estimate of the maximum quantities of any regulated air contaminant the source will 

emit after proposed construction is complete or permit is issued~ 

5. The maximum and standard operating schedules of the facility after 

completion of proposed construction or permit issuance~ and 

6. The current address of the Department to which comments and inquiries 

may be directed [ 11-30-95, 1-7-98] 

D. The public service announcement request specified in Section 203.8.5 shall 

contain the following information about the facility or proposed facility: 

I. The name, location, and type of business~ 

2. The name of the principal owner or operator~ 

20 NMAC 2. 72 14 11-14-98 
3 The type of process or change for which a permit is sought, 

4. Locations where the notices required under Section 203.B.4 have been 

posted: and 

5. The address or telephone number at which comments and inquires may be 

directed to the Department. [ 1-7-98] 

204. CONFIDENTIAL INFORMATION PROTECTION. All confidentiality claims made 

regarding material submitted to the Department under this Part shall be reviewed under the 

provisions of Part I- General Provisions. [11-30-95] 

205 CONSTRUCTION, MODIFICATION AND PERMIT REVISION IN 

BERNALILLO COUNTY For the construction or modifications of sources within Bernalillo 

County, the applicant shall make such applications to the air quality control staff of the joint 

Albuquerque-Bernalillo County Air Quality Control Board, unless that board loses, rejects or fails 

to exercise authority for the administration and enforcement of the Air Quality Control Act, at 

which time this Part shall apply in full in Bernalillo County. [11-30-95] 

206. PUBLIC NOTICE AND PARTICIPATION: 

A The Department shall 

I. Make available for public inspection a list of all pending applications for 

permits or permit revisions: 

2. Make available for public inspection the permit application and the 

Department's preliminary determination. This material shall be available both at the Department's 

central office and the district or field office nearest to the proposed source. Copies of any permit 

application, except those portions of which may be determined as confidential in accordance with 

Part I - General Provisiom, will be supplied upon written request and payment of reasonable 

costs: 

3. Subsequent to the availability for public review of the permit application 

and preliminary determination, publish a public notice in a newspaper of general circulation in the 

area closest to the location of the source. The notice shall include: the applicant's name and 

address, the location and brief description of the source, a summary of estimated emissions and 

ambient impact, and the Department's preliminary intent to grant or deny the permit The notice 

shall identify the location of the permit application and preliminary determination for public 

review and describe the manner in which comments or evidence may be submitted to the 

Department: 

20 NMAC 2. 72 15 11-14-98 
4. Allow all interested persons forty-five (45) days from the date the public 

notice is published to submit written comments or evidence on the preliminary determination and 

application and to request a public hearing; 

5. Mail written notice of the action taken on a permit application to those 

persons who submitted written comments or evidence on the application; 

6. Mail a copy of the public notice at the same time it is sent for publication 

to the appropriate agency in the following locations if the source will locate within fifty kilometers 

of the boundary of other states, Bernalillo County, or a Class I area. A copy of all public notices 

shall be sent to US EPA Region VI. (11-30-95, 1-7-98] 

8. The Department shall hold a public hearing if the Secretary determines that there 

is a significant public interest. Public hearings shall be held in the geographic area likely to be 

impacted by the source. The time, date, and place of the hearing shall be determined by the 

Department. The Department shall give notice of the hearing to the applicant and the public. The 

Secretary may appoint a hearing officer A transcript of the hearing shall be made at the request 

of either the Department or the applicant and at the expense of the person requesting the 

transcript. At the hearing, all interested persons shall be given a reasonable chance to submit data, 

views or arguments orally or in writing and to examine witnesses testirying at the hearing. [I 1-

30-95] 

207 PERMIT DECISIONS AND APPEALS: 

A The Department shall, within thirty (30) days after its receipt of an application for 

a permit or significant permit revision, review such application for completeness. If the 

application is judged complete, a letter to that effect shall be sent by certified mail to the 

applicant. If the application is judged incomplete a letter shall be sent by certified mail to the 

applicant stating what additional information or points of clarification are necessary to judge the 

application complete. If the application is judged complete but no permit is required, a letter 

shall be sent by certified mail to the applicant informing the applicant of the determination. [11-

30-95, 1-7-98] 

B. The Department shall, as soon as practicable after the Department deems the 

application complete but not to exceed one hundred eighty ( 180) days or two hundred forty (240) 

days if the application is subject to Part 74- Prevention ofSiplijicant Detenoralion, either grant, 

grant subject to conditions or deny the permit or significant permit revision. [ 11-30-95, 1-7-98] 

C The Department shall grant the permit, grant the permit subject to conditions, or 

deny the permit based on information cont11ined in the Department's administrative record. The 

administrative record shall consist of the application, any other evidence submitted by the 

applicant,· any evidence or written comments submitted by interested persons, any other evidence 

20 NMAC 2 72 16 11-14-98 
considered by the Department, a statement of matters officially noticed, and if a public hearing is 

held, the evidence submitted at the hearing. [ 11-30-95] 

D. Any person who participated in a permitting action before the Department shall 

be notified by the Department of the action taken and the reasons for the action Notification of 

the applicant shall be by certified maiL [I I -30-95] 

E. Any person who participated in a permitting action before the Department and 

who is adversely affected by such permitting action may file a petition for hearing before the 

board. The petition shall be made in writing to the board within thirty (30) days from the date 

notice is given of the Department's action and shall specifY the portions of the permitting action to 

which the petitioner objects, certifY that a copy of the petition has been mailed or hand-delivered 

as required by this paragraph, and attach a copy of the permitting action for which review is 

sought. Unless a timely request for hearing is made, the decision of the Department shall be finaL 

The petition shall be copied simultaneously to the Department upon receipt of the appeal notice. 

If the petitioner is not the applicant or permittee, the petitioner shall mail or hand-deliver a copy 

of the petition to the applicant or permittee. The Department shall certifY the administrative 

record to the board. [I I -30-95] 

F. If a timely request for a hearing is made, the board shall hold a hearing within 

ninety (90) days of receipt of the petition in accordance with Section 74-2-7 of the New Mexico 

Air Quality Control Act, NMSA 1978. (I 1-30-95, 1-7-98] 

G. Any person adversely affected by an administrative action taken by the board may 

appeal in accordance with Section 74-2-9 of the New Mexico Air Quality Control Act, NMSA 

1978 (1 1-30-95, 1-7-98] 

208. BASIS FOR DENtAL OF PERMIT: The Department shall deny any application for a 

permit or permit revision if considering emissions after controls [I I -30-95] 

A It appears that the construction, modification or permit revision will not meet 

applicable regulations adopted pursuant to the Air Quality Control Act; 

B. The source will emit a hazardous air pollutant or an air contaminant in excess of 

any applicable New Source Performance Standard or National Emission Standard for Hazardous 

Air Pollutants or a regulation of the board; 

C For toxic air pollutants, See Subpart IV; 

D. The construction, modification, or permit revision will cause or contribute to air 

contaminant levels in excess of any National Ambient Air Quality Standard or New Mexico 

Ambient Air Quality Standard unless the ambient air impact is offset by meeting the requirements 

of either Part 79 or Section 2 I 6, whichever is applicable; 

20 NMAC 2 72 17 11-14-98 
E. The construction, modification, or permit revision would cause or contribute to 

ambient concentrations in excess of a Prevention of Significant Deterioration (PSD) increment; 

F. Any provision of the Air Quality Control Act will be violated; 

G. It appears that the construction of the new source will not be completed within a 

reasonable time; or 

H. The construction, reconstruction, modification, or permit revision for major 

sources of hazardous air pollutants does not meet the requirements specified in Part 83. [ 11-30-

95] 

209. ADDITIONAL LEGAL RESPONSIBILITIES ON APPLICANTS: The issuance of 

a permit 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 of the board, and any other applicable law or regulation. [11-30-95] 

210. PERMIT CONDITIONS: 

A. The contents of the application specifically identified by the Department shall 

become terms and conditions of the permit or permit revision. [11-30-95] 

B. The Department shall, as appropriate, speciJY conditions upon a permit, 

including: 

I. Placement of individual emission limits determined on a case-by-case 

basis on the source for which the permit is issued, but such individual emission limits shall be only 

as restrictive as the more stringent of the following: 

a. The extent necessary to meet the requirements of the Air Quality 

Control Act and the Federal Act; or 

b. The emission rate specified in the permit application; 

2. A requirement that such source install and operate control technology, 

determined on a case-by-case basis, sufficient to meet the requirements of the Air Quality Control 

Act and the Federal Act and regulations promulgated under either; 

3. Compliance with applicable NSPS and NESHAP; 

4. Imposition of reasonable restrictions and limitations other than 

restrictions and limitations relating to emission limits or emission rates; or 

20 NMAC 2.72 18 11-14-9& 
5 Any combination of the above; 

6. In the case of a modification, the requirements of this section (21 0 B) 

apply only to the facility or facilities involved in such modification [ 11-30-95; Rn, 20 NMAC 

272210C, 11-14-98, 11-14-98] 

C The Department may impose such other reasonable conditions upon a permit, 

including a schedule of construction, a condition requiring timely revision of permit terms or 

conditions in order to meet new requirements, if any, under any federally required and approved 

State Implementation Plan revision, and conditions requiring the source to be provided with or to 

undertake: 

I. Sampling ports of a size, number and location as the Department may 

reqwre; 

2. Safe access to each port; 

3. Instrumentation to monitor and record emission data including 

continuous emission monitoring, if appropriate; 

4. Any other reasonable sampling, testing and ambient monitoring and 

meteorological facilities and protocols; and 

5. Periodic testing pursuant to Section 213. [11-30-95; Rn, 20 NMAC 

2.72210.D, 11-14-98] 

D. Any term or condition imposed by the Department on a permit or permit revision 

IS enforceable to the same extent as a regulation of the board. [ 11-30-95; Rn, 20 NMAC 

2.72.210.E, 11-14-98] 

E. The Department will as a condition of each permit require the permittee to 

establish and maintain such records of the nature and amount of emissions and to make such 

periodic reports to the Department regarding the nature and amounts of emissions and the 

performance of air pollution control equipment, as are necessary to carry out the purpose of the 

Air Quality Control Act [11-30-95; Rn, 20 NMAC 2.72.210.F, 11-14-98] 

F. RESERVED [11-30-95, 11-14-98] 

21 I. PERMIT CANCELLATIONS: 

A. The Department shall automatically cancel any permit for any source which 

ceases operation for five years or more, or permanently. Reactivation of any source after the five 

year period shall require a new permit. [I 1-30-95] 

20 NMAC 2. 72 19 11-14-98 
B. The Department may cancel a permit if the construction or modification is not 

commenced within two years from the date of issuance or, if during the construction or 

modification, work is suspended for a total of one year, such cancellation shall be subject to the 

following procedures 

I . At least thirty days prior to the cancellation of a permit, the Department 

shall notifY the permittee by certified mail of the impending cancellation. The Department shall 

notifY the permittee by certified mail of the cancellation of his permit and the reasons therefor 

Construction, modification and, if required, interim operation shall cease upon the effective date 

of cancellation contained in the notice of cancellation. A permittee who has received notice that a 

permit is or will be cancelled may request a hearing before the board. The request must be made 

in writing to the board within thirty days after notice of the Department's action has been received 

by the permittee. Unless a timely request for hearing is made, the decision of the Department shall 

be final; and 

2. If a timely request for hearing is made, the board shall hold a hearing 

within thirty days after receipt of the request. The Department shall notifY the permittee by 

certified mail of the date, time and place ofthe hearing. In the hearing the burden of proof shall 

be upon the permittee. The board may designate a hearing officer to take evidence in the hearing. 

Based upon the evidence presented at the hearing, the board shall sustain, modifY or reverse the 

action of the Department [ 11-30-95] 

212. PERMITTEE'S NOTIFICATION REQUIREMENTS TO DEPARTMENT: Any 

owner or operator subject to this Part shall notifY the Department in writing of or provide the 

Department with 

A Anticipated date of initial startup of a source not less than thirty (30) days prior 

to the date; 

B. Actual date of initial startup of a source within fifteen ( 15) days after the startup 

date; 

C Any change of operators within fifteen (15) days of such change; 

D. Any necessary update or correction no more than sixty (60) days after the 

operator knows or should have known of the condition necessitating the update or correction of 

the permit [ 11-30-95] 

213. STARTUP AND FOLLOWUP TESTING: Within sixty (60) days after achieving the 

maximum production rate at which the source will be operated but not later than one hundred 

eighty ( 180) days after initial startup of the source, the owner or operator of the source may be 

required to conduct a performance test. The test method utilized shall be approved by the 

Department Whenever the requirements of 40 CFR 60 or 61 apply, test methods must be utilized 

= 20 NMAC 2.72 20 11-14-98 
as specified in those regulations. The owner or operator shall notify the Department at least thirty 

(30) days prior to the test date and allow a representative of the Department to be present at the 

test. A written report of the results of the test shall be submitted to the Department by the owner 

or operator within thirty (30) days from the test date. This requirement may be reimposed on a 

source as necessary if inspections of the source indicate noncompliance with permit conditions 

subject to such testing, or the previous test showed noncompliance or was technically unsatisfactory In such cases, the test requirement may be reimposed as frequently as necessary until 

compliance is achieved and testing is performed in a technically satisfactory manner. This testing 

requirement may be waived if the source is a member of a class subject to an exemption from this 

requirement pursuant to Section 214, and has agreed to comply with, and its permit contains, 

enforceable design, operational and locational protocols set by the Department for the class of 

sources to which the source belongs. [ 11-30-95] 

214. SOURCE CLASS EXEMPTION PROCESS (PERMIT STREAMLINING): 

A Upon application by any person or group of persons, or upon the initiative of the 

Department, the board may exempt any source or class of sources, from any procedural 

requirement of this Part except the requirement to obtain a permit prior to commencement of 

construction if the board finds that the conditions set forth below in this Section have been met 

When possible, comprehensive exemptions shall be established for source classes in order to 

conduct expedited, streamlined permit processing for any applicant whose source is a member of 

such class. Exemptions may be granted only after a public hearing of the board, at which time the 

basis for such exemption shall be presented and any interested person allowed to comment and to 

question any witness. The board's decision that an exemption under this Section is justified shall 

be based at a minimum on each of the following findings: 

I. The Department has substantial actual experience with or knowledge of 

the specific class of sources proposed for exemption, that such experience or knowledge is 

material to the application for exemption, and that such experience or knowledge includes 

modeling and analysis of a representative sample of such sources. Such knowledge may be 

acquired through, but not limited to, direct Department experience with such sources, or the 

review of other regulatory agencies' experience, records, documentation and formal actions, or 

through publications of professional organizations and societies upon which engineers and 

scientists would conventionally rely in formulating a professional judgment; 

2. The sources possess sufficiently common characteristics of operation, 

process technology, emissions, emission control technology and impact on air quality that with 

respect to the specific requirements proposed to be exempted, protocols have been developed 

which, if applied to all members of that class, will ensure that air quality is protected at least as 

well as would be accomplished by the full permit review process; and 

3. Under such an exemption, compliance with all federal and state air quality 

laws, regulations, standards and emissions limitations will be assured. [ 11-30-95] 

20 NMAC 2.72 21 11-14-98 
B. Exemptions may apply statewide or regionally and may be revoked by the board 

only after a public hearing following at least sixty days public notice. [ 11-30-95] 

C As may be required under federal law, all protocols established hereunder shall be 

submitted to the US EPA for review and approval as revisions to the State Implementation Plan. 

Such protocols shall be established contingent upon approval by the US EPA [11-30-95] 

D. There shall be no exemptions under this Section from the requirements of Part 

74, 79, 77, or 78. [ 11-30-95] 

215. EMERGENCY PERMIT PROCESS: 

A The Department may issue an emergency permit when the Secretary determines 

an emergency exists which threatens the public health, safety or welfare, and which requires the 

rapid construction or modification of, or installation of equipment in, a facility subject to this Part 

in order to mitigate, prevent or remedy such emergency [ 11-30-95] 

B. Department personnel shall verifY that the source, operating in accordance with 

the permit issued, can and will meet all applicable standards, emissions limitations and conditions 

before authorizing start-up in order to ensure that the public emergency is not worsened by excess 

or improperly controlled air pollution. [ 11-30-95] 

C An emergency caused by any negligent or unlawful action or operation of the 

facility or the facility owner or operator, including but not limited to failure to apply timely for a 

permit or revision, shall not constitute an emergency for the purposes of this Section. [ 1 1-30-95] 

D The requirements of Sections 206.A.4 and 5, 206.8, and 207.A and B shall not 

apply to emergency permits processed under this Section [ 11-30-95] 

E. Construction shall not commence until the emergency permit is issued. [ 11-30-

95] 

216. NONA TTAINMENT AREA REQUIREMENTS: 

A. The requirements of this Section apply to: 

1. A source or modification which will emit a regulated air contaminant such 

that the ambient impact of the contaminant would exceed the significant ambient concentration in 

Section 500, Table I at any location that does not meet the New Mexico Ambient Air Quality 

Standard for the contaminant; or 

--·· 2. A source or modification which is not a major stationary source or major 

modification as defined in Part 79 and which will emit a regulated air contaminant such that the 

20NMAC 2.72 22 11-14-98 
ambient impact of the contaminant would exceed the significant ambient concentration in Table I 

at any location that does not meet the National Ambient Air Quality Standard for the contaminant 

[ 11-30-95] 

B. A source or modification subject to this Section shall offset the ambient impact of 

its emissions by 

l. 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 of Part 79: 

a. Section l 14 - Emission Offset Baseline 

b. Section liS -Emission Offsets 

c Section 117 - Air Quality Benefit [ ll-30-95] 

217. COMPLIANCE CERTIFICATIONS: 

A Notwithstanding any other provision in the New Mexico State Implementation 

Plan approved by the Administrator, for the purpose of determining compliance, an owner or 

operator is not prohibited from using monitoring as required under Part 70 and incorporated into 

an operating permit in addition to any specified compliance methods. [ ll-30-95) 

B. The requirements of this Section are only applicable to those sources which, in 

addition to being subject to this Part are either: defined as a major source under Part 70 -

Opera/inK Permits, or; subject to Part 82- Maximum Achievable ( 'ontrol Technolozy Standards 

for Source CateKories of Hazardous Air Pollutants. [ ll-30-95] 

218. ENFORCEMENT: Notwithstanding any other provision in the New Mexico State 

Implementation Plan approved by the Administrator, any credible evidence may be used for the 

purpose of establishing whether a person has violated or is in violation of the terms or conditions 

of a permit issued pursuant to this Part, including permits for sources meeting the applicability 

requirements Part 74 -Prevention ofSi[(ll!ficant Deterioration, or Part 79- PermitsNonallainmenl Areas. [ ll-30-95) 

A Information from the use of the following methods is presumptively credible 

evidence of whether a violation has occurred at the source 

l . A monitoring or information gathering method approved for the source 

pursuant to Part 70 and incorporated in an operating permit; or 

20 NMAC 2.72 23 11-14-98 
2. Compliance methods specified in the New Mexico State Implementation 

Plan. [ 11-30-95] 

B The following testing, monitoring or information gathering methods are 

presumptively credible testing, monitoring or information gathering methods 

I. Any federally enforceable monitoring or testing methods, including those 

in 40 CFR, parts 51, 60, 61 and 75; and 

2. Other testing, monitoring or information gathering methods that produce 

information comparable to that produced by any method in Section 218. A or Section 218. B. I, 

above [ 11-30-95] 

C. The requirements of this Section 218 are only applicable to those sources which, 

in addition to being subject to this Part, are either: defined as a major source under Part 70 -

OperatinJ? Permits, or; subject to Part 82 -Maximum Achievable Co/1/rol Technolozy Standard,· 

fin· Source ( 'ateJ?ories of Hazardous Air Pollutants. [ 11-30-95] 

219. PERMIT REVISIONS: [11-30-95; Rn, 20 NMAC 2 72.202, 1-7-98; 1-7-98] 

A Administrative Permit Revisions 

1. Administrative permit revision procedures may be used only for those 

permit revisions that: 

a. Correct typographical errors; 

b. Provide for a minor administrative change at the source, such as a 

change in ownership or a change in the address or phone number of any person identified in the 

permit; 

c. Incorporate a change in the permit solely involving the retiring of 

a source or closing of a facility upon notification of the Department that the permittee has ceased 

operations of the source or facility; 

d. Incorporate a change in the permit solely involving the deletion 

from the permit of a source or sources upon notification of the Department that the source or 

sources have not been and will not be built; or 

e. Incorporate a source or activity at the facility which is exempted 

under Section 202.B of this Part; 

20 NMAC 2 72 24 ll-14-9R 
2. The permittee shall apply for an administrative permit revision by filing a 

certified written notification of the proposed revision with the Department which includes all 

information required by the Department to review the request. The certification shall be made as 

required under Section 203. A I 0 of this Part; 

3. The administrative permit revision is effective upon receipt of the 

notification by the Department; 

4. Administrative permit revisions shall not be subject to public notification 

requirements under Sections 203 .B and 206 of this Part The Department shall attach the revision 

to the permit; 

5. Administrative permit revisions shall not be subject to filing fees or permit 

fees under Part 2.75- Construction Permll Fees; 

6 The Department is not required to reissue the permit to incorporate an 

administrative permit revision. [I -7 -98) 

B. Technical Permit Revisions 

Technical permit revision procedures may be used only for 

a. Permit revisions that incorporate a change in the permit solely 

involving a change to monitoring, record keeping, or reporting requirements by the permittee. 

provided that the Department determines that such change does not reduce the enforceability of 

the permit; 

b Permit revisions that incorporate a change in the permit solely 

involving additional equipment with a potential emission rate of no more than one (I) pound per 

hour for any pollutant for which a National or New Mexico Ambient Air Quality Standard has 

been set or one (I) pound per hour for any VOC; 

c. Permit revisions that incorporate a change in the permit solely 

involving the placement of permit conditions, including emissions limitations, on sources which 

existed on August 3 I, 1972 and which have been regularly operated since that time; 

d. Modifications that replace an emissions unit for which the 

allowable emissions limits have been established in the permit. provided that the new emissions 

unit: 

(I) Is equivalent to the replaced emissions unit, and serves the 

same function within the facility and process; 

20 NMAC 2. 72 25 11-14-98 
(2) Has the same or lower capacity and potential emission 

rates~ 

(3) Has the same or higher control efficiency, and stack 

parameters which are at least as effective in the dispersion of air pollutants~ 

(4) Would not result in an increase of the potential emission 

rate of any other equipment at the facility~ 

(5) Shall be subject to the same or lower allowable emissions 

limits under the permit, and to all other permit conditions which have applied to the replaced 

emissions unit~ 

(6) Would not, when operated under applicable permit 

conditions, cause or contribute to a violation of any National or New Mexico Ambient Air Quality 

Standard; and 

(7) Would not, as determined by the Department, require 

additional permit conditions in order to ensure the enforceability of the permit, such as additional 

record keeping or reporting to show compliance; or 

e. Permit revisions that make adjustments to the emissions 

limitations based on the result of the initial compliance test( s ), provided that: 

( I) The test is performed in accordance with permit 

conditions; 

(2) Such adjustment occurs within six ( 6) months of the 

compliance test; 

(3) No other such adjustment has occurred since the most 

recent permit issuance or reissuance~ 

(4) Such adjustment does not: alter any other permit 

condition; trigger additional requirements under any other Part, including Part 74- Prevenlion of 

Sif<llificam Delerioralion; or result in allowable emissions which could contribute to a violation of 

any National or New Mexico Ambient Air Quality Standard; 

(5) Such request does not increase the permitted allowable 

emissions of the unit(s) on which the initial compliance test(s) have been performed by more than 

ten (I 0) percent; and 

20 NMAC 2.72 26 11-14-98 
(6) Where the permit fee calculated under Part 75-

Construction Permit Fees would have been greater if it had been based on the potential emission 

rate as indicated by the compliance test, the balance of the permit fee is submitted as part of the 

technical permit revision application; 

2. A request for a technical permit revision shall be accomplished by filing a 

certified written notification of the proposed revision with the Department on forms provided by 

the Department and shall include all information required by the Department to review the 

request. The certification shall be made as required under Section 203. A 10 of this Part, 

3. The Department shall approve or deny the technical permit revision, or 

inform the applicant that the request must be submitted as a significant permit revision: 

a. Within thirty (30) days of receipt of the complete application; or 

b. If in response to significant public interest the Department holds a 

public meeting regarding the technical permit revision, within sixty ( 60) days of receipt of the 

complete application; 

4. The Department may deny an application for a technical permit revision 

or require that such application be submitted as a significant permit revision if: 

a. Such revision does not meet the criteria of this Section; 

b. In the judgment of the Department the revision would require a 

decision on a significant or complex issue; or 

c. In the judgment of the Department the permittee has submitted 

multiple or subsequent applications for technical permit revisions under this Part that segment a 

larger revision or modification that would not be eligible for a technical permit revision; 

5. The technical permit revisio_n shall become effective upon written 

approval from the Department; 

6. Technical permit revisions shall not be subject to public notification 

requirements under Sections 203.8.1, 4, and 5 and 206 of this Part. The Department shall attach 

the technical permit revision to the permit [ 1-7-98] 

C (RESERVED( 

D. Significant Permit Revisions 

20 NMAC 2.72 27 11-1~-98 
I. A significant permit revision is required for any modification to a source, 

and for revisions to any term or condition of such permit, including but not limited to emissions 

limitation, control technology, operating conditions, and monitoring requirements; that 

a. Do not meet the criteria under the provisions for administrative or 

technical permit revisions under Sections 219.A orB; or 

b. Meet the applicability criteria under Section 402 of this Part 

regarding toxic air pollutants; 

2. Applications for significant permit revisions shall meet all requirements of 

this Part for permits and shall be processed in accordance with the public notice, review, and 

hearing procedures set forth in this Part for such permits. [11-30-95; Rn, 20 NMAC 2.72.202.A, 

1-7-98; 1-7-98] 

220. GENERAL PERMITS: 

A. Issuance of General Construction Permits. 

I. The Department may, after notice under Section 206.A of this Part and a 

public hearing with opportunity for public participation under Section 206. B of this Part, issue 

one or more general construction permits, each covering numerous similar sources. Sources 

registered for coverage under a general permit shall be generally homogeneous in terms of 

operations, processes and emissions, subject to the same or substantially similar requirements, and 

not subject to case-by-case standards or requirements 

2. Each general construction permit shall 

a. Describe which sources may qualify to register under the general 

construction permit; 

b. Specify the contents of a complete application to register under 

the general construction permit. The Department may, in the general construction permit, provide 

for applications which deviate from the requirements under Section 203 of this Part (Contents of 

Application), provided that such applications include 

(I) All information necessary to determine qualification for, 

and to assure compliance with, the general construction permit; and 

(2) Applicant's public notice requirements including, at a 

minimum, a notice: 

20 NMAC 2 72 28 11-14-98 
(a) Published once in the legal notices section of a 

newspaper in general circulation in the county or counties in which the property on which the 

facility is proposed to be constructed or operated is located; and 

(b) Posted at the proposed or existing facility entrance 

in a publicly accessible and conspicuous place on the property on which the facility is, or is 

proposed to be, located, until the general permit registration is granted or denied; 

c. Contain permit terms and conditions which apply to all sources 

registered under the general construction permit, and which include 

(I) Sufficient terms and conditions to assure that all sources 

registered under and operating in accordance with the general construction permit will meet all 

applicable requirements under the federal Act, the New Mexico Air Quality Control Act and this 

Chapter (Air Quality), including Parts 74- Prevention ofSiRJ1ificant Deterioration, 77- New 

Source Performance Standards, 78- Emission Standards for Hazardous Air Pollutants, 79-

Permits- Nonattainment Areas, and 82- Maximum Achievable Control Technolozy Standard,· 

for Source Catef(ones of Hazardous Air Pollutants, and will not cause or contribute to air 

contaminant levels in excess of any National or New Mexico Ambient Air Quality Standard; and 

(2) Monitoring, record keeping and reporting requirements 

appropriate to the source and sufficient to ensure compliance with the general construction 

permit At a minimum, the general permit shall specifY where the records shall be maintained, 

how long the records shall be retained and that all records or reports shall be made available upon 

request by the Department; 

(3) As appropriate, terms and conditions to address and report 

emissions occurring during upsets, startups and maintenance; and 

d SpecifY that any document, including any application form, report, 

compliance certification and supporting data, submitted pursuant to this Section (220) shall 

contain a certification that meets the requirements of Section 203 A I 0 of this Part. 

[4-22-98) 

B. Revisions to a General Construction Permit 

I. The Department may, after notice under Section 206.A and a public 

hearing with opportunity for public participation under Section 206.8, revise a generalconstruction permit Notice of the proposed revision shall also be sent to the owner or operator 

of all sources registered under the general construction permit 

2 Revisions to a general construction permit shall include a reasonable 

transition schedule for existing registered sources to comply with the revised permit The 

20 NMAC 2 72 29 11-14-98 
Department shall revise the general permit terms and conditions only to the extent necessary to 

ensure that the requirements of Paragraph A.2.c of this Section (220) are met. 

[4-22-98] 

C. Registration under a General Construction Permit. 

I. The owner or operator of a source required to obtain a permit pursuant to 

this Part and which qualifies to register under a general construction permit shall either· 

a. Apply to the Department to register under the terms of the general 

construction permit; or 

b. Apply for a construction permit under Section 200 of this Part. 

2. Within thirty (30) days of receiving an application to register under a 

general construction permit, the Department shall review the application for completeness and 

shall grant or deny the registration. The Department shall not grant the registration until at least 

fifteen ( 15) days after the date the applicant's public notice was initiated. The Department shall 

notifY the applicant of its determination by certified mail. The Department shall attach a copy of 

the general construction permit to registration approvals. 

3. The Department shall grant registration under a general permit to a 

source only if: 

a. The application is complete and meets the requirements of this 

Section (220); and 

b. The source meets the terms and conditions of the general permit. 

4. The Department may grant or deny an application to register under a 

general construction permit without repeating the public notice and participation procedures 

required under Section 206 of this Part. 

5. Administrative review under §74-2-7.H through L NMSA 1978 shall be 

available for a determination made by the Department of whether or not a source qualifies to 

register for coverage under a general construction permit. However, administrative review of a 

registration for coverage under a general construction permit shall not extend to administrative 

review of the general permit itself Administrative review of the general construction permit shall 

be available under §74-2~7.H through L NMSA 1978 only upon issuance or revision of the 

general permit as a permitting action. 

6. Sources shall be subject to enforcement action for construction without a 

permit if: 

20 NMAC 2.72 30 11-14-98 
a. Construction of a source is commenced prior to the receipt of the 

Department's written approval of registration under a general construction permit; or 

b. It is determined after construction commences that a source does 

not qualify for coverage under the general construction permit. 

7. A general permit registration may be canceled, consistent with the 

provisions of Section 21 I of this Part, for any source which ceases operation for five years or 

more, or permanently, and for any source for which the construction or modification is not 

commenced within two years from the date of issuance or, if during the construction or 

modification, work is suspended for a total of one year. The owner or operator shall notify the 

Department of the anticipated and actual startup of a source, consistent with the provisions of 

Section 212 of this Part 

[ 4-22-98) 

D. Modifications to Sources Registered Under a General Construction Permit. 

Each general construction permit shall provide that, prior to modification of a 

source which is registered under a general construction permit, the owner or operator shall: 

I. For those modifications for which the facility will continue to meet the 

conditions of the general construction permit after the modification, notify the Department in 

writing of such modification; and 

2. For those modifications for which the source will not continue to meet 

the conditions of the general construction permit after such modification, obtain a construction 

permit from the Department under this Part prior to the modification. 

[4-22-98) 

221 - 299. (RESERVED( 

SUBPART III- SOURCE CLASS PERMIT STREAMLINING 

300. DEFINITIONS: In addition to the definitions in Section I 07, the following definitions 

apply to this Subpart: 

A. "Compressor station" means a facility whose primary function is the extraction 

of crude oil, natural gas, or water from the earth with compressors, or movement of any fluid, 

including crude oil or natural gas, or products refined from these substances through pipelines or 

the injection of natural gas or C02 back into the earth using compressors. A compressor station 

may include engines to generate power in conjunction with the other functions of extraction, 

20 NMAC 2.72 31 11-14-98 
injection or transmission and may contain emergency flares. A compressor station may have 

auxiliary equipment which emits small quantities of regulated air contaminants, including but not 

limited to, separators, de-hydration units, heaters, treaters and storage tanks, provided the 

equipment is located within the same property boundaries as the compressor engine [ 11-30-95] 

B. "Good engineering practice stack height" means H<OEP = H + 1.5L, where H 

equals the height of any building or obstruction within 5 L of the stack, and L equals the lesser of 

the height or maximum projected width of the building or obstruction. [ 11-30-95] 

C. "Impact area" means the circular area with a radius extending from the source 

to the most distant point where the total potential emissions from the facility will cause a 

significant ambient impact (i.e , equal or exceed the applicable significant ambient impact level in 

Part 72, Section 500, TABLE I ). [ 11-30-95] 

D. "Maximum projected width" means the largest crosswind building or 

obstruction dimension. (11-30-95] 

E. "Potential to emit" or "potential emissions" means the maximum capacity of a 

stationary source to emit a regulated air contaminant under its physical and operational design. 

Any physical or operational limitation on the capacity of the source to emit a regulated air 

contaminant, including air pollution control equipment and restrictions on hours of operation or 

on the type or amount of material combusted, stored, or processed, shall be treated as part of its 

design if the limitations or the effect it would have on emissions is federally enforceable. 

Secondary emissions do not count in determining the potential to emit of a stationary source. 

[11-30-95, 11-14-98] 

F. "Secondary emissions" means emissions of an air contaminant which occur as a 

result of the construction or operation of a stationary source or modification, but do not come 

from the stationary source or modification itself Secondary emissions must be specific, well 

defined, quantifiable, and impact the same general areas as the stationary source or modification 

which causes the secondary emissions. Secondary emissions include emissions from any offsite 

support facility which would not be constructed or increase its emissions except as a result of the 

construction or operation of the stationary source or Jllodification. Secondary emissions do not 

include any emissions which come directly from a mobile source, such as emissions from the 

tailpipe of a motor vehicle, from a train, or from a vessel. [ 11-30-95] 

G. "SUM" means the sum of the potential emissions for oxides of nitrogen from all 

adjacent sources. [ 11-30-95] 

H. "SUM.," means the sum of the potential emissions for oxides of nitrogen from 

all adjacent sources within 15 km of the N02 impact area. [11-30-95] 

20 NMAC 2.72 32 11-14-98 

• 
I. "SUM2;'' means the sum of the potential emissions for oxides of nitrogen from 

all adjacent sources within 25 km of the NO, impact area. [ 11-30-95] 

J. "Sweet natural gas" means natural gas containing no more than 0 25 grains of 

hydrogen sulfide per 100 standard cubic feet of gas. [ 11-30-95] 

301. APPLICABILITY: 

A. Any owner or operator intending to construct or modifY a source which requires 

a permit under the provisions of Part72, Section 200 may elect to obtain a permit under Part 72, 

Subpart III if the source category is listed in Section 501, TABLE 2. [11-30-95) 

B. Part 72, Subpart III shall not apply to 

I. Any "major stationary source" as defined in Part 74; 

2. Any facility, either before or after construction or modification, with a 

total potential to emit of any regulated air contaminant greater than 200 tons per year (tpy); 

3. Any source subject to the requirements of Part 78 or Part 72, Subpart 

IV; 

4. Any reciprocating internal combustion (!C) engines and/or turbines 

located at petroleum refineries, chemical manufacturing plants, bulk gasoline terminals, natural 

gas processing plants, or at any facility containing sources in addition to IC engines and/or 

turbines for which an air quality permit is required through state or federal air quality regulations; 

5. Any source which emits or proposes to emit those contaminants for 

which the impact area from the facility intersects an area, or for which the area itself is I) 

designated nonattainment for federal ambient air quality standards; or 2) nonattainment for federal 

PSD increments or state ambient air quality standards according to ambient data or air quality 

modeling; or 3) shown by air quality data or dispersion or other air quality modeling that air 

contaminants have consumed more than 80% of state or federal ambient air quality standards or 

PSD increments for those areas where the baseline has been triggered for the specific PSD 

mcrements; 

6. Any source with the nearest property boundary located less than: 

a. I kilometer (km) from a school, residence, office building, or 

occupied structure. Buildings and structures within the immediate industrial complex of the 

source are not included. 

20 NMAC 2. 72 33 11-14-98 
b. 3 km from the property boundary of any state park, Class II 

wilderness area, Class II national wildlife refuge, national historic park, state recreation area, or 

community with a population of more than twenty-thousand people 

c. I 0 km from the boundary of any community with a population of 

more than forty-thousand people, or 

d. 30 km from the boundary of any Class I area; 

7 Any source located in Bernalillo County or within 15 km of the Bernalillo 

County line [ 11-30-95] 

C The following Sections of Part 72, Subpart II apply to permit applications 

submitted pursuant to Part 72, Subpart Ill Sections 200.A, 200.B, 200.E through 200 H, 202, 

204,205, 206.B, 207.C through 207.F, 208 through 212,214, and 215. The remainder of Part 

72, Subpart II does not apply to applications submitted pursuant to Subpart Ill. [ 11-30-95] 

D. Any source, including compressor stations, consisting of!C engines and/or 

turbines must comply with one of the following three criteria, Section 301.D.l, 301.D.2, 301.D.3, 

in order to qualifY for source class permit streamlining under Part 72, Subpart Ill (In 

demonstrating compliance with Section 30 I .D, the Department shall give no credit for modeled 

reductions in ambient air concentrations due to so much of a source's stack which exceeds good 

engineering stack height, or fifty (50) feet in situations where there are not obstructions or 

buildings associated with the source): 

I. The total potential to emit of each regulated contaminant from all sources 

at the facility shall be less than 40 tpy. The potential to emit for nitrogen dioxide shall be based on 

total oxides of nitrogen; or 

2. The total potential to emit of each regulated contaminant from all 

emission sources at the facility shall be less than I 00 tons per year (tpy) and the impact on 

ambient air from all sources at the facility shall be less than the ambient significance levels in Part 

72, Section 500, Table 1. The potential to emit for nitrogen dioxide shall be based on total oxides 

of nitrogen expressed as nitrogen dioxide; or 

3. The maximum modeled ambient impact from the total potential emissions 

at the facility shall be less than 50 percent of each applicable PSD increment, for those areas 

where the baseline has been triggered for the specific PSD increments, and state and federal 

ambient air quality standards; and 

a. There shall be no adjacent sources emitting the same regulated air 

contaminant{sfas the source within 2.5 km of the modeled nitrogen dioxide (NO,) impact area; 

and 

20 NMAC 2.72 34 I 1-14-98 
b. The "sum of the potential emissions for oxides of nitrogen from all 

adjacent sources" (SUM) within 15 km of the NO, impact area (SUM15) shall be less than 740 

tpy, and 

C. 

than 1540 tpy. [ 11-30-95] 

The SUM, within 25 km from the NO, impact area shall be less 

4. Modifications to the auxiliary emission generating equipment at a facility 

qualifying and electing source class permit streamlining may commence without obtaining a 

permit for such modification as long as the total potential to emit of all auxiliary equipment 

remains at or below 1.0 lb/hr for any one regulated air contaminant and as long as the total 

potential to emit of each regulated air contaminant from the compressor station meets the 

requirements of Sections 30 I.D.I or 30 l.D.2 or previously qualified under Sections 30 1.0.3. 

The applicant shall provide, in writing, the nature of all changes to the Department no later than 

15 days prior to the expected change. [ 11-30-95] 

302. CONTENTS OF APPLICATION: 

A Any person seeking a permit under Part 72, Subpart Ill shall do so by filing a 

written application with the Department. For those applications not qualifying under Section 

303 .A, the applicant shall also 

I. Provide by certified mail a complete copy of the application and public 

notice to the Department's field or district office nearest the source; and 

2. Provide by certified mail a copy of the public notice to the appropriate 

federal land manager if the source will locate within 50 km of the boundary of a Class I area. [I 1-

30-95] 

B. All applications shall be filed on forms furnished by the Department and shall 

include 

The applicant's name and address, the person to contact regarding the 

application, and the name and address of the new source or modification; 

2. The date of the application; 

3. A description of the new facility or modification including all operations 

effecting air emissions, 

4. The anticipated operating schedule; 

20 NMAC 2.72 35 11-14-98 
5. A map such as a 7. 5 minute United States Geological Survey 

Topographic Quadrangle showing the location of the stationary source; 

6. The Universal Transverse Mercator (UTM) horizontal and vertical 

coordinate( s) for the facility; 

7. A plot plan showing the location of emission units with respect to the 

plant's property boundaries and the dimensions of any buildings, terrain, or obstructions which 

may cause emissions to be downwashed; 

8. A detailed description of any air pollution control device or method to be 

utilized, including the basis for the estimated control efficiency; 

9. The stack and exhaust gas parameters for all emission points, including 

calculations and manufacturer's or supplier's data which documents the emission rates and exhaust 

gas parameters; 

I 0. A comprehensive regulatory compliance review, including all pertinent 

data and calculations, for each applicable new source performance standard, such as 40 CFR 60, 

Sub GG - Standards of Performance for Stationary Gas Turbines; 

II. Documentation of the manufacturer's or supplier's recommended 

maintenance schedules and procedures for all air pollution control equipment, 

12 A compliance demonstration based on US EPA approved modeling or 

analysis, including all pertinent calculations and computations, for all applicable requirements of 

Part 72, Subpart III for any facility electing to obtain a permit under this Subpart; 

13. Documentary proof that the requirements of Part 72, Sections 302.A.l 

and 302.A.2 have been satisfied; 

14. An application signed under oath or affirmation by the operator, the 

owner. or an authorized representative, certifYing to the best of his or her knowledge the truth of 

all information submitted; and 

IS. 

reqUJre [ 11-30-95] 

Any other relevant information as the Department may reasonably 

303. PUBLIC NOTICE AND PARTICIPATION: 

A Applications qualifYing under the following Sections of Subpart lil are not 

subject to Section 303.8 and 303.C2: 

20 NMAC 2.72 36 I 1-14-98 
I. Section 30l.D.l and 30l.D.2. [11-30-95) 

B The applicant shall 

I . Publish notice once in a newspaper of general circulation in the area 

closest to the location of the source. This notice shall appear in either the classified or legal 

advertisements section of the newspaper Notice shall be published in accordance with 

Department guidance documents and must include 

a. The applicant's name and address; 

b. The address and phone number of the Department's Air Quality 

Bureau in Santa Fe, and the address of the field or district office where a copy of the application 

will be sent as required in Part 72. Section 302 A 

c. The location and a brief description of the source; 

d. A summary of estimated emissions and ambient impact for each 

regulated contaminant for the entire facility; 

e. Where required in Subpart III, the applicant's public notice shall 

contain the following statement: "Any comments submitted on this permit application should 

address the relevant requirements of state and federal air quality regulations and the Federal Clean 

Air Act and the state Air Quality Control Act. The comments shall be submitted to the 

Department's Air Quality Bureau in Santa Fe within thirty (30) days following the date of 

publication", 

f Any other information required by the Department; and 

2. Post the notice at the proposed or existing facility entrance on the 

property on which the facility is, or is proposed to be located prior to submittal of the application 

and remaining posted until the Department takes final action on the permit. [11-30-95) 

C The Department shall 

I. Make available for public inspection the permit application. Copies of 

any permit application, except those portions of which may be determined as confidential in 

accordance with Part I - General Provisions, will be supplied upon written request and payment 

of reasonable costs. [ 11-30-95) 

2 Allow all interested persons thirty (30) days from the date of publication 

of the applicant's public notice in a newspaper of general circulation, to submit written comments 

or evidence on the application. [ 11-30-95) 

20 NMAC 2.72 37 11-14-98 
304. PERMIT DECISIONS: 

A. The Department shall within thirty (30) days after its receipt of an application for 

a permit or permit revision review such application for completeness If the application is judged 

complete, a certified letter to that effect shall be sent to the applicant. If the application is judged 

incomplete, a certified letter shall be sent to the applicant stating what additional information or 

points of clarification are necessary to judge the application complete. If the application is judged 

complete but no permit is required, a certified letter shall be sent to the applicant informing the 

applicant of the determination. [ 11-30-95) 

B The Department shall either grant, grant subject to conditions, or deny the permit 

or permit revision on those applications, as soon as practicable after the Department deems the 

application complete but not to exceed the times specified below: 

I. For applications qualifYing under the Section 30 l.D.I or 30 l.D.2, within 

thirty (30) days; 

2. For all other applications, within sixty (60) days, or ninety (90) days if 

there is a hearing under Part 72, Section 206 [ 11-30-95) 

305. GENERAL REQUIREMENTS: All sources permitted pursuant to Part 72, Subpart 

III shall operate in compliance with the following conditions 

A. A copy of the most recent permit issued by the Department shall be made 

available to Department personnel for inspection upon request If the permit is not kept at the 

plant location, a notice at the plant site shall be located in a conspicuous place stating the facility 

name and ownership, air quality permit number, and the address and phone number of the 

Department in Santa Fe; 

B. The source shall operate in compliance with all applicable state and federal 

regulations, including federal new source performance standards incorporated by Part 77 and 

permit conditions; 

C The owner or operator of the source shall be required to conduct such 

performance tests as specified by the Department to determine compliance with emission 

limitations or technology requirements as specified in an applicable regulation or permit condition. 

Specific schedules and requirements will be listed in Section 306 for each source class and/or in 

the permit. Performance test requirements may be reimposed on a source as necessary if 

inspections of the source or other information available to the Department, indicate 

noncompliance, or the previous test showed noncompliance or was technically unsatisfactory. In 

such cases, the Department may reimpose such tests as frequently as necessary until compliance is 

achieved and testing is performed in a manner technically satisfactory to the Department The 

owner or operator shall: 

- 20 NMAC 2.72 38 11-14-98 
I. Arrange a pretest meeting with the Department at least two weeks prior 

to the anticipated test date for all tests: 

2 NotiJY the Department at least thirty (30) days prior to the date and time 

of performance testing, and provide the Department an opportunity to have an observer present 

during testing: 

3. Conduct performance tests in accordance with methods and procedures 

specified by the Department. Whenever the requirements of 40 CFR 60 apply, test methods must 

be utilized as specified in those regulations: 

4. Submit a written report to the Department of the results of the test within 

thirty (30) days from the test date: and 

D The owner or operator using a catalytic converter to meet the requirements of 

Subpart Ill shall satisfactorily test the reduction efficiency across the catalyst bed and report the 

results of the test to the Department according to the permit conditions, within ninety (90) days 

following initial start-up and on a quarterly basis thereafter, unless an alternative testing schedule 

is specified by the Department. The tests shall be conducted in accordance with the requirements 

of Part 72, Section 305 C and as required in the permit, except that the requirements of Section 

305.C.! and 2 shall be waived unless the Department specifically requests a pretest meeting or 

notification of the next test date. [ 11-30-95) 

306. SOURCE CLASS REQUIREMENTS: 

A. In addition to the general conditions of Section 305, each permitted source listed 

in Table 2 shall also comply with the applicable source class requirements below 

I. Requirements for source class category I - reciprocating internal 

combustion (!C) engines 

a. Gas fuel shall be produced natural gas, sweet natural gas, liquid 

petroleum gas, or fuel gas. No gas fuel shall contain more than 0.1 grain of total sulfur per dry 

standard cubic foot. Liquid fuel shall be first run refinery grade diesel or No. 2 fuel oil that is not 

a blend containing waste oils or solvents and contains less than 0.3% by weight sulfur: 

b. Within ninety (90) days after initial start-up of the source, the 

owner or operator shall conduct NO, and carbon monoxide (CO) performance tests on one or 

more engines (turbines) at the facility to ensure the facility is in compliance with Part 72, Subpart 

III and permit requirements, including emission limits and any applicable pollution control device 

reduction efficiency requirements for NO, The Department shall specifically identiJY in the 

permit eacnengine or turbine subject to initial performance testing requirements. Tests shall be 

conducted in accordance with the requirements of Section 305 C: 

20 NMAC 2.72 39 11-14-98 
c Any engine which operates with a non-selective catalytic 

converter shall comply with the following requirements 

(I) Any spark ignited gas-fired or any compression ignited 

dual fuel-fired engine shall be equipped and operated with an automatic air-fuel ro•'-

controller which maintains AFR in the range required to minimi7P "'" 

recommended by the manufacturer: and 

(2) The owner or ope1 

demonstrate that the manufacturer's or supplier's recomme 

including replacement of the oxygen sensor as necessary fo 

cleaning, regeneration, and/or replacement of catalyst(s) as 

reduction efficiencies across the catalyst bed that are specifi, 

B. Requirements for source class category 2 - t 

The source must comply with Section 

307- 399 (RESERVED( 

SUBPART IV- PERMITS FOR TOXIC AIR POLLUTANT EMISSIONS 

400 PREAMBLE: The Board is concerned about the increasingly common presence of 

toxic air pollutants in the ambient air. The Board believes that the best approach to regulating 

sources of toxic air pollutants over the long term is to set ambient standards for each pollutant of 

concern. However, because of financial constraints, the unavailability of sufficient information to 

establish such ambient standards, the time necessary to establish such standards for the 

contaminants identified as toxic air pollutants and because the Board wishes to implement a toxic 

air pollutant permitting program as soon as possible, the Board has adopted a source-by-source 

permit -based approach for the present. 

Under this permit-based approach, the Board has given limited authority to the 

Department to use factors of the OELs (occupational exposure limits) in evaluating permit 

applications. The Board recognizes that the use ofOELs, or factors of them, as ambient air 

standards would be inappropriate: therefore, the Board has authorized their use for screening 

purposes only. This authorization is not intended to represent, and should not be interpreted as, a 

finding by the Board that these factors are suitable for determining safe or unsafe ambient air concentrations 

Various respected groups, such as the American Conference of Governmental Industrial 

Hygienists (ACGIH), may develop ambient air exposure guidelines in the future Development of 

ambient air guidelines by groups such as this could be the basis for developing toxic air pollutant 

20 NMAC 2. 72 40 11-14-98 
ambient air standards. The Board also notes that the Department currently is developing an 

emissions inventory of toxic air pollutants. An emissions inventory may identifY toxic air 

pollutants that are of particular concern in New Mexico. The Board believes that efforts like 

these may facilitate the development of toxic air pollutant ambient air standards. 

For these reasons, the Board requests the Department to prepare and present a report to 

the Board within five years of the effective date of the toxic air pollutant permitting requirements. 

The report shall review and evaluate the implementation of the toxic air pollutant permitting 

program, summarize the results of the toxic air pollutant inventory gathered pursuant to Part 81, 

and review scientific and technical progress made in the area of toxic air pollutants that might 

facilitate the development of toxic air pollutant ambient air standards. The Board shall schedule a 

discussion of this report at a regular monthly meeting within three months of the publication of 

this report. [ ll-30-95] 

40 l. DEFINITIONS: In addition to the definitions in Subpart I, the following definitions 

apply to this Subpart [ Il-30-95] 

A "Best available control technology" means an emission limitation based on the 

maximum degree of reduction in emissions of each contaminant subject to this Part which the 

Secretary (or the Board), on a case-by-case basis, taking into consideration the cost of achieving 

such emission reduction, and any non-air quality health and environmental impacts resulting from 

the use of such technology, determines is achievable for the source, through application of 

measures, processes, methods, systems, or techniques including, but not limited to, measures 

which 

I. Reduce the volume of such pollutants through process changes, 

substitutions of materials, or other modifications, or 

2. Enclose systems or processes to eliminate emissions, or 

3. Collect, capture or treat such pollutants when released from a process, 

stack, storage, or fugitive emission point. [ 11-30-95] 

B. "Existing source" means any source, the construction or modification of which 

was commenced on or before December 31, 1988. [11-30-95] 

C. "Fixed capital costs" means that capital needed to provide all the depreciable 

components. [ 11-30-95] 

D. "New source" means any source, the construction of which is commenced after 

December 3 I, 1988. The term does not include any new source which is integrally related with 

and integrally connected to the process of an existing source. The term includes the 

reconstruction of an existing source. [ 11-30-95] 

20 NMAC 2.72 41 11-14-?8 
E. "Occupational Exposure Limit" or "OEL" means the eight-hour time 

weighted average concentration specified for workroom air in "Threshold Limit Values and 

Biological Exposure Indices for 1986-1987"as adopted by the American Conference of 

Governmental Industrial Hygienists, or for compounds not assigned an OEL in that document, the 

minimum detection limit specified in the National Institute for Occupational Safety and Health 

"Manual of Analytical Methods", Third Edition. [11-30-95) 

F. "Oil and gas production facilities" means facilities for the exploration, 

development, production, treatment, separation, storage, transport, and sale of unrefined 

hydrocarbons, natural gas liquids, and CO, (e.g., major SIC group 13, oil and gas extraction, SIC 

industry group no. 4612, crude, petroleum, pipeline and SIC industry no. 4922, natural gas 

transmission). Natural gas processing plants and refineries are not included for purposes of this 

definition. [ 11-30-95) 

G. "Reconstruction" means a modification which results in the replacement of the 

components or addition of integrally related equipment to an existing source to such an extent 

that the fixed capital cost of the new components or equipment exceeds 50 percent of the fixed 

capital cost that would be required to construct a comparable entirely new facility [ 11-30-95] 

H 

[ 11-30-95) 

"Toxic air pollutant" means any air contaminant in Section 502 of this Part. 

402. APPLICABILITY: 

A All the requirements of this Subpart for toxic air pollutants shall supplement 

other provisions of this Part [11-30-95] 

B. A permit must be obtained from the Department by any person prior to the 

construction or modification of a new source which has total potential emissions of a toxic air 

pollutant into the ambient air that exceed the emissi·on level in pounds per hour specified in 

Section 502, and one or more of the following conditions are met: 

I. The toxic air pollutant is listed under applicable primary and secondary 

SIC codes appropriate for the source in the US EPA SIC/Pollutant Index (Appendix Bin Part 

81 ); or 

2. The toxic air pollutant is known by the owner or operator to be emitted 

into the ambient air because of: 

a. Information from material safety data sheets and hazard labelling 

required under the OSHA Hazard Communications Standard 29 CFR 1910.1200, or 

20 NMAC 2. 72 42 11-14-98 
b. Information from reports required under the Federal Emergency 

Planning and Community Right-to-Know Act of 1986, P L 99-499, Title III, Sections 300-330, 

or 

c Other information reasonably available to the owner or operator 

based on the source's obligations under other regulatory programs; or 

3. The toxic air pollutant is identified by the Department on or before the 

date the application is determined to be complete, as likely to be emitted from a source. The 

Department shall also provide the owner or operator a reasonable basis to support the belief that 

the source will emit such toxic air pollutant. [ 11-30-95] 

C The following classes of sources are exempt from the permitting requirements for 

toxic air pollutants 

Gasoline Service Stations SIC No. 5441 

2. Automotive Repair Shops- SIC No. 753 

3. Laundry, Cleaning, and Garment Services- SIC No. 721 

4. Domestic Woodstoves and Fireplaces 

5 Oil and Gas Production Facilities 

6. Agricultural Production- Crops, SIC No 0 I 

7 Agricultural Production- Livestock, SIC No. 02 

8. Agricultural Services- SIC No 07 

9. Containers, such as tanks, barrels, drums, cans and buckets, unless 

equipped with a vent that emits or may emit any toxic air pollutant, which are used in connection 

with the operation, maintenance or repair of a stationary source. 

10. Non-process fugitive emissions of toxic air pollutants from stationary 

sources, such as construction sites, unpaved roads, coal piles, tailings piles, waste piles, and fuel 

and ash handling operations. [ 11-30-95] 

D An exemption or exclusion from the permitting requirements for toxic air 

pollutants does not relieve a source from any other requirements in this Part. [ 11-30-95] 

403 CONTENTS OF APPLICATION: 

211 NMAC 2. 72 43 11-14-98 
A In addition to the requirements in Section 203, a permit application for the 

emission of a toxic air pollutant shall identifY all toxic air pollutants that may be emitted in excess 

of the screening level (specified in pounds per hour) in Section 502 and provide air quality 

modeling, in accordance with methods approved by the US EPA or the Department, that 

estimates ambient concentrations that would be caused by the proposed emissions. The modeling 

for the toxic air pollutants will include available emissions supplied by the Department from 

registration and permitting information from all registered or permitted sources in the area ofthe 

source being permitted. [ 11-30-95] 

B. If the modeling shows that the eight-hour average ambient concentration of the 

toxic air pollutant exceeds one-one hundredth of the OEL and the toxic air pollutant is not 

identified as a known or suspected human carcinogen in Section 502, Table B, the permit 

application shall include a health assessment for the toxic air pollutant under consideration. The 

assessment shall include consideration of the following 

I. Source to potential receptor data and modeling; 

2. Relevant environmental pathway and effects data; 

3. Available health effects data such as: 

a. Functional diseases; 

b. Mutagenicity data as an index of genotoxic effects including 

heritable diseases; 

c Reproductive effects data; 

d. Other diseases, and 

4 An integrated assessment of the human health effects for projected 

exposures from the applicant's facility. The assessment should use existing relevant data obtained 

from epidemiological studies, controlled human exposure studies, laboratory animal studies, and 

studies using tissues and cells. [ 11-30-95] 

C. If the toxic air pollutant is identified as a known or suspected human carcinogen 

in Section 502 and air quality modeling shows that the eight-hour average concentration of the 

toxic air pollutant exceeds one-one hundredth of the OEL or the minimum detection level in 

Section 502, the permit application shall include information necessary to demonstrate the source 

will install the best available control technology to control that pollutant. [ 11-30-95] 

404. PUBLIC NOTICE AND PARTICIPATION: In addition to the requirements of 

Section 206 [ 11-30-95] 

20NMAC 2 72 44 11-14-98 
A The Department shall meet with the applicant during the permit application 

process, prior to declaring the application complete, to discuss the need for additional data and 

information not initially submitted by the applicant; and [ 11-30-95) 

B The Department shall promptly advise the applicant of all medical or other 

scientific evidence the Department uses to evaluate the health effects of the toxic air pollutant 

emissions and make available to the applicant in a timely manner all information, including all 

previous decisions on the toxic air pollutant in question. [ 11-30-95) 

405. PERMIT DECISIONS: In making its decisions, the Department shall consider 

emissions after controL [11-30-95) 

A Ambient concentrations not exceeding one-one hundredth of the OEL or the 

minimum detection level for compounds without an OEL: 

If the Department finds that the eight-hour average concentration of the toxic air 

pollutant in the ambient air does not exceed one-one hundredth of the OEL, or for compounds 

without an OEL, the minimum detection levels as shown in Section 502, the Department shall 

grant the permit. The administrative screening level of one-one hundredth the OEL and the OEL 

shall not be a basis for denying a permit and shall not constitute an ambient air quality standard. 

[ 11-30-95) 

B. Ambient concentrations exceeding one-one hundredth of the OEL or the 

minimum detection level for compounds without an OEL for substances identified as known or 

suspected human carcinogens in Section 502: 

If the toxic air pollutant being considered is identified as a known or suspected 

carcinogen in Section 502, Table B, and the Department finds the eight-hour concentration of the 

toxic air pollutant in the ambient air exceeds one-one hundredth of the OEL, or for compounds 

without an OEL, the minimum detection leveL the Department shall grant the permit if the 

applicant implements the best available control technology to control that pollutant. [ 11-30-95) 

C Ambient concentrations exceeding one-one hundredth of the OEL for substances 

not identified as carcinogens in Section 502 

I. If the applicant has been required to prepare a health assessment under 

Section 403.B, the Department shall prepare a Summary Review Statement (SRS) which indicates 

the Department's opinion of the adequacy of the applicant's health assessment. The SRS will 

include a summary recommendation on whether the issuance of a permit will or will not with 

reasonable probability injure human health. 

· --~ 2. If the applicant does not agree with the recommendation contained in the 

SRS, the applicant's assessment and the SRS will be provided to the Air Toxics Scientific 

20 NMAC 2.72 45 11-14-98 
Advisory Committee (ATSAC). The ATSAC will be composed of five members appointed by the 

Secretary. They will include physicians, toxicologists, industrial hygienists, or others 

knowledgeable of the potential health and environmental effects of air pollution. The committee 

will include at least one member nominated by the applicant. The A TSAC will review the 

applicant's assessment and the SRS in a public meeting. The ATSAC shall provide a letter to the 

Secretary stating: (I) whether the submitted documents provide a scientifically adequate basis to 

determine whether the proposed source will with reasonable probability injure human health and 

(2), if the documents do provide an adequate basis, whether the proposed source will with 

reasonable probability injure human health. If the documents are scientifically inadequate, the 

AT SAC shall return them to the Department and indicate their inadequacies. 

3. The Department will make a final decision on the issuance of the permit 

after consideration of the following factors: 

a. The nature of the toxic air pollutant and the size, susceptibility, 

and proximity of the human population; 

b. The pathways of human exposure (e.g., ingestion, inhalation, skin 

absorption), 

c The short term and long term health effects associated with the 

toxic air pollutant at levels of exposure commensurate with the anticipated exposure level; 

d. Existing epidemiological data on health effects associated with the 

anticipated levels of exposure; 

e. The character of the land use of the predicted area of impact (e.g., 

residential, industrial, and recreational); and 

f The scientific adequacy of the health and environmental 

assessment submitted by the applicant and the recommendation of the A TSAC. The Department 

shall not rely on the OEL or on the administrative screening level of one-one hundredth the OEL, 

and it shall not be bound by prior permit decisions when considering pending applications. 

4. The Department shall deny any application for a permit evaluated under 

Section 405.C if the source will emit a toxic air pollutant in such quantities and duration as may 

with reasonable probability injure human health. [11-30-95, 11-14-98] 

D. The Department shall document, in the administrative record, all processes, facts, 

and reasoning relied on in making the permit decision, including citations to the relevant technical 

data, publications, and expert opinions considered. 

20 NMAC 2.72 46 11-14-98 
1. The final deliberations of the A TSAC shall be open to the public. Except 

for requests by members of the A TSAC for input from the applicant or Department, no other 

comments from the applicant. Department, or audience shall be allowed during final deliberations 

2. Prior to a final decision, the ATSAC members may communicate among 

themselves in order to facilitate the evaluation process. However, all A TSAC members shall be 

apprised of such communications. 

3. Prior to a final decision, the A TSAC members may also communicate 

with the Department and applicant in order to clarify information or secure additional information 

concerning the applicant's health assessment or the Department's SRS. The Department, 

applicant, and all A TSAC members shall be apprised of such communication. [Rn, 20 NMAC 

2 72405 CS, 11-14-98] 

406 - 499. [RESERVED) 

20 NMAC 2.72 47 11-14-98 
SUBPART V- APPENDIX 

500 TABLE I- SIGNIFICANT AMBIENT CONCENTRATIONS 

Pollutant Averaging Time 

Total Suspended Particulate 1.0 ug/m3 (Annual) 

5.0 ug/m3 (24-hour) 

PMIO I 0 ug/m3 (Annual) 

50 ug/m3 (24-hour) 

Sulfur Dioxide I 0 ug/m3 (Annual) 

5.0 ug/m3 (24-hour) 

25.0 ug/m3 (3-hour) 

Hydrogen Sulfide 1.0 ug/m3 ( 1-hour) 

5.0 ug/m3 (1/2-hour) 

Carbon Monoxide 0.5 mg/m3 (8-hour) 

2.0 mg/m3 ( 1-hour) 

Nitrogen Dioxide I 0 ug/m3 (Annual) 

5.0 ug/m3 (24-hour) 

Non-Methane Hydrocarbons 5.0 ug/m3 (3-hour) 

Lead 0 03ug/m3 (3-month) 

[11-30-95] 

501. TABLE 2- PERMIT STREAMLINING SOURCE CLASS CATEGORIES 

I. Reciprocating internal combustion engines including portable or temporary engines 

2. Turbines 

[11-30-95] 

20 NMAC 2.72 48 11-14-98 
502 TOXIC AIR POLLUTANTS AND EMISSIONS: 

Table A- Noncarcinogens 

Emissions 

SUBSTANCE OEL in pounds 

mglm' per hour 

Acetic acid 25.0 1.67 

Acetic anhydride 20.0 1.33 

Acetylene dichloride, See I ,2-Dichloroethylene 

Acetylene tetrabromide 15.0 1.00 

Acetylsalicylic acid 5.00 0.333 

Aldrin 0 25 0.0167 

Allyl alcohol 5.00 0.333 

Allyl glycidol ether 220 1.47 

Allyl propyl disulfide 12 0 0.800 

Aluminum 

metal & oxide 10.0 0.667 

pyro powders 5.00 0.333 

welding fumes 5.00 0.333 

soluble salts 2.00 0.133 

alkyls not otherwise classified 2.00 0.133 

2-Aminoethanol, See Ethanolamine 

2-Aminopyridine 2.00 0 133 

3-Amino I, 2, 4-triazole, See Amitrole 

Amitrole 0.200 0.0133 

Ammonia. 18.0 1.20 

Ammonium chloride fume 10.0 0.667 

Ammonium sulfamate 10.0 0.667 

n-Amyl acetate 530 35.3 

Sec-Amyl acetate . 665 44 3 

Aniline homologues . 10.0 0.667 

Anisidine (p-isomer) 0.500 0.0333 

Antimony as Sb 0.500 0.0333 

ANTU. 0.300 0.0200 

Asphalt (petroleum) fumes . 5.00 0.333 

Atrazine. 5.00 0.333 

Azinphos-mehtyl 0.200 0.0133 

Barium, soluble compounds, as Ba . 0.500 0.0333 

Benomyl 1000 0.667 

20 NMAC 2.72 49 11-14-98 
SUBSTANCE 

Benzoyl peroxide . 

Bismuth telluride 

Se-doped . 

Borates, tetra, sodium salts 

anhydrous 

decahydrate . 

pentahydrate 

Boron oxide 

Boron tribromide . 

Boron trifluoride 

Bromacil 

Bromine 

Bromine pentafluoride 

Bromochloromethane, see Chlorobromomethane 

Butanethiol, see Butyl mercaptan 

2-Butoxyethanol 

n-Butyl acetate 

sec-Butyl acetate 

tert-Butyl acetate . 

Butyl acrylate 

n-Butyl alcohol 

Sec-Butyl alcohol 

tert-Butyl alcohol . 

Butylamine 

tert-Butyl chromate, as CrO, 

n-Butyl glycidol ether (BGE) . 

n-Butyllactate . 

Butyl mercaptan 

o-sec-Butylphenol 

p-tert -Butyltoluene 

Cadmium Dusts as Cd 

fume as Cd 

Calcium hydroxide . 

Calcium oxide 

Camphor, synthetic 

Captafol 

Carbofuran 

Carbon black 

Carbon tetrabromide 

- 20 NMAC 2.72 so 

OEL 

mglm' 

5.00 

10.0 

5.00 

100 

5.00 

100 

10.0 

10.0 

3.00 

10.0 

0.700 

0.700 

120 

710 

950 

950 

55 0 

ISO 

305 

300 

15.0 

0 100 

135 

ISO 

30.0 

60 

0.0500 

00500 

5.00 

2.00 

12.0 

0.100 

0.100 

3.50 

140 

Emissions 

in pounds 

per hour 

0.333 

0.667 

0.333 

0.0667 

0.333 

0.0667 

0.667 

0.667 

0.200 

0.667 

0 0467 

0.0467 

8.00 

47.3 

63.3 

63.3 

3.67 

10.0 

20.3 

20.0 

1.00 

0.00667 

9.00 

25.0 

0.10 

2.00 

4.00 

0.00333 

0.00333 

0.333 

0.133 

0.800 

0.00667 

0.00667 

0.233 

0.0933 

11-14-98 
SUBSTANCE 

Carbonyl fluoride . 

Cesium hydroxide 

Chlorinated diphenyl oxide 

Chlorine dioxide 

Chlorine trifluoride 

Chloroacetaldehyde . 

a-Chloroacetophenone . 

Chloroacetyl chloride . 

0-Chlorobenzylidene malononitrile 

Chlorobromomethane 

2-Chloro-1 ,3-butadiene, see B-Chloroprene 

Chlorodiphenyl ( 42% chlorine) 

Chlorodiphenyl (54% chlorine) 

2-Chloroethanol, see Ethylene chlorohydrin 

1-Chloro-1-nitropropane 

Chloropicrin 

o-Chlorostyrene . 

o-Chlorotoluene 

2-Chloro-6-(trichloromethyl)pyridine, see Nitrapyrin 

Chlorpyrifos 

Chromium metal 

Clopidol 

Cobalt as Co 

metal, dust & fume 

Copper 

fume 

dusts & mists, as Cu 

Cotton dust, raw 

Crotonaldehyde . 

Crufomate 

Cyanamide. 

Cyanogen 

Cyanogen chloride . 

Cyclohexane 

Cyclohexanol . 

Cyclohexanone 

Cyclohexene 

Cyclohexylamine 

Cyclonite . 

20 NMAC 2. 72 5 I 

OEL 

mg/m3 

5.00 

2.00 

0.500 

0.300 

0400 

3.00 

0.300 

0.200 

0400 

1050 

1.00 

0.500 

10.0 

0.700 

............ 285 

250 

0.200 

0.500 

10.0 

0 100 

0.100 

0.200 

1.00 

0.200 

6.00 

5.00 

2.00 

20.0 

0.600 

1050 

200 

100 

1015 

40.0 

1.50 

Emissions 

in pounds 

per hour 

0.333 

0 133 

0.0333 

0.0200 

0.0267 

0.200 

00200 

0 0133 

0.0267 

70.0 

0.0667 

0.033 

0.667 

0.0467 

19.0 

16.7 

0 0133 

0.0333 

0 667 

0.00667 

0.00667 

0.0133 

0.0667 

0.0133 

0400 

0.333 

0 133 

1.33 

0 0400 

70.0 

13.3 

6.67 

67.7 

2.67 

0.100 

11-14-98 
SUBSTANCE 

Cyclopentadiene 

Cyhexatin 

DDT (Dichlorodiphenyl trichloroethane) 

Decaborane 

Demeton 

Diacetone alcohol 

I ,2-Diaminoethane See Ethylenediamine 

Diazinon 

Diborane 

2-N-Dibutylaminoethanol 

Dibutyl phosphate 

Dichloroacetylene 

a-Dichlorobenzene 

I ,3-Dichloro-5,5-dimethyl hydantoin 

I ,2-Dichloroethylene 

Dichlorotluoromethane 

I, 1-Dichloro-1-nitroethane 

2,2-Dichloropropionic acid 

Dicrotophos 

Dicyclopentadiene 

Dicyclopentadienyl iron 

Dieldrin 

Diethylamine 

2-Diethylaminoethanol 

Diethylene triamine 

Diethyl ether, see Ethyl ether 

Diethyl Ketone 

Diethyl phthalate 

Ditluorodibromomethane .. 

Diglycidal ether (DGE) 

Diisobutyl ketone . 

Diisopropylamine . 

Dimethyl acetamide 

Dimethylamine . 

Dimethylaminobenzene, see Xylidene 

Dimethyl- I ,2-dibromo-2-dichloroethyl phospate, see Naled 

2,6-Dimethyl-4-heptanone, see Diisobutyl ketone 

Dinitolmide 

Dinitrobenzene (all isomers) 

20 NMAC 2.72 52 

OEL 

mglm' 

200 

5.00 

1.00 

0.300 

0.100 

240 

0.100 

0.100 

14.0 

5.00 

0.400 

300 

0.200 

790 

40.0 

10.0 

6.00 

0.250 

300 

10.0 

0.250 

30.0 

50.0 

4.00 

705 

5.00 

860 

0.500 

250 

20.0 

35.0 

18.0 

5.00 

1.00 

Emissions 

in pounds 

per hour 

13.3 

0.333 

0.0667 

0.0200 

0.00667 

16.0 

0.00667 

0.00667 

0.933 

0.333 

0.0267 

20.0 

0.0133 

52.7 

2.67 

0.667 

0.400 

0.0167 

2.00 

0.667 

0.167 

2.00 

3.33 

0.267 

47.0 

0.333 

57.3 

0.0333 

16.7 

133 

2.33 

1.20 

0.333 

0.0667 

11-14-98 
SUBSTANCE 

3,5-Dinitro-o-toluamide, see Dinitolmide 

Dioxathion . 

Diphenylamine . 

Diphenylmethane diisocyanate, see Methylene bisphenyl isocyanate 

Dipropylene glycol methyl ether 

Dipropyl ketone . 

Diquat 

Disulfiram 

Disulfoton 

2,6-Ditert butyl-p-cresol 

Diuron. 

Divinyl benzene . 

Endosulfan 

Endrin 

Enzymes, see Subtilisins 

EPN 

2,3-Epoxy-1-propanol, see Glycidol 

Ethanethiol, see Ethyl mercaptan 

Ethanolamine . 

Ethion 

Ethyl acetate 

Ethylamine 

Ethyl amyl ketone 

Ethyl bromide 

Ethyl butyl ketone 

Ethylene chlorohydrin 

Ethylenediamine 

Ethyl ether .. 

Ethy formate 

Ethylidene norbornene . 

Ethyl mercaptan . 

N-Ethylmorpholine 

Ethyl silicate 

F enamiphos . 

Fensulfothion . 

Fenthion 

Ferbam 

Ferrovanadium dust . 

Fluorides, as F 

20 NMAC 2. 72 53 

OEL 

mglm' 

0.200 

10.0 

600 

235 

0.500 

2.00 

0.100 

10.0 

10.0 

50.0 

0.100 

0.100 

0.500 

8.0 

0.400 

1400 

18.0 

130 

890 

230 

3.00 

25.0 

1200 

300 

25.0 

1.00 

23.0 

85.0 

0 100 

0.100 

0.200 

10.0 

1.00 

2 so 

Emissions 

in pounds 

per hour 

0 0133 

0667 

40.0 

15.7 

0.0333 

0.133 

0.00667 

0.667 

0.667 

3.33 

0 00667 

0 00667 

0.0333 

0.533 

0.0267 

93.3 

1.20 

8.67 

59.3 

15.3 

0.200 

1.67 

80.0 

20.0 

1.67 

0 0667 

1.53 

5.67 

0.00667 

0.00667 

0.0133 

0.667 

0.0667 

0 167 

11-14-98 
SUBSTANCE 

Fluorine . 

Fonofos ... 

Formamide 

Formic acid 

Furfural 

Furfuryl alcohol 

Gasoline 

Germanium tetrahydride 

Glutaraldehyde 

Glycidol. 

Hafnium 

2-Heptanone, see Methyl n-amyl ketone 

3-Heptanone, see Ethyl butyl ketone 

Hexachloronaphthalene 

Hexfluoroacetone 

2-Hexanone, see Methyl n-butyl ketone 

sec-Hexyl acetate ... 

Hexylene glycol . 

Hydrogenated terphenyls . 

Hydrogen bromide 

Hydrogen peroxide 

4-Hydroxy-4-Methyl-2-pentanone, see Diacetone alcohol 

2-Hydroxypropyl acrylate 

lndene 

Indium & compounds as In 

Iodine 

Iodoform . 

Iron oxide fume (Fe20,) as Fe 

Iron pentacarbonyl as Fe 

Iron salts, soluble, as Fe . 

Isoamyl acetate 

Isoamyl alcohol 

Isobutyl acetate 

Isobutyl alcohol 

I soocyt I alcohol 

lsophorone diisocyanate 

lsopropoxyethanol . 

Isopropyl acetate . 

Isopropyl alcohol 

20 NMAC 2. 72 54 

OEL 

mglm' 

2.00 

0.100 

30 0 

9 00 

8.00 

40.0 

900 

0.600 

0.700 

75.0 

0.500 

0.200 

0.700 

300 

125 

5.00 

10.0 

1.50 

3.00 

45.0 

0.100 

100 

10 0 

5 00 

0.800 

100 

525 

360 

700 

ISO 

270 

0.0900 

lOS 

950 

980 

Emissions 

in pounds 

per hour 

0 133 

0.00667 

200 

0.600 

0.533 

2.67 

60.0 

0.0400 

0.0467 

5.00 

0.033 

0.0133 

0.0467 

20.0 

8.33 

0.333 

0.667 

0.100 

0.200 

3.00 

0.00667 

0.0667 

0.667 

0.333 

0 0533 

0.0667 

35.0 

24.0 

46.7 

10.0 

180 

0 00600 

7.00 

63.3 

65.3 

11-14-98 
Emissions 

SUBSTANCE OEL in pounds 

mg/m3 per hour 

I sopropylamine 12.0 0.800 

N-Isopropylaniline . 10.0 0.667 

Isopropyl ether 1050 70.0 

Isopropyl glycidyl ether (IGE) 240 16.0 

Ketene. 0.900 0.0600 

Lithium hydride . 0.0250 00167 

Magnesium oxide fume 10.0 0 667 

Malathion 10.0 0.667 

Manganese as Mn 

dust 5.00 0.333 

fume 1.00 0.0667 

Mesityl oxide . 60 4.00 

Methacrylic acid 70.0 4.67 

Methanethiol, see Methyl mercaptan 

Methomyl 2.50 0.167 

4-Methoxyphenol 5.00 0.333 

Methyl acetate . 610 40.7 

Methyl acrylate 35.0 2.33 

Methylacrylonitrile .. 3.00 0.200 

Methylamine 12.0 0 800 

Methyl amyl alcohol, see Methyl isobutyl carbinol 

Methyl n-amyl ketone 235 15.7 

N-Methyl aniline 2.00 0 133 

Methyl n-butyl ketone 20.0 1.33 

Methyl 2-cyanoacrylate 8.00 0.533 

Methylcyclohexanol . 235 15.7 

o-Methylcyclohexanone . 230 15.3 

Methyl demeton . 0.500 0.033 

Methylene bisphenyl isocyanate (MDI) 0.200 0.0133 

Methylene bis( 4-cyclohexylisocyanate) 0.110 0.00733 

Methyl ethyl ketone peroxide . 1.50 0.100 

Methyl formate 250 16.7 

5-Methyl-3-heptanone, see Ethyl amyl ketone 

Methyl isoamyl ketone . 240 16.0 

Methyl isobutyl carbinol . 100 6.67 

Methyl isopropyl ketone 705 47.0 

Methyl mercaptan 1.00 0.0667 

Methyl parathion 0.200 0.0133 

Methyl propyl ketone . 700 46.7 

-

- 20 NMAC 2.72 55 11-14-98 
Emissions 

SUBSTANCE OEL in pounds 

mglm3 per hour 

Methyl silicate 6.00 0.400 

a-Methyl styrene 240 16.0 

Metribuzin 5.00 0.333 

Mevinphos. 0.100 0.00667 

Molybdenum as Mo 

soluble compounds 5.00 0.333 

insoluble compounds 10.0 0.667 

Moncrotophos . 0.250 0.0167 

Morpholine 70.0 4.67 

Naled .. 3.00 0.2 

Nickel Metal 1.00 0.0667 

Nicotine. 0.500 0.0333 

Nitrapyrin 10.0 0.667 

Nitric acid 5.00 0.333 

p-Nitroaniline 3.00 0.200 

p-Nitrochlorobenzene 3.00 0.200 

Nitroethane 310 20.7 

Nitrogen trifluoride 300 2.00 

Nitroglycerin 0.500 0.00333 

Nitromethane . 250 16.7 

1-Nitropropane 90.0 6.00 

Nitrotoluene l 1.0 0.733 

Nitrotrichloromethane, see Chloropicrin 

Nonane 1050 . 70.0 

Octachloronaphthalene 0.100 0.0067 

Octane. 1450 96.7 

Oil mist, mineral 5.00 0.333 

Osmium tetroxide as Os . 0.00200 0.000133 

Oxalic acid 1.00 0.0667 

Oxygen difluoride 0.100 0.00667 

Paraffin wax fume 2.00 0.133 

Paraquat respirable sizes 0.100 0.00667 

Pentaborane 0.0100 0.000667 

Pentachloronaphthalene . 0 500 0.0333 

2-Pentanone, see Methyl propyl ketone 

Perchloromethyl mercaptan 0.800 0.0533 

Perchloryl fluoride . 14.0 0.933 

Phenacyl chloride, see a-Chloroacetophenone 

Phenothiazine 5.00 0.333 

20 NMAC 2.72 56 11-14-98 
Emissions 

SUBSTANCE OEL in pounds 

mglm' per hour 

Phenyl ether, vapor 7.00 0.467 

Phenyl glycidyl ether (PGE) 6.00 0.400 

Phenyl mercaptan 2.00 0.133 

Phenylphosphine 0.250 0.0167 

Phorate 0 0500 0.00333 

Phosdrin; see Mevinphos 

Phosphoric acid 1.00 0.0667 

Phosphorus oxychloride . 0 600 0.0400 

Phosphorus pentachloride 1.00 0.0667 

Phosphorus pentasulfide 1.00 0.0667 

Phosphorus trichloride . 1.50 0.100 

m-Phthalodinitrile 5.00 0.333 

Picloram 10.0 0.667 

Picric acid 0.100 0.00667 

Pindone . 0.100 0.00667 

Piperazine dihydrochloride 5.00 0.333 

2-Pivalyl-1 ,3-indandione, see Pindone 

Platinum 

metal 1.00 0.0667 

soluble salts, as Pt 0.00200 0.000133 

Potassium hydroxide 2.00 0 133 

Propargyl alcohol 2.00 0 133 

Propionic acid 30.0 2.00 

n-Propyl acetate . 840 56.0 

Propyl alcohol 500 33.3 

Propylene glycol dinitrate 0.300 0.200 

n-Propyl nitrate 105 7.00 

Pyrethrum 5.00 0.333 

Pyridine . 15.0 1.00 

RDX, see Cyclonite 

Resorcinol 45.0 3.00 

Rhodium 

metal 1.00 0.0667 

insoluble compounds, as Rh . 1.00 0.0667 

soluble compounds, as Rh 0.0100 0.000667 

Ronnel 10.0 0.667 

Rotenonetcmnmercial) 5.00 0.333 

Selenium as Se 0.200 0.0133 

Sesone 10.0 0.667 

20 NMAC 2.72 57 11-14-98 
SUBSTANCE 

Silane, see silicon tetrahydride 

Silicon tetrahydride 

Silver 

metal 

soluble compounds, as Ag 

Sodium azide . 

Sodium bisulfite . 

Sodium 2,4-dichloro-phenoxyethyl sulfate, see Sesone 

Sodium fluoroacetate 

Sodium hydroxide 

Sodium metabisulfite 

Stibine . 

Stoddard solvent 

Strychnine . 

Subtilisins (Proteolytic enzymes as 100% 

pure crystalline enzyme) 

Sulfotep .. 

Sulfuric acid 

Sulfur monochloride 

Sulfur pentafluoride . 

Sulfur tetrafluoride 

Sulfuryl fluoride . 

Sulprofos. 

Systox, see Demeton 

2,4,5-T 

Tantalum . 

TEDP, see Sulfotep 

Tellurium & Compounds as Te 

Tellurium hexafluoride as T e 

Temephos 

TEPP 

Terphenyls . 

Tetrachloronaphthalene 

Tetramethyl succinoitrile 

Tetranitromethane 

Tetrasodium pyrophosphate . 

Tetryl 

Thallium, soluble compounds, as Tl 

4,4-Thiobis (6 tert, butyl-m-cresol) 

20 NMAC 2.72 58 

OEL 

mg/m3 

7.00 

0.100 

0.0100 

0.300 

5.00 

0.0500 

2.00 

5.00 

0.500 

525 

0.150 

6.00xl0·' 

0.200 

1.00 

6.00 

0.100 

0.400 

20.0 

1.00 

10.0 

5.00 

0.100 

0.200 

10.0 

0.0500 

5.00 

2.00 

3.00 

8.00 

5.00 

1.50 

0.100 

10.0 

Emissions 

in pounds 

per hour 

0.467 

0.00667 

0.000667 

0.0200 

0.333 

0.00333 

0.133 

0.333 

0.0333 

35.0 

0.0100 

4 OOxlo·• 

0.0133 

0.0667 

0.400 

0.00667 

0.0267 

1.33 

0.0667 

0.667 

0.333 

0.00667 

0.0133 

0.667 

0.00333 

0.333 

0 133 

0.200 

0.533 

0.333 

0.100 

0.00667 

0.667 

11-14-98 
SUBSTANCE 

Thioglycolic acid 

Thionyl chloride . 

Thiram 

Tin 

metal 

oxide & inorganic compounds, except 

SnH4, asSn 

organic compounds as Sn 

m-Toluidine . 

Tributyl phosphate . 

Trichloroacetic acid . 

Trichloronaphthalene . 

Trichloronitromethane, See Chloropicrin 

I ,2,3-Trichloropropane 

Tricyclohexyltin hydroxide, see Cyhexatin 

T rimellitic anhydride 

Trimethylamine 

T rimethyl benzene 

Trimethyl phosphite . 

2,4,6-Trinitrophenol, see Picric acid 

2,4,6-Trinitrophenylmethylnitramine, see Tetryl 

2,4,6-Trinitrotoluene (TNT) 

Triorthosresyl phosphate 

Triphenyl amine . 

Triphenyl phosphate 

Tungsten as W 

insoluble compounds 

soluble compounds 

Turpentine . 

Uranium (natural) soluble & insoluble 

compounds as U 

n-V aleraldehyde 

Vanadium, as V 20 5 respirable dust & fume 

Vinyl toluene . 

VM & P Naphtha 

Warfarin 

Wood dust (certain hard woods as beech & oak) 

soft wood 

m-Xylene a,a-diamine 

20 NMAC 2.72 59 

OEL 

mglm' 

4.00 

.. - ..... 5.00 

5.00 

2.00 

2.00 

0.100 

9.00 

2.50 

7.00 

5 00 

300 

0.0400 

24.0 

125 

10.0 

0.500 

0.100 

5.00 

3.00 

5.00 

1.0 

560 

0.200 

175 

0.0500 

240 

1350 

0.100 

1.00 

5 00 

0.100 

Emissions 

in pounds 

per hour 

0.267 

0.333 

0.333 

0.133 

0 133 

0.00667 

0.600 

0.167 

0.467 

0 333 

20.0 

0.00267 

1.60 

8.33 

0.667 

0.0333 

0.00667 

0.333 

0.200 

0.333 

37.3 

37.3 

0 0133 

11.7 

0.00333 

16.0 

90.0 

0.00667 

0.0667 

0.333 

0.00667 

11-14-98 
Emissions 

SUBSTANCE OEL in pounds 

mglm' per hour 

Xylidine. 10.0 0.667 

Yttrium 1.00 0.0667 

Zinc chloride fume . 1.00 0.0667 

Zinc oxide Fume 5 00 0.333 

Zirconium compounds as Zr 5.00 0.333 

[ 11-30-95] 

20 NMAC 2. 72 60 11-14-98 
Table B -Known or Suspected Carcinogens 

SUBSTANCE 

Coal tar volatiles, as benzene 

solubles 

B-Naphthylamine . 

N-Phenyl-beta-naphthylamine 

Phenylhydrazine .. 

o-Tolidine 

p-Toluidine 

Vinyl cyclohexene dioxide 

FOOTNOTES 

OEL 

mg/m3 

0.200 

0.00300* 

5.00** 

20.0 

I 1.0** 

9.00 

60.0 

Emissions 

in pounds 

per hour 

0.0133 

2.00xJo-• 

0.333 

1.33 

0.733 

0.600 

4.00 

The emissions in pounds per hour in Section 502 were derived using the formula listed below 

emission level (lbs/hr) = OEL (mg/m3

) c- I 5 

* =Compound for which an OEL is not listed by the ACGIH. Value derived by using the miminum 

detectable level listed in the NIOSH "Manual of Analytical Methods", Third Edition. 

** =Compound for which an OEL is not listed by the ACGIH and for which there is no chemical 

specific analytical method listed in the NIOSH "Manual of Analytical Methods", Third Edition. A 

minimum dectable level (MDL) was derived by using the MDL of a similar compound listed in the 

NIOSH analytical methods or by assigning the average MDL for a class of compounds such as 

"halogenated hydrocarbons"- In some cases the lowest MDL of the whole class was used. [I I -30-

95) 

20 NMAC 2. 72 61 11-14-98 
\ 

Table C- Stack Height Release Correction Factor 

Sources may choose to use a correction factor for the release height of emissions for the purpose of 

determining whether a permit is necessary for the emission of a toxic air pollutant. To apply the 

correction go to the table below and find the minimum height of release for the toxic air pollutant 

and select the correction factor ( CF) which corresponds to that figure If the height of release is 

between two values, the lower number shall be selected; or in the event of multiple releases of the 

same substance from different release heights, the source may choose to use a weighted average CF, 

weighted by the emission rate at each. The emissions in pounds per hour is then multiplied by the CF 

(see below). If the emissions from your source exceed the resulting number, you must apply for a 

permit from the Department. Remember, this must be done for each toxic air pollutant. 

CF x Emissions in Pounds per Hour 

where: 

E - emission rate (pounds per hour) 

OEL - occupational exposure limit (mg per cubic meter) 

CF is a correction factor, shown in the table below, which accounts for release height. 

Release Height in Meters 

Less than 3 

10 

20 

30 

40 

50 

60 

70 

80 

90 

100 

110 

120 

130 

140 

150 

160 

170 

180 

190 

200 

[6-14-94; 8-14-98) 

20 NMAC 2.72 62 

Correction Factor (CF)* 

5 

19 

41 

71 

108 

152 

202 

255 

317 

378 

451 

533 

617 

690 

781 

837 

902 

1002 

1066 

1161 

11-14-98 
.. 

State of New Mexico 

ENnRONMENTDEPARTMENT 

Harold Runnels Building 

GARY E. JOHNSON 

l/90St. Francis Drive, P.O. Drawer 26110 

Santa Fe, New Mexico 87502-6110 PETER MAGGIORE 

Governor Secretary 

Air Quality Bureau Phone: (505) 827-0031 

~827-0045 

-- ~.-"---- Y~ 8 \ ~- r ·- ' - T.,.,... ~ ' · 1 

MEMORANDUM••··.. - ' ,',\ \ \ . \ \ " ~ \ 

DATE: April 9, 1999 

\\\ po':l I?. \'::199 ,..~ \ 

TO: Tom Stogner, US EPA, Region 6 ~-J FROM: · Rita Trujillo (A' 

SUBJECT: Corrected 20 NMAC 2. 70 & 2. 72 

Enclosed are the meeting notice, agenda and meeting minutes for the Environmental Improvement 

Board meeting in which the corrections to 20 NMAC 2. 70 and 20 NMAC 2. 72 were approved. 

Please let me know if you have further questions or need additional information. Thanks for your 

help! 
State 'of New Mexico 

Environmental Improvement Board 

Harold Runnels Building, Room N-4071 

1190 St. Francis Drive 

P.O. Box 26110 

Santa Fe, New Mexico 87501 

Phone: (505) 827-2842 

Fax: (505) 827-2836 

REVISED AGENDA OF MEETING 

October 9, 1998 

State Capitol Building, Room 317 

Corner of Paseo de Peralta and Old Santa Fe Trail 

Santa Fe, New Mexico 

9:00A.M. 

The foUowing items are for discussion and/or possible action: 

I. Approval of the Agenda. 

2. Approval of the Minutes of the August 14, 1998 meeting. 

Gary E. JohnsQn 

Governor 

3. Petitioner Southwest Organizing Project and Martin Dorado's Unopposed Motion and Order to Stay 

Briefing and Further Proceedings. 

4. The New Mexico Environment Department's request for a hearing for consideration of adoption of a 

proposed air quality regulation 20 NMAC 2. 76 - At Risk Construction or Modification. 

5. The New Mexico Environment Department's request for corrections to existing air quality regulations 20 

NMAC 2.70- Operating Pennits; 20 NMAC 2.72- Construction Pennits. 

6. New Mexico Environment Department's Motion to Amend EIB's Findings, Conclusions and Order, Em 

97-08 (A)- In the Matter of Air Quality Pennit No. 1863 Abiquiu Sand and Gravel 

7. Next Meeting. 

8. Other Business. 

HEARINGS: 

Hearing to consider proposed regulatory changes to Air Quality 20 NMAC 2.99 - Conformity to the State 

Implementation Plan of Transportation Plans, Programs, and Projects, and the reformatting of Air Quality 

Control Regulations (AQCRs) 670-671, 673-682 (coal gasification rules) to 20 NMAC 2.43- Gasification 

Plants 
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 

Sectioh 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 daq~ition, for 

.L tinte_s, the first publication being on the day of 

\r) .b~ :?C---t 1998, and the subseque consecutive publications on ----

----~C:::=:;'jP="'Jtr---------• 1998. 

me, a Notary Public, in 

o and State of New Mexico 

-.1--"""'~"'--~of 1998 

Statement to come at end of month. 
·s,tate of New Mexico 

Environmental Improvement Board · Harold Runnels Building, Room N-4075 

1190 St. Francis Drive 

P.O. Box 26110 

Santa Fe, New Mexico 87502 

Phone: (505) 827-2425 

Fax: (505) 827-2836 

STATE OF NEW MEXICO 

ENVIRONMENTAL IMPROVEMENT BOARD 

MINUTES OF THE REGULAR MEETING OF 

October 9, 1998 

GARY E. JOHNSON 

GOVERNOR 

Chairperson Jimi Gadzia called the regular meeting of the Environmental Improvement 

Board (Board) to order, at the State Capitol Building, Room 317, corner of Paseo de 

Peralta and Old Santa Fe Trail, Santa Fe, New Mexico at approximately 9:18a.m. 

Members Present 

Jimi Gadzia, Chair 

Laurence H. Lattman, Member 

David Salopek, Secretary 

Kevin Sweazea, Member 

Members Absent 

Hilary Noskin, Vice-Chair 

also present were: 

Patrick Simpson 

Tammy Gonzales 

Christopher D. Shaw 

Jim Shively 

J. David Duran 

Rita Trujillo 

EIB Attorney 

EIB Secretary 

Dolan & Dominici 

NMED 

NMED 

NMED 

Item 1 - Approval of the Agenda. 

Doug Meiklejohn 

Jim Nellessen 

Eric Ames 

Cecilia Williams 

Lany Weaver 

Ellen Lang 

Chris Mechels 

Abiquiu Citizens 

NMED 

NMED 

NMED 

NMED 

Self 

Self 

David Salopek moved to approve the agenda. Kevin Sweazea seconded the motion. 

The motion passed unanimously. 

Item 2- Approval of the Minutes of the August 14, 1998 Meeting. 

Dr. Laurence Lattman moved to approve the minutes of the August 14, 1998 meeting. 

David Salopek seconded the motion. The motion passed unanimously. 
Item 3 -Petitioner Southwest Organizing Project and Martin Dorado's Unopposed 

Motion and Order to Stay Briefing and Further Proceedings. 

Phil Wardwell, Counsel for the Environment Department, informed the Board that a 

petition was filed with the Board to review a decision made by the Air Quality Bureau. 

The Bureau decided that a permit was not required for Constructors Inc., a plant in 

Carlsbad, New Mexico, because the emissions were so low. Counsel for the petitioner, 

David Gomez and Mr. Wardwell have filed a joint motion to stay briefing and further 

proceedings, and have waived all pending proceedings in this matter in order to 

facilitate settlement negotiations. Mr. Wardwell asked the Board to approve the Order. 

David Salopek moves to approve the Order. Kevin Sweazea seconded the motion. 

The motion passed unanimously. 

Item 4 - New Mexico Environment Department's Request for a Hearing for 

Consideration of Adoption of a Proposed Air Quality Regulation 20 NMAC 2.76-At 

Risk Construction or Modification. 

Lany Weaver, Health Program Manager for the Air Quality Bureau, briefed the Board 

on the proposed regulation. She informed the Board that Part 76 was developed with 

consultation and encouragement from the Trust and Partnering Group Inc. Efforts were 

made to distribute copies of the proposals to a wide variety of people and allow them to 

provide feedback on this proposed regulation, which allows sources that are subject to 

construction permits to begin construction before the permit is issued, under specific 

circumstances. Such circumstances could be delays due to public notice, information 

that may be required beyond what was needed in the permit application, and the the 

time to review the additional information. If the Bureau feels that the permit application 

is okay with a cursory check, the applicant may start construction while the review 

process is underway. If at any time the Department has trouble or feels the company 

cannot operate and still meet regulations, the Department may order the company to 

cease operations. The company will be held accountable for any problems and costs 

associated with violation of the regulations. At any time the company may reapply for a 

permit and modify it to meet regulation standards. Ms. Weaver states that this 

regulation is an experiment, but o"ne that the Bureau has had a lot of encouragement in 

taking on. The Bureau has given it a sunset clause of (2) years. At the end of that time 

it will die, unless the Bureau feels that it is being used, not being abused, and it works. 

If this is the case, the Bureau or industry may go before the Board and request that the 

regulation be extended, modified, or adopted permanently. 

2 
Ms. Gadzia asked if any comments on this regulation has been received from the 

environmental sector. Ms. Weaver stated that a large number of environmental 

companies have been included on every mailing, but the Bureau received a "deafening 

silence" with regard to this regulation. Ms. Gadzia asked if the motivation for the 

adoption of this regulation is Bureau workload. Ms. Weaver denied this, she stated 

that a benefit is to have more review up front, but the regulation will not speed up the 

permit process. The permits this will affect are the ones that are so straight forward, 

that the company is positive their permit will be approved. One major risk of this new 

regulation is having the company start operations, invest time and money, then 

discover problems with the permit application. 

Ms. Gadzia asked about the process the Bureau will follow if construction at a site must 

be halted. Ms. Weaver stated that the regulation outlines the procedures that must be 

taken if a problem is found. The company must be notified by certified mail that 

operation is to be halted. If operation is not halted, the company will be subject to 

enforcement action and major monetary penalties, and the Department may require the 

applicant to resubmit their permit. This could further delay construction and motivate 

the company to make good business decisions by staying in compliance. 

Dr. Lattman moved to schedule the hearing on January 8, 1999. Kevin Sweazea 

seconded the motion. The motion passed unanimously. 

Item 5 - New Mexico Environment Department's request for corrections to 

existing air quality regulations 20 NMAC 2.70- Operating Permits; 20 NMAC 2.72-

Construction Permits. 

Phil Wardwell, Counsel for the NMED Air Quality Bureau, addressed the Board 

regarding the corrections. In a past EIB meeting the Air Quality Bureau came before 

the Board and asked permission to correct a mistake that was made. They left out an 

exhibit, the Stack Height chart. It was left out in 1995 when the Bureau went through 

reformatting of the regulations as required by the State Records Center. In 20 NMAC 

part 70 and 72, seven more mistakes were found. Dr. Lattman stated that all the 

changes he has noted are editorial. Mr. Simpson brought up a substantive change that 

was discussed on the phone by Mr. Wardwell and him. In the former Air Quality 

Control Regulation, which was 702.K the paragraphs and sub-paragraphs are 

numerical. In sub-paragraph 2 it reads, "in the case of a modification, requirements of 

this section apply only to the facilities involved in the modification." The reformatted 

regulations uses an alphabetical system. Now sub-paragraph 2 has become C, it was 

given it's own sub-division. Mr. Wardwell explained that the Bureau would like to 

change the regulation back to the older format. 

Kevin Sweazea moved to approve the changes. Dr. Lattman seconded the motion. 

The motion passed unanimously. 

3 
Item 6 - New Mexico Environment Department's Motion to Amend EIB's Findings, 

Conclusions and Order, EIB 97-08 (A) -In the Matter of Air Quality Permit No. 1863 

Abiquiu Sand and Gravel. 

Eric Ames, Counsel for the New Mexico Environment Department, Air Quality Bureau, 

asked for clarification on the Board's jurisdiction to consider this motion. Mr. Ames 

stated that the Department filed a Brief regarding the law and believes that the Board 

does have the jurisdiction to consider the motion. The motion was filed and fully 

briefed before the Notice of Appeal was filed by the petitioner. Again Mr. Ames stated 

that it is clear the Board does have jurisdiction to consider the motion. Mr. Ames 

informed the Board that the parties have stipulated to an extension of time to file 

documents with the Court of Appeals, and the court has granted the extension. This 

should enable the Board to make a decision and allow the parties to conform their 

docketing statements to whatever amendments the Board makes to the Final Order. 

Mr. Simpson clarified what Mr. Ames is requesting. First, there are two issues at hand 

before the Board. Does the Board have jurisdiction to consider this matter, and 

assuming it has jurisdiction, should it amend the Final Order. Mr. Simpson asked the 

Board if they would like to adjourn into executive session to hear his legal advice, or 

stay in open session. The Board agreed to stay in open session. Mr. Simpson 

informed the Board that a motion with respect to the Findings is not a motion going 

toward the judgement, it is a motion going to the underlying aspects of the judgement. 

The second issue deals with part of the litigation strategy. The Order was not designed 

to be affirmable in all cases, it was an honest reflection of the evidence. The one 

Finding that Mr. Ames is disputing is the Finding with respect to fraud. He stated that 

there is no evidence of fraud. The Petitioners state that not only is there some 

evidence of fraud, but compelling evidence of fraud. Mr. Simpson told the Board 

Members that they need to decide whether this is a motion on the judgement or just on 

an underlying factor within the judgement. Second, if the Board wishes to accept 

jurisdiction, they need to decide if there was any evidence of fraud. 

Douglas Meiklejohn, Counsel for the Petitioners, stated that they do not take a position 

on whether the Board has jurisdictjon. If the Board is going to consider the motion, 

they would like a chance to address the merits. 

Mr. Ames asked to clarify a statement that Mr. Simpson gave to the Board. He stated 

that the Findings of Fact and Conclusions of Law directly support the judgement. 

Without the Findings of Fact and Conclusions of Law there can be no sustainable 

judgement. So to suggest that a motion directed toward the Findings of Fact and 

Conclusions of Law is not a motion directed toward the judgement, is incorrect. 

4 
Dr. Lattman moved to accept jurisdiction in this petition. Kevin Sweazea seconded the 

motion. The motion passed unanimously. 

Mr. Ames requested the Board clarify a couple issues regarding the Final Order before 

it is reviewed by the Court of Appeals. First the Department has moved to delete 

Finding of Fact 3g, which regards "fraud and abuse" Mr. Ames stated that the 

Petitioner never alleged fraud or abuse, did not enter evidence of fraud or abuse, and 

do not oppose the motion to delete Finding of Fact 3g. In light of this, Mr. Ames urged 

the Board to remove this finding. 

Second, Mr. Ames stated that the Board must make a finding of fact regarding the 

Petitioners allegations of misconduct and denial of due process because they failed to 

introduce evidence demonstrating that the Department engaged in misconduct or 

denied due process to the public. Mr. Ames urged the Board to adopt Findings of Fact 

with regard to these allegations. 

Adopt a Finding of Fact that would read; "The Petitioners failed to introduce evidence 

demonstrating that the Department mislead the Secretary of Environment regarding 

alleged flaws in the rough screen modeling analysis." Due to the absence of these 

facts the Department asked that the Board adopt this as a conclusion of Law. 

The Department has moved that the Board delete the Conclusions of Law 7 and 8. The 

Board found that the rough screen modeling analysis demonstrated compliance. This 

Finding is sufficient to support the Final Order and to uphold the conditions of the 

permit. Any Conclusion of Law regarding de novo proceedings is unnecessary and 

creates an unnecessary ground for appeal. 

The Department moved to delete the reference to "statutory defect" in Conclusion of 

Law number 9. The Petitioners opposed the deletion of this reference because it may 

claim they did allege such a defect. The Petitioners never proved a statutory defect. 

The Department proposes an alternative. Delete the reference to "statutory defect" or 

make a Finding of Fact that the Petitioner did not prove by a perponderence of 

evidence, or any evidence, that a statutory defect existed in the Department proceeding 

below. 

Mr. Sweazea asked if the matter of de novo proceedings were argued during any of the 

numerous hearings held. Mr. Ames stated that he believed the matter was brought up 

during Ms. Lang's opening statement. Mr. Ames stated that during this time he made 

an argument that the rules or statute allow for the introduction of new evidence. That 

was the only time that the Department mentioned de novo proceedings. He stated that 

Ms. Lang did call for a motion for a de novo proceeding, which was never ruled on by 

the Board. 

5 
Douglas Meiklejohn, Counsel for the Petitioner stated that a motion in limine was filed 

to prevent introduction of any evidence that was not presented at the public hearing 

held in Abiquiu. 

Mr. Meiklejohn stated that the Petitioners position is that the Department's motion 

should be denied because: 

The Petitioners do not agree with the Department regarding its statement of fraud; it 

simply takes no position on that point. 

On misconduct by the Department, the Petitioners presented testimony that the 

Department became aware of flaws with the rough screen model after the public 

hearing in Abiquiu. 

Mr. Sweazea said that he recalled at one hearing the Petitioners' did state that the 

Department knew of flaws in the rough screen model before the hearing in Abiquiu. Mr. 

Meiklejohn, after conferring with his client, stated that after the public hearing in 

Abiquiu the Petitioners' retained an air quality expert, Bruce Nickolson, who went over 

the modeling and detected flaws. He presented this to the Department, who at that time 

acknowledge problems with the rough screen modeling. 

Mr. Meiklejohn stated that Ellen Lange was sworn in before her opening statement. 

Therefore she understood that her testimony would be taken into account and used by 

the administrative body in its decision. 

The Department made an objection to Ms. Swingle's testimony because she was not a 

technical witness. The Petitioners were not aware that one must be a technical witness 

to testify about the process that had been taken by the Department. The Department 

objected to Ms. Swingle's testimony on the grounds that it was hearsay, and that 

objection was not sustained. Mr. Meiklejohn stated that there is no basis under the 

Board's adjudicatory procedures for excluding evidence. 

In the matter of the Department's claim that the Petitioners did not introduce evidence 

regarding the testimony of Tracy f:lughes, the Petitioners did try to introduce that 

evidence. The Board ruled that she could not testify. Mr. Meiklejohn stated that if the 

Board is inclined to adopt any of the Findings by the Department, it would be more 

accurate to say the Board ruled that the Petitioners could not present that testimony. 

Mr. Meiklejohn stated that neither Ms. Lang nor Ms. Swingle said that the conduct by 

the Department violates any section of the New Mexico Air Quality Act or that this 

violates due process guaranteed by the Fifth Amendment. 

6 
What they said is, there are problems and it is up to the parties counsel to point out to 

you the manner in which they violate the New Mexico Air Quality Act and the United 

Stated Constitution and the New Mexico Constitution. 

The Petitioners' object to the Department request's for a new Conclusion of Law stating 

that the Petitioners failed to prove by a preponderance of the evidence that the 

Department engaged in misconduct or violated due process. Their position is that they 

did prove this. 

Mr. Meiklejohn stated that the Petitioners believe the Board does not have the authority 

to conduct a de novo hearing. The Department is asking that the Board amend it's 

Findings and Conclusions to indicate that the Board did not conduct a de novo hearing. 

The Petitioners' feel this is not accurate and it should not be done. 

Mr. Ames stated that on it's face the Final Order is sustainable based on the Finding of 

Fact regarding the rough screen model. That alone is the Departments position. With 

regard to the two Findings of Fact which were discussed during the oral argument, Mr. 

Ames stated that it is clear that Findings of Fact must be based on evidence, or the 

lack thereof. The Petitioners' stated that Ms. Lang expected her opening statement to 

be sworn testimony. Mr. Ames stated that this is a bare assertion, it is what she hoped 

the Petitioners would show at some point during the hearing. Mr. Ames said that 

statement only is not a preponderance of the evidence. Ms. Swingle's testimony in no 

way discussed misconduct, denial of due process, or that the Department mislead the 

Secretary. Ms. Swingle's testimony is hearsay and in no way relevant to the Findings 

of Fact. 

The Petitioners' Counsel stated that Ms. Hughes tried hard to present evidence 

regarding alleged misconduct and denial of due process. Mr. Ames stated that the fact 

is Ms. Hughes did not testify at all, therefore there is no evidence in the record. If the 

Board improperly excluded Ms. Hughes's testimony, the Petitioners can raise this issue 

in their appeal to the Court of Appeals. If the Court of Appeals agreed with the 

Petitioners, then the Board will hear Ms. Hughes's testimony. 

The Petitioners' state that the Board did not agree that the Petitioners' evidence carried 

the day. That alone resolves the matter. If the Board is convinced that the evidence did 

not carry the day, then it needs to make a Conclusion of Law to that effect. 

Mr. Meiklejohn stated that the Department knew about problems with the rough screen 

model before the process was complete and did not do anything about this. Ms. 

Swingle and Ms. Lang testified to that effect, so there was evidence presented. Even if 

there is only one statement by each of them, then there is a preponderance of the 

evidence. 

7 
Mr. Simpson stated to the Board that what was discussed here today with respect to the 

rough screen model relates to the Board's deliberations down in Albuquerque, in 

executive session. 

Kevin Sweazea moved, pursuant to Section 10-15-1-H-3, NMSA 1978, that the Board 

go into executive session. David Salopek seconded the motion. Ms. Gadzia called for 

a vote. 

Dr. Laurence Lattman 

Jimi Gadzia 

David Salopek 

Kevin Sweazea 

The motion failed. 

No 

No 

Yes 

Yes 

Dr. Lattman stated that nothing was said in the executive session in Albuquerque that 

involved personalities, it was all technical discussion and he had no problem repeating 

this. 

Mr. Simpson addressed each argument to the Board. 

Mr. Ames requested Conclusions of Law and Findings with respect to denial of due 

process. That was resolved through the Findings with respect to the taking of new 

evidence. Because the specific due process issue was the adequacy of the process 

below, the specific resolution in the Findings and Conclusions covered this. 

Mr. Lattman stated that the Board did not find any evidence that due process was 

denied the first time, and they cured any possible lack of due process. 

With respect to the de novo nature of the hearing, the initial posture of the Department 

was to admit the fine screen model information, and they were prepared to present that. 

It was after the rough screen model was presented and shown that the permittee had 

met its threshold that they no longer wanted the information in. Mr. Simpson stated that 

Mr. Meiklejohn was accurate when he said that the Department was advocating a de 

novo hearing. Mr. Lattman said that he personally thought that the hearing was de 

novo. Mr. Simpson informed the Board that the regulations clearly state that the Board 

will take evidence. 

Mr. Simpson addressed a specific argument made by Mr. Ames. The Findings do state 

that the rough screen model demonstrated compliance. During deliberations the Board 

was comfortable with the rough screen model's demonstration of compliance only 

because of the corroboration of the fine screen model. Mr. Lattman agreed with this 

statement. 

8 
With respect to the finding of fraud, Mr. Simpson stated that none of the Board 

Members was convinced that there was evidence approaching a preponderance of 

fraud, but a few circumstances made them uncomfortable. If a reviewing court decides 

that there is a piece of evidence that would logically demonstrate some kind of 

misrepresentation or omission, the appeal will come back to the Board. 

Mr. Lattman refered to 3g where it stated that the evidence of fraud or abuse in 

connection with the rough screen model did not clearly and convincingly demonstrate 

the elements of fraud. Mr. Simpson stated that clearly and convincingly is a 

burdensome phrase. It implies that there is evidence all the way up to, but just short of 

clear and convincingly. He has seen cases reversed because the burden of proof was 

not stated, and the court assumed that the wrong burden of proof was used. As an 

adjudicatory body, the Board must state its burden of proof, and that is what the phrase 

clearly and convincingly does. 

Mr. Sweazea asked Mr. Simpson if he had concerns that the Court of Appeals would 

send the appeal back because the Board used clearly and convincingly as a standard, 

instead of a preponderance. Mr. Simpson says that he does. 

Mr. Sweazea moved that the Board's Findings and Conclusions accurately reflect the 

decision the Board made. David Salopek seconded the motion. 

Dr. Lattman asked if the Board is moving to let the Order stand, verbatim as is. Kevin 

Sweazea confirmed this. Mr. Sweazea also stated for the record that he believes the 

issue of fraud was not proven even by a preponderance. Dr. Lattman agreed, and 

asked if there is anything the Board can do to strengthen the order on this issue. Mr. 

Sweazea said an additional Finding stating that there was no credible evidence could 

be submitted. 

David Salopek withdrew his second, and Kevin Sweazea withdrew his motion. 

Mr. Simpson gave the Board a different wording to the additional Finding. "There was 

no credible evidence of fraud or abuse by the Department in connection with the flaws 

in the rough screen model." Kevin Sweazea moved that the Board substitute this 

phrase in paragraph 3g of its Findings of Fact. Dr. Lattman seconded the motion. Ms. 

Gadzia asked the Board secretary to call roll on the motion. 

Dr. Lattman Yes 

Jimi Gadzia Yes 

David Salopek Yes 

Kevin Sweazea Yes 

The motion passed unanimously. 

9 
Kevin Sweazea moved that with the amendment the Board just voted on, the remainder 

of the Deparments motion be denied. Dr. Lattman seconded the motion. Jimi Gadzia 

asked the Board secretary to call roll. 

Dr. Lattman Yes 

Jimi Gadzia Yes 

David Salopek Yes 

Kevin Sweazea Yes 

The motion passed unanimously. 

Item 7 • Next Meeting. 

The Board secretary reminded the Board that the record in 20 NMAC 4.2 and 4.3, 

Hazardous Waste Fees, was left open for 45 days, which ends on October 19, 1998. 

The Board will have to meet to deliberate and possibly rule on this issue. The 

members decided to tenatively schedule this for the December 11, 1998 meeting, 

unless counsel for the parties wish to place it on the November 13, 1998 agenda. 

Item 8 · Other Business. 

Chris Mechels declared his objection to the Board regarding the New Mexico 

Environment Department's representation in the Abiquiu Sand and Gravel matter. 

Mr. Mechels stated that he did not receive a notification in the matter of the adoption of 

20 NMAC 2.76, At Risk Construction or Modification and did not know of anyone that 

did. He stated that this piece of legislation is highly adverse to the public interest. 

The Board stated that it would like to hold all future winter meetings at 9:30a.m. and 

have these meetings take place in Albuquerque. 

Kevin Sweazea moved to recess the meeting and move into the hearing. David 

Salopek seconded the motion. The motion passed unanimously. 

HEARINGS: 

Member Kevin Sweazea called the Hearing to order, it began at Approximately 11:10 

a.m. 

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' ' 

.. 

The Board held a hearing to consider proposed regulatory changes to Air Quality 20 

NMAC 2.99 -Conformity to the State Implementation Plan of Transportation 

Plans, Programs, and Projects, and the reformatting of Air Quality Control 

Regulations (AQCRs) 670-671, 673-682 (coal gasification rules) to 20 NMAC 2.43-

Gasification 

Kevin Sweazea moved to approve the suggested reguations. David Salopek seconded 

the motion. Jimi Gadzia asked for a roll call. 

Dr. Lattman Yes 

Jimi Gadzia Yes 

David Salopek Yes 

Kevin Sweazea Yes 

Dr. Lattman moved hJ adjourn. 

The transcript of the hearing is available from Kathy Townsend Court Reporters (505) 

243-5018. 

Court Reporter: Cheryl Arreguin 

--DavrCI,Salopek, Secret#Y 

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