# TECHNICAL SUPPORT DOCUMENT

20 New Mexico Administrative Code (NMAC) Chapter 2, Part 75

Construction Permit Fees

20.2.75 NMAC

March 20, 2012

FOR FURTHER INFORMATION CONTACT: Ms. Ashley Mohr, United States

Environmental Protection Agency Region 6, Air Permits Section (6PD-R), 1445 Ross

Avenue, Dallas, Texas, 75202-2733, (214) 665-7289

# Subject: Revisions to the State Implementatio n Plan – New Mexico Administrative

Code Title 20, Chapter 2, Part 75 – Construction Permit Fees

Contents:

I. Executive Summary

II. Summary of State Submittals

III. Technical Review of State Submittals

IV. Conclusion

# I. Executive Summary

What actions are evaluated in this Technical Support Document?

This technical support document (TSD) revi ews a proposed revision to the New Mexico

SIP concerning a “repeal and replace” and subsequent revision to construction permit

fees regulations. This review will determine if the revisions are consistent with the

requirements of the Clean Air Act and EPA’s policy and guidance.

April 11, 2002

 On January 31, 2001 the New Mexico Envir onmental Improvement Board (EIB) filed

with the State Records Center a rule action that repealed the existing construction

permit fee regulations and adopted replacem ent construction permit fees, which is

codified in Title 20, Chapter 2, Part 75 of the New Mexico Administrative Code

(NMAC). The replacement Construction Pe rmit Fees became effective on March 2,

2001. Governor Gary Johnson submitted a revi sion to the New Mexico SIP in a letter

dated April 11, 2002 requesting the revision of the New Mexico SIP to incorporate

the repeal and replacement of the construction permit fees regulation.

 The April 11, 2002 submittal from New Mexico also contained revisions to 20.2.72

NMAC – Construction Permits, 20.2.73 NMAC – Notice of Intent and Emissions

Inventory Requirements, and 20.2.79 NMAC – Permits – Nonattainment Areas. This

TSD only reviews the portion of the April 11, 2002 submittal regarding 20.2.75 –

Construction Permit Fees. Portions of th e submittal related to Parts 72, 73, and 79

have been or will be addressed in separate SIP revisions reviews and rule actions.

April 25, 2005

 On October 30, 2003 the New Mexico EIB filed with the State Records Center a rule

action that adopted revisi ons to 20.2.75 NMAC, concerning construction permit fees

regulations. The revised Part 75 (Const ruction Permit Fees) became effective on

December 1, 2003. Governor Bill Richar dson submitted a revision to the New

Mexico SIP in a letter da ted April 25, 2005 requesting the revision of the New

Mexico SIP to incorporate the adopted re visions to the construction permit fees

regulation.

 The April 25, 2005 submittal from New Mexico also contained revisions to 20.2.66

NMAC – Cotton Gins, 20.2.72 NMAC – Cons truction Permits, and 20.2.73 NMAC –

Notice of Intent and Emissions Inventory Requirements. This TSD only reviews the

portion of the April 25, 2005 submittal rega rding 20.2.75 – Construction Permit Fees.

Portions of the submittal related to Pa rts 66, 72, and 73 have been or will be

addressed in separate SIP revi sions reviews and rule actions.

 EPA is under a Consent Decree to propose action on the portion of the April 25, 2005

submittal that revises the Construction Perm it Fees contained in Part 75 in the New

Mexico SIP no later than Apr il 1, 2012 and take final acti on no later than October 1,

2012.

# II. Summary of State Submittals

Current SIP

 20.2.75 NMAC – Construction Permit Fees

20.2.75 NMAC was last approved by EPA on September 26, 1997 (62 FR 50518),

effective November 25, 1997.

April 11, 2002 Submittal

 20.2.75 NMAC – Construction Permit Fees

On January 26, 2001, the EIB repealed the existing 20.2.75 NMAC – Construction

Permit Fees, which were adopted by the Bo ard in 1989, and adopted replacement fee

regulations. Revisions to 20.2.75 NMAC were made to meet the EIB’s statutory

obligation to establish a fee schedule that co llects sufficient fees to cover the costs of

the construction permit program. The replacement construction permit fees

regulations adopted by the Board on Janua ry 26, 2001 contain a complexity based

construction permit fee schedule and a provision to charge annual fees to facilities.

April 25, 2005 Submittal

 20.2.75 NMAC – Construction Permit Fees

The EIB adopted revisions to 20.2.75 NMAC – Construction Permit Fees on October

30, 2003. These revisions amended four s ections of the previously adopted 2001

replacement Construction Permit Fees regulations, 20.2.75.5 NMAC, 20.2.75.7

NMAC, 20.2.75.10 NMAC, and 20.2.75.11 NMAC. Revisions to 20.2.75 NMAC

were made to meet the EIB’s statutory ob ligation to establish a fee schedule that

collects enough revenue to cove r the entire reasonable cost of the construction permit

program. Specifically the re visions adopted by the EIB on October 30, 2003 include a

typographic error correction, additions of non-substantive clarifying language,

additions of filing fee requirements for Notice of Intent applications, and increases in

annual fees.

# III. Technical Review of State Submittals

This technical review of the April 11, 2002 and April 25, 2005 submittals of the repeal

and replacement of and subse quent revisions to 20.2.75 NMAC consists of a comparison

between the relevant CAA requirements a nd the corresponding s ections in the SIP

submittal. The SIP submittal was reviewed for completeness as a SIP submittal under

Part 51, Appendix V. Next, a section-by-secti on review of the submittal in comparison to

40 CFR 51 is presented to determine whether the submittals satisfy the requirements for

preparation, adoption, and submittal of a SIP re vision. Then the SIP revision is analyzed

with respect to the current SIP-approved NSR program and subsequent revisions. A

comparison of the proposed SIP revision with section 110(l) of the CAA is presented to

determine whether the proposed revisions interf ere with any applicable CAA provisions.

These analyses produce a written evaluation that will be used to make a determination of

whether or not the provisions of the 20.2.75 NMAC – Construction Permit Fees in the

April 11, 2002 and April 25, 2005 SIP submittals are in agreement with the CAA, other

EPA policies or guidance.

A. Part 51, Appendix V Evaluation

B. Review with respect to Part 51

C. Section-by-Section Review

D. Review with respec t to 110(l) of CAA

# III.A Part 51, Appendix V Evaluation

1. Evaluation of the April 11, 2002 SIP Submittal with respect to Part 51,

Appendix V

Part 51, Appendix V Completeness Checklist

The criteria for completeness determination ar e found in Appendix V to Part 51 – Criteria

for determining the completeness of plan submissions and are outlined below:

1.0 Purpose: This appendix V sets fort h the minimum criteria for determining

whether a state implementation plan submitted for consideration by EPA is an

official submission for pur poses of review under § 51.103.

1.1 The EPA shall return to the submitting offi cial any plan or revision thereof which

fails to meet the criteria set forth in this appendix V, and re quest corrective action,

identifying the component(s) absent or in sufficient to perform a review of the

submitted plan.

1.2 The EPA shall inform the submitting offi cial whether or not a plan submission

meets the requirements of this appendix V within 60 days of EPA’s receipt of the

submittal, but no later than 6 months after the date which the State was required to

submit the plan or revision. If a completeness determination is not made by 6

months from receipt of a submittal, th e submittal shall be deemed complete by

operation of law on the date 6 months from receipt. A determination of

completeness under this paragraph means that the submission is an official

submission for purposes of § 51.103.

The attached checklist outlines the basi c criteria included under 2.1, 2.2, and 2.3 of

Appendix V.

# SIP Completeness Checklist fo r the April 11, 2002 SIP Submittal

Adoption of 20.2.75 NMAC – Cons truction Permit Fees

Administrative Materials (2.1)

1. The package is sent with a formal submitta l letter from the Governor or his or her

designee requesting EPA’s approval of the revision.

The SIP revision was submitted by a letter from Governor Gary Johnson, dated

April 11, 2002.

2. Evidence is included that the State has a dopted the revision in the State code or

body of regulations, or that the State ha s issued the permit, order, consent

agreement (hereafter document) in final fo rm. This evidence would include the

date of adoption or final i ssuance and the effective date of revision, if different

from the adoption/issuance date.

The revisions for the April 11, 2002 submittal were adopted by the New Mexico

Environmental Improvement Board on January 26, 2001, filed with the New

Mexico State Records Center on Jan uary 31, 2001, and became effective March

2, 2001.

3. Evidence is included that the State has necessary legal authority under State law

to adopt and implement the revision, e .g., a citation of the appropriate State

authority.

The authority for promulgating changes to the New Mexico State Implementation

Plan, Part 75 – Construction Permit Fees is found in Paragraph 4 of Subsection

A of Section 74-1-8 of th e Environmental Improvement Act and Paragraph 6 of

Subsection B of Section 74-2- 7 of the New Mexico Ai r Quality Control Act.

4. A copy is included of the actual regulation or documen t submitted for approval

and incorporation by reference into the SI P including an indication of the changes

made to the existing approved place where applicable. The submittal shall be a

copy of the official State regulation document signed, stamped, and dated by the

appropriate State official i ndicating that it is fully enforceable by the State. The

effective date of the regulation document shall, whenever possible, be indicated in

the document itself.

The April 11, 2002, submittal included a copy of the official State regulation

document filed at the State Records Center on January 1, 2001, and which

became effective on March 2, 2001.

# 5. Evidence is included that the State followe d all of the procedural requirements of

its laws and/or its constitution in the conducting and completing the

adoption/issuance of the plan.

The SIP submittal package provided evidenc e that legal notices were published in

the local newspaper regarding the repeal and replacement of the Construction

Permit Fees rules, as well as, informa tion on the public hearing to be held

regarding the proposed changes to the st ate rules and how to submit comments on

the proposed changes. A copy of the pub lic hearing transcript with supporting

exhibits was also included in the submittal.

6. Evidence is included that public noti ce was given of the proposed changes

consistent with the procedures approved by EPA, including the date of publication

of such notice (e.g., notarize d or certified copies of any public notices published

in newspapers). (The notice should be at least 30 days prior to the public

hearing(s).

Notices of public hearings were publis hed in the following newspaper on the date

listed:

 The Albuquerque Journal: December 1, 2000

Notice of the public comment period and he aring was also published in the New

Mexico Register on November 30, 2000. A public hearing was held in

Albuquerque, New Mexico on January 12, 2001, which was continued on January

26, 2001.

7. A certification is included i ndicating that public hearin g(s) was/were held in

accordance with the information provided in the public notice(s) and the State’s

laws and constitution, if applicable.

See transcriber’s certification at the end of the public hearing transcripts in the

April 11, 2002 SIP submittal.

8. A compilation of public comments and the State’s response is included.

The SIP submittal package included copies of comments received from the public

on the State regulation. The packages also included a copy of the Public Hearing

Transcripts from the January 12, 2001 and January 26, 2001 public hearings,

during which public comments and responses regarding the Part 75 –

Construction Permit Fees were discussed.

Technical Support (2.2)

1. Identification of all regulated polluta nts affected by the revision included.

# The SIP submittal only affects the fees paid in order to emit pollutants, but does

not affect emission levels directly.

2. Identification of the locations of affected sources including the EPA

attainment/nonattainment de signation of the locations and the status of the

attainment plan for the aff ected area(s) is included.

The provisions contained in 20.2.75 NMAC establishing a revised fee schedule for

construction permits are applicable statewide.

3. Quantifications of the changes in SIP allowable emissions from the affected

sources is included. (Examples include estimates of changes in current actual

emissions from affected sources and/or , where appropriate, quantification of

changes in actual emissions from affect ed sources through calculations of the

differences between certain baseline levels and allowable emissions anticipated if

the revisions were approved.)

Not applicable to this SIP revision. The ne w regulation only affects the fees paid

in order to emit pollutants, but does not affect emission levels directly.

4. Demonstration is included that the NAAQS/PSD increments/RFP demonstration

and visibility as applicable would be pr otected if the revision were approved and

implemented.

Not applicable to this SIP revision. This plan revision does not pertain to redesignating an area to attainment for a national primary am bient air quality

standard. Nor does this revision pertain to prevention of significant deterioration

(PSD) increments and demonstrations of reasonable further progress. The new

regulation only affects the fees paid in or der to emit pollutants, but does not affect

emission levels directly. Because fees have been increased, it is conceivable that a

secondary impact will 

# be to reduce emissions from sources in New Mexico.

5. FOR REDESIGNATIONS:

a. Is there a fully approved maintenan ce plan for the primary ambient air

quality standards for at least 10 years as required by § 175A of the Clean

Air Act?

Not applicable.

b. Are contingency measures included?

Not applicable.

6. Modeling information, if app licable, is required to s upport the proposed revision.

# Not applicable.

7. Evidence is included where necessary, that emission limitations are based on

continuous emission reduction t echnology (e.g., add-on controls,

industrial/process equipment designs, re formulated materials, etc.).

Not applicable.

8. Evidence is included indicating that a SIP revision contains emission limitations,

work practice standards and recordkeep ing/reporting requirements to ensure

stated emission levels.

Not applicable.

9. Compliance/enforcement strategies including how compliance will be determined

in practice (including at what frequency).

Not applicable.

10. As appropriate, special economic and technol ogical justif ications are included per

applicable EPA policies or an explana tion why such justifications are not

necessary should be included. For exampl e, requests for alternative RACT may

require such justification.

Not applicable. No special economic and te chnical justifications are required by

other applicable EPA policies are necessa ry because no such policies are

relevant in this case.

The April 11, 2002 SIP Submittal meets the completeness criteria established in 40

CFR part 51, Appendix V.

# III.A Part 51, Appendix V Evaluation

2. Evaluation of the April 25, 2005 SIP Submittal with respect to Part 51,

Appendix V

Part 51, Appendix V Completeness Checklist

The criteria for completeness determination ar e found in Appendix V to Part 51 – Criteria

for determining the completeness of plan submissions and are outlined below:

1.0 Purpose: This appendix V sets fort h the minimum criteria for determining

whether a state implementation plan submitted for consideration by EPA is an

official submission for pur poses of review under § 51.103.

1.1 The EPA shall return to the submitting offi cial any plan or revision thereof which

fails to meet the criteria set forth in this appendix V, and re quest corrective action,

identifying the component(s) absent or in sufficient to perform a review of the

submitted plan.

1.2 The EPA shall inform the submitting offi cial whether or not a plan submission

meets the requirements of this appendix V within 60 days of EPA’s receipt of the

submittal, but no later than 6 months after the date which the State was required to

submit the plan or revision. If a completeness determination is not made by 6

months from receipt of a submittal, th e submittal shall be deemed complete by

operation of law on the date 6 months from receipt. A determination of

completeness under this paragraph means that the submission is an official

submission for purposes of § 51.103.

The attached checklist outlines the basi c criteria included under 2.1, 2.2, and 2.3 of

Appendix V.

# SIP Completeness Checklist fo r the April 25, 2005, SIP Submittal

Adoption of 20.2.75 NMAC – Cons truction Permit Fees

Administrative Materials (2.1)

1. The package is sent with a formal submitta l letter from the Governor or his or her

designee requesting EPA’s approval of the revision.

The SIP revision was submitted by a lette r from Governor Bill Richardson, dated

April 25, 2005.

2. Evidence is included that the State has a dopted the revision in the State code or

body of regulations, or that the State ha s issued the permit, order, consent

agreement (hereafter document) in final fo rm. This evidence would include the

date of adoption or final i ssuance and the effective date of revision, if different

from the adoption/issuance date.

The revisions for the April 25, 2005 submittal were adopted by the New Mexico

Environmental Improvement Board on October 27, 2003, filed with the New

Mexico State Records Center on October 30, 2003, and became effective

December 1, 2003.

3. Evidence is included that the State has necessary legal authority under State law

to adopt and implement the revision, e .g., a citation of the appropriate State

authority.

The authority for promulgating changes to the New Mexico State Implementation

Plan, Part 75 – Construction Permit Fees is found in Paragraph 4 of Subsection

A of Section 74-1-8 of th e Environmental Improvement Act and Paragraph 6 of

Subsection B of Section 74-2- 7 of the New Mexico Ai r Quality Control Act.

4. A copy is included of the actual regulation or documen t submitted for approval

and incorporation by reference into the SI P including an indication of the changes

made to the existing approved place where applicable. The submittal shall be a

copy of the official State regulation document signed, stamped, and dated by the

appropriate State official i ndicating that it is fully enforceable by the State. The

effective date of the regulation document shall, whenever possible, be indicated in

the document itself.

The April 25, 2005, submittal included a copy of the official State regulation

document filed at the State Record s Center on October 30, 2003, and which

became effective on December 1, 2003.

# 5. Evidence is included that the State followe d all of the procedural requirements of

its laws and/or its constitution in the conducting and completing the

adoption/issuance of the plan.

The SIP submittal package provided evidenc e that legal notices were published in

the local newspaper regarding the revisi ons to the Construction Permit Fees

rules, as well as, information on the p ublic hearing to be held regarding the

proposed changes to the stat e rules and how to subm it comments on the proposed

changes. A copy of the public hearing transcript with supporting exhibits was

also included in the submittal.

6. Evidence is included that public noti ce was given of the proposed changes

consistent with the procedures approved by EPA, including the date of publication

of such notice (e.g., notarize d or certified copies of any public notices published

in newspapers). (The notice should be at least 30 days prior to the public

hearing(s).

Notices of public hearings were publis hed in the following newspaper on the date

listed:

 Las Cruces Sun-News: August 22, 2003

A public hearing was held in Santa Fe, New Mexico on October 27, 2003.

7. A certification is included i ndicating that public hearin g(s) was/were held in

accordance with the information provided in the public notice(s) and the State’s

laws and constitution, if applicable.

See transcriber’s certification at the end of the public hearing transcripts in the

April 25, 2005 SIP submittal.

8. A compilation of public comments and the State’s response is included.

The SIP submittal package included copies of comment received from the public

on the State regulation. The packages also included a copy of the Public Hearing

Transcripts from the October 27, 2003 public hearing, during which public

comments and responses regarding the Part 75 – Construction Permit Fees were

discussed.

Technical Support (2.2)

1. Identification of all regulated polluta nts affected by the revision included.

The SIP submittal only affects the fees paid in order to emit pollutants, but does

not affect emission levels directly.

# 2. Identification of the locations of affected sources including the EPA

attainment/nonattainment de signation of the locations and the status of the

attainment plan for the aff ected area(s) is included.

The provisions contained in 20.2.75 NMAC establishing a revised fee schedule for

construction permits are applicable statewide.

3. Quantifications of the changes in SIP allowable emissions from the affected

sources is included. (Examples include estimates of changes in current actual

emissions from affected sources and/or , where appropriate, quantification of

changes in actual emissions from affect ed sources through calculations of the

differences between certain baseline levels and allowable emissions anticipated if

the revisions were approved.)

Not applicable to this SIP revision. The ne w regulation only affects the fees paid

in order to emit pollutants, but does not affect emission levels directly.

4. Demonstration is included that the NAAQS/PSD increments/RFP demonstration

and visibility as applicable would be pr otected if the revision were approved and

implemented.

Not applicable to this SIP revision. This plan revision does not pertain to redesignating an area to attainment for a national primary am bient air quality

standard. Nor does this revision pertain to prevention of significant deterioration

(PSD) increments and demonstrations of reasonable further progress. The new

regulation only affects the fees paid in or der to emit pollutants, but does not affect

emission levels directly. Because fees have been increased, it is conceivable that a

secondary impact will 

# be to reduce emissions from sources in New Mexico.

5. FOR REDESIGNATIONS:

a. Is there a fully approved maintenan ce plan for the primary ambient air

quality standards for at least 10 years as required by § 175A of the Clean

Air Act?

Not applicable.

b. Are contingency measures included?

Not applicable.

6. Modeling information, if app licable, is required to s upport the proposed revision.

Not applicable.

# 7. Evidence is included where necessary, that emission limitations are based on

continuous emission reduction t echnology (e.g., add-on controls,

industrial/process equipment designs, re formulated materials, etc.).

Not applicable.

8. Evidence is included indicating that a SIP revision contains emission limitations,

work practice standards and recordkeep ing/reporting requirements to ensure

stated emission levels.

Not applicable.

9. Compliance/enforcement strategies including how compliance will be determined

in practice (including at what frequency).

Not applicable.

10. As appropriate, special economic and technol ogical justif ications are included per

applicable EPA policies or an explana tion why such justifications are not

necessary should be included. For exampl e, requests for alternative RACT may

require such justification.

Not applicable. No special economic and te chnical justifications are required by

other applicable EPA policies are necessa ry because no such policies are

relevant in this case.

The April 25, 2005 SIP Submittal meets the completeness criteria established in 40

CFR part 51, Appendix V.III.B. Review with respect to 40 CFR Part 51Evaluation of the April 11, 2002 and April 25, 2005 SIP submittalswith respect to the requirements of 40 CFR Part 51Requirements for the preparation, adoption, and submittal of implementation plans can be found in 40 CFR Part 51. The Part 2provisions for assessing permit fees were evaluated against the applicable requirements in Part 51, includedin Table I below.Table B.I: Analysis ofParts 51 and 70 RequirementsPart 51 – Requirements for Preparation, Adoption,and Submittal of Implementation PlansPart 75, Fees – New Mexico Administrative Code –Construction Permit Fees 20.2.75 NMACPart 75, Fees – New Mexico Administrative Code -Construction Permit Fees,Sections 20.2.75.5 NMAC,20.2.75.7 NMAC, 20.2.75.10-11 NMACSubpart A – Emission Inventory Reporting Requirements Requirements found in 51, Subpart A are not applicable tothe Part or sub-sections underreview in this document.Part 75 and the sub-sectionsestablish procedures forassessing permit fees and other permit program funding,and are not concerned with emissions inventory reporting,nor do they modify current emissions inventory reportingrequirements for the NewMexico EnvironmentalDepartment (Department).Requirements found in 51, Subpart A are not applicable tothe Part or sub-sections underreview in this document.Part 75 and the sub-sectionsestablish procedures forassessing permit fees and other permit program funding,and are not concerned with emissions inventory reporting,nor do they modify current emissions inventory reportingrequirements for the NewMexico EnvironmentalDepartment (Department).Subparts B – E [Reserved]Notapplicable. Notapplicable.Subpart F – Procedural RequirementsSubpart F – Procedural RequirementsSubpart F – Procedural Requirements§ 51.100 Definitions§ 51.100 is not applicable to the Part 75, Fees and subsections under review in this TSD.§ 51.100 is not applicable to the Part 75, Fees and sub-sections under review in this TSD.§ 51.101 Stipulations§ 51.101 is not applicable to the Part 75, Fees and subsections under review in this TSD.§ 51.101 is not applicable to the Part 75, Fees and sub-sections under review in this TSD.§ 51.102 Public HearingsStates must conduct one or more public hearingsPublic hearings will only be held afterreasonable notice, given atleast 30 days prior tothe date of the hearingThe state must submit with the revision acertification that the hearing was held inaccordance with this sectionNew Mexico SIP Submittal – Part 75 ConstructionPermit Fees:April 11, 2002 SubmittalThe Department held a public hearing on the repealand replacement 20.2.75 rule package of the 2001submittal in Albuquerque, NM on December 1,2000.The public hearing was heldafter reasonable noticewas given. The Departmentpublished notice of thepublic hearing in the following newspaper on thedates listed below for this rule package:New Mexico SIP Submittal – Part 75 ConstructionPermit Fees:April 25, 2005 SubmittalThe Department held a public hearing on therevisions to the 20.2.75 rule for Sections 20.2.75.5NMAC, 20. 2.75.7, and 2.75.5.10-11 NMAC of the2005 submittal in Santa Fe, NM on October 27,2003.The public hearing was heldafter reasonable noticewas given. The Departmentpublished notice of thepublic hearing in the following newspaper on thePart 51 – Requirements for Preparation, Adoption,and Submittal of Implementation PlansPart 75, Fees – New Mexico Administrative Code –Construction Permit Fees 20.2.75 NMACPart 75, Fees – New Mexico Administrative Code -Construction Permit Fees,Sections 20.2.75.5 NMAC,20.2.75.7 NMAC, 20.2.75.10-11 NMACAlbuquerque Journal – 12/1/00;A copy of the public hearing transcript was includedin the submittal, which documented that the hearingwas conducted pursuant tothe provisions of Section74-1-9 NMSA and the rules of procedure for theNew Mexico Environmental Improvement Boardregulation hearings and other applicable procedures.dates listed below for this rule package:Las Cruces Sun-News – 08/22/03;A copy of the public hearing transcript was includedin the submittal, which documented that the hearingwas conducted pursuant tothe provisions of Section74-1-9 NMSA and the rules of procedure for theNew Mexico Environmental Improvement Boardregulation hearings and other applicable procedures.§ 51.103 Submission of plans, preliminary review ofplansThe state makes an official plan submission toEPA only when the submission conforms to therequirements of Part51, Appendix V.The state delivers 5 copies of the plan with aletter giving notice ofthe action to the EPAregional office.Please see Section V of this document for the completedAppendix V checklists for the rule package.The rule package meets the requirements forcompleteness.Please see Section V of this document for the completedAppendix V checklists for the rule package.The rule package meets the requirements forcompleteness.§ 51.104 RevisionsStates may revise the plan from time to timeEPA will approve revisions only afterappropriate public hearing requirements havebeen metRevisions must be submitted in accordance with51.103New Mexico submitted the repeal and replacement 20.2.75NMAC rule package, through Governor Gary Johnson onApril 11, 2002.New Mexico submitted revised sections 20.2.75.5,20.2.75.7, 20.2.75.10, and 20.2.75.11 NMAC, throughGovernor Bill Richardson on April 25, 2005.Subpart G – Control StrategyRequirements found in 51, Subpart G are not applicable tothe sections under review in this document. The April 11,2002 repeal and replacement 20.2.75 rule packageestablishes procedures forassessing permit fees and arenot concerned with control strategies necessary to attain ormaintain NAAQS.Requirements found in 51, Subpart G are not applicable tothe sections under review inthis document. Sections20.2.75.5, 20.2.75.7, 20.2.75.10, and 20.2.75.11 NMACestablish procedures for assessing permit fees and are notconcerned with control strategies necessary to attain ormaintain NAAQS.Subpart H – Prevention of Air Pollution EmergencyEpisodesRequirements found in 51, Subpart G are not applicable tothe sections under review in this document. The April 11,2002 repeal and replacement 20.2.75 rule packageestablishes procedures forassessing permit fees and arenot concerned with air pollution emergency episode plans.Requirements found in 51, Subpart G are not applicable tothe sections under review inthis document. Sections20.2.75.5, 20.2.75.7, 20.2.75.10, and 20.2.75.11 NMACestablish procedures for assessing permit fees and are notconcerned with air pollutionemergency episode plans.Subpart I – Review of New Sources and Modifications Subpart I – Review of New Sources and Modifications Subpart I – Review of New Sources and Modifications§ 51.160 Legally enforceable proceduresThe requirements of§51.160 are not applicable to theprovisions for permit fees for NSR, PSD, and renewalThe requirements of§51.160 are not applicable to theprovisions for permit fees for NSR, PSD, and renewalPart 51 – Requirements for Preparation, Adoption,and Submittal of Implementation PlansPart 75, Fees – New Mexico Administrative Code –Construction Permit Fees 20.2.75 NMACPart 75, Fees – New Mexico Administrative Code -Construction Permit Fees,Sections 20.2.75.5 NMAC,20.2.75.7 NMAC, 20.2.75.10-11 NMACEach plan must set forth legally enforceable proceduresthat enable the State or local agency to determine whetherthe construction or modification of a facility, building,structure or installation, or combination of these will resultin:A violation of applicable portions of the controlstrategy; orInterference with attainment or maintenance of anational standard in the State in which the proposedsource (or modification) islocated or in a neighboringState.Such procedures must include means by which the State orlocal agency responsible for final decision making on anapplication for approval toconstruct or modify willprevent such construction or modification if:It will result in a violation of applicable portions ofthe control strategy; orIt will interfere with the attainment or maintenance ofa national standard.The procedures must provide for the submission, by theowner or operator of the building, facility, structure, orinstallation to be constructed or modified, of suchinformation on:The nature and amounts of emissions to be emitted byit or emitted by associated mobile sources;The location, design, construction, and operation ofsuch facility, building, structure, or installation asmay be necessary to permit the State or local agencyto make the determination referred to in the firstparagraph of this section.The procedures must provide that approval of anyconstruction or modification must not affect theresponsibility to the owner or operator to comply withapplications.The permitting fee provisions established in 20.2.75NMAC submittal are not designed to determine whetherthe construction or modification results in a violation ofapplicable portions of the control strategy (§51.160(a)(1))or interfere with attainmentor maintenance of the NAAQS(§51.160(a)(2)).EPA has approved the nonattainment and PSD portions ofthe Department permitting program as sufficient todetermine whether the proposed construction ormodification results in a violation of the control strategyand/or attainment ormaintenance of the NAAQS.applications.The provisions established in 20.2.75.5, 20.2.75.7,20.2.75.10, and 20.2.75.11NMAC revisions are notdesigned to determine whether the construction ormodification results in a violation of applicable portions ofthe control strategy (§51.160(a)(1)) or interfere withattainment or maintenance of the NAAQS (§51.160(a)(2)).EPA has approved the nonattainment and PSD portions ofthe Department permitting program as sufficient todetermine whether the proposed construction ormodification results in a violation of the control strategyand/or attainment ormaintenance of the NAAQS.Part 51 – Requirements for Preparation, Adoption,and Submittal of Implementation PlansPart 75, Fees – New Mexico Administrative Code –Construction Permit Fees 20.2.75 NMACPart 75, Fees – New Mexico Administrative Code -Construction Permit Fees,Sections 20.2.75.5 NMAC,20.2.75.7 NMAC, 20.2.75.10-11 NMACapplicable portions of the control strategy.The procedures must identify types and sizes of facilities,buildings, structures, or installations which will be subjectto review under this section. The plan must discuss thebasis for determining which facilities will be subject toreview.§ 51.161 Public availability of informationRequirements found in§51.161 are not directly applicableto the provisions for assessing permit fees. The April 11,2002 repeal and replacement 20.2.75 rule packageestablishes fee schedules and payment procedures forowners or operators. The fees are due at the time thepermit applications or renewal applications are submittedto the Department. The permitswould then be available tothe public during the established permit reviewprocedures.Requirements found in§51.161 are not directly applicableto the provisions for assessing permit fees. The revisionsto 20.2.75.5, 20.2.75.7, 20.2.75.10, and 20.2.75.11 NMACestablish fee schedules and payment procedures forowners or operators. The fees are due at the time thepermit applications are submitted to the Department. Thepermits would then be available to the public during theestablished permit review procedures.§ 51.162 Identification of responsible agencyThe SIP revision establishes that the New MexicoEnvironmental Department is the responsible agency forfee assessment and collection.The SIP revision establishes that the New MexicoEnvironmental Department is the responsible agency forfee assessment and collection.§ 51.163 Administrative ProceduresRequirements found in § 51.163 are not applicable to thesections under review in this document.Sections underreview in the 20.2.75 NMAC submittal establishprocedures for assessing permitfees and are not concernedwith a determination of attainment of standards orviolations of control strategy.Requirements found in § 51.163 are not applicable to thesections under review in this document.Sections20.2.75.5, 20.2.75.7, 20.2.75.10, and 20.2.75.11 NMACestablish procedures for assessing permit fees and are notconcerned with a determinationof attainment of standardsor violations of control strategy.§ 51.164 Stack Height RequirementsRequirements found in § 51.164are not applicable to thesections under review in this document.Sections underreview in the 20.2.75 NMAC submittal establishprocedures for assessing permitfees and are not concernedwith stack height requirements.Requirements found in § 51.164 are not applicable to thesections under review in this document.Sections20.2.75.5, 20.2.75.7, 20.2.75.10, and 20.2.75.11 NMACestablish procedures for assessing permit fees are notconcerned with stack height requirements.§ 51.165 Permit RequirementsRequirementsfound in § 51.165 are not applicable to theSIP submittal under review in this document forconstruction in non-attainmentareas, except with respectto compliance with federal definitions or demonstration ofequivalency. § 51.165 appliesto SIPs satisfying sections172(c)(5) and 173 of the CAA.Requirements found in § 51.165 are not applicable to theSIP submittal under review in this document forconstruction in non-attainmentareas, except with respectto compliance with federal definitions or demonstration ofequivalency. § 51.165 appliesto SIPs satisfying sections172(c)(5) and 173 of the CAA.Part 51 – Requirements for Preparation, Adoption,and Submittal of Implementation PlansPart 75, Fees – New Mexico Administrative Code –Construction Permit Fees 20.2.75 NMACPart 75, Fees – New Mexico Administrative Code -Construction Permit Fees,Sections 20.2.75.5 NMAC,20.2.75.7 NMAC, 20.2.75.10-11 NMACThe Department preconstruction permitting program underPart 79 of the SIP will serve to satisfy the requirements of§ 51.165. The SIP does establish schedules and proceduresfor assessing fees for construction in non-attainment areas,and is subject to compliancewith federal definition ordemonstration of equivalency.The Department preconstruction permitting program underPart 79 of the SIP will serve to satisfy the requirements of§ 51.165. The SIP revision does establish schedules andprocedures for assessing fees for construction in nonattainment areas, and is subject to compliance with federaldefinition or demonstration of equivalency.§ 51.166 Prevention of Significant Deterioration of AirQualityRequirements found in § 51.166 are not applicable to theSIP submittal under review in this document forconstruction of PSD sources.The SIP does establish schedules and procedures forassessing fees for construction of PSD sources, and issubject to compliance with federal definition ordemonstration of equivalency.Requirements found in § 51.166 are not applicable to theSIP submittal under review in this document forconstruction of PSD sources.The SIP revision does establish schedules and proceduresfor assessing fees for construction of PSD sources, and issubject to compliance with federal definition ordemonstration of equivalency.Subpart G – Control StrategyRequirements found in 51, Subpart G are not applicable tothe SIP submittal under review in this document. The SIPestablishes procedures for assessing permit fees and is notconcerned with development or maintenance of theControl Strategy for SIPs.Requirements found in 51, Subpart G are not applicable tothe revised sections in the SIP submittal under review inthis document. The SIP revisions establish procedures forassessing permit fees and are not concerned withdevelopment or maintenance ofthe Control Strategy forSIPs.Subpart H – Prevention of Emergency Episodes Requirements found in 51, Subpart H are not applicable tothe SIP submittal under review in this document. The SIPestablishes procedures for assessing permit fees and is notconcerned with emergency episodes.Requirements found in 51, Subpart H are not applicable tothe revised sections in the SIP submittal under review inthis document. The SIP revisions establish procedures forassessing permit fees and are not concerned withemergency episodes.Subpart J – Ambient Air Quality Surveillance Requirements found in 51, Subpart J are not applicable tothe SIP submittal under review in this document. The SIPestablish procedures for assessing permit fees and are notconcerned with ambient air quality surveillance.Requirements found in 51, Subpart J are not applicable tothe revised sections in the SIP submittal under review inthis document. The SIP revisions establish procedures forassessing permit fees and arenot concerned with ambientair quality surveillance.Subpart K – Source SurveillanceRequirements found in 51, Subpart K are not applicable tothe SIP submittal under review in this document. The SIPestablish procedures for assessing permit fees and are notconcerned with source surveillance.Requirements found in 51, Subpart K are not applicable tothe revised sections in the SIP submittal under review inthis document. The SIP revisions establish procedures forassessing permit fees and are not concerned with sourcesurveillance.Subpart L – Legal AuthorityNew Mexico identified in the two submittal packages thateach SIP revision was developed in according toNew Mexico identified in the two submittal packages thateach SIP revision was developed in according toPart 51 – Requirements for Preparation, Adoption,and Submittal of Implementation PlansPart 75, Fees – New Mexico Administrative Code –Construction Permit Fees 20.2.75 NMACPart 75, Fees – New Mexico Administrative Code -Construction Permit Fees,Sections 20.2.75.5 NMAC,20.2.75.7 NMAC, 20.2.75.10-11 NMACapplicable statutes and what the underlying authorities forthose revisions were. Pleasesee section III.A of thisdocument for the Part 51, Appendix V checklist for eachsubmittal, which contains additional information regardinglegal authority.applicable statutes and what the underlying authorities forthose revisions were. Pleasesee section III.A of thisdocument for the Part 51, Appendix V checklist for eachsubmittal, which contains additional information regardinglegal authority.Subpart M – Intergovernmental Consultation Requirements found in 51, Subpart M are not applicable tothe sections under review in this document. The SIPsubmittal establishes procedures for assessing permit feesand is not necessary for establishing which organizationswill participate in the development, implementation, andenforcement of the SIP.Requirements found in 51, Subpart M are not applicable tothe sections under review in this document. The SIPsubmittal establishes procedures for assessing permit feesand is not necessary for establishing which organizationswill participate in the development, implementation, andenforcement of the SIP.Subpart N – Compliance ScheduleRequirements found in 51, Subpart N are not applicable tothe SIP submittal, which establishes procedures forassessing permit fees. Theserevisions for fee schedulesand payments do not establish a compliance schedule.Requirements found in 51, Subpart N are not applicable tothe revised sections in this SIP submittal, whichestablishes procedures forassessing permit fees. Theserevisions for fee schedules and payments do not establish acompliance schedule.Subpart O – Miscellaneous Plan Content Requirements Requirements found in 51, Subpart O are not applicable tothe SIP submittal, which establishes procedures forassessing permit fees. It isnot necessary that thesesections establish electronicreporting procedures, publicnotification requirements, or that the Department have thenecessary resources to implement the SIP.Requirements found in 51, Subpart O are not applicable tothe revised sections in this SIP submittal, whichestablishes procedures for assessing permit fees. It is notnecessary that these sections establish electronic reportingprocedures, public notificationrequirements, or that theDepartment have the necessary resources to implement theSIP.Subpart P – Protection of VisibilityRequirements found in 51, Subpart P are not applicable tothe SIP submittal, which establishes procedures forassessing permit fees, and are not submitted as part of theDepartment’s protection of visibility program.Requirements found in 51, Subpart P are not applicable tothe revised sections in this SIP submittal, whichestablishes procedures forassessing permit fees, and arenot submitted as part of the Department’s protection ofvisibility program.Subpart Q – ReportsRequirements found in 51, Subpart Q are not applicable tothe SIP submittal, which establishes procedures forassessing permit fees and does not establish new reportingrequirements.Requirements found in 51, Subpart Q are not applicable tothe sections under review in this document, whichestablish procedures for assessing permit fees and do notestablish new reporting requirements.Subpart R – ExtensionsRequirements found in 51, Subpart R are not applicable tothe SIP submittal, which establishes procedures forassessing permit fees and is notrelated to a request for an18-month extension.Requirements found in 51, Subpart R are not applicable tothe sections under review in this document, whichestablishes procedures for assessing permit fees and is notrelated to a request for an 18-month extension.Subpart S – Inspection/Maintenance ProgramRequirements found in 51, Subpart S are notapplicable to Requirements found in 51, Subpart S are not applicable toPart 51 – Requirements for Preparation, Adoption,and Submittal of Implementation PlansPart 75, Fees – New Mexico Administrative Code –Construction Permit Fees 20.2.75 NMACPart 75, Fees – New Mexico Administrative Code -Construction Permit Fees,Sections 20.2.75.5 NMAC,20.2.75.7 NMAC, 20.2.75.10-11 NMACRequirementsthe SIP submittal, establishes procedures for assessingpermit fees and does not establish I/M programs.the sections under review in this document, whichestablishes procedures forassessing permit fees and doesnot establish I/M programs.Subpart T – Conformity to State or FederalImplementation Plans of Transportation Plans, Programs,and Projects Developed, Funded, or Approved Under Title23 U.S.C or the Federal Transit LawsRequirements found in 51, Subpart T are not applicable tothe SIP submittal, which establishes procedures forassessing permit fees and are not associated withconformity to State or Federal Transportation plans.Requirements found in 51, Subpart T are not applicable tothe sections under review in this document, whichestablishes procedures forassessing permit fees and arenot associated with conformity to State or FederalTransportation plans.Subpart U – Economic Incentive Programs Requirements found in 51, Subpart U are not applicable tothe SIP submittal, which establishes requirements forstatutorily mandated EIPs.Requirements found in 51, Subpart U are not applicable tothe sections under review in this document, whichestablishes requirements forstatutorily mandated EIPs.Subpart W – Determining Conformity of General FederalActions to State or Federal Implementation PlansRequirements found in 51, Subpart W are not applicable tothe SIP submittal, which establishes procedures forassessing permit fees and are not associated withconformity.Requirements found in 51, Subpart W are not applicable tothe revised sections in the SIP submittal under review inthis document, which establishes procedures for assessingpermit fees and are not concerned with conformity.Subpart X – Provisions for Implementation of 8-hr OzoneNAAQSRequirements found in 51, Subpart X are not applicable tothe SIP submittal, which establishes procedures forassessing permit fees and are not associated with theimplementation of the 8-hour ozone NAAQS.Requirements found in 51, Subpart X are not applicable tothe revised sections in the SIP submittal under review inthis document. The SIP revisions establish procedures forassessing permit fees and are not associated with theimplementation of the 8-hour ozone NAAQS.Subpart Y – Mitigation RequirementsRequirements found in 51, Subpart Y are not applicable tothe SIP submittal, which establishes procedures forassessing permit fees and are not associated with themitigating requirements of exceptional events.Requirements found in 51, Subpart Y are not applicable tothe revised sections of the SIP submittal, which establishesprocedures for assessing permit fees and are not associatedwith the mitigating requirements of exceptional events.Subpart Z – Provisionsfor Implementation of PM2.5NAAQSRequirements found in 51, Subpart Z are not applicable tothe SIP submittal, which establishes procedures forassessing permit fees and are not associated with theimplementation of the PM2.5NAAQS.Requirements found in 51, Subpart Z are not applicable tothe revised sections of the SIP submittal, which establishesprocedures for assessing permit fees and are not associatedwith the implementation of the PM2.5NAAQS.

# III.C. Section-by-Section Review

The April 11, 2002 submittal repeals the current SIP approved Part 20.2.75 NMAC and

replaces with new provisions for Construction Permit Fees under the same section. The

2011 repeal and replacement serves as the baseline regulation for evaluation of the

revisions to Sections 20.2.75.5, 20.2.75.7, 20.2.75.10, and 20.2.75.11 NMAC contained

in the April 25, 2005 SIP submittal. All cha nges from the repeal and replacement and

revisions must be reviewed with respect to the requirements for Fees under CAA §

110(a)(2), sufficient fees, as requirements of the State implementation plans for national

primary and secondary ambient air quality standards (42 U.S.C. 7410, et seq .).

The analysis contained in the following tables will review each of th e revised sections of

20.2.75 NMAC contained in the April 11, 2002 and April 25, 2005 SIP submittals to

further analyze whether the submitted revisi ons as a whole support the CAA, EPA policy

and guidance for NSR permitting.Table C.I: Evaluation of 20.2.75.1 NMAC – Issuing Agency.Repeal and Replace submitted April 11, 2002(Being established as surrogate baseline for comparativeanalysis only, as is also underreview for approval in thisfederal action. Previously approved SIP, last approvedfor fees is substantively different and a direct comparisonis not practical)Revision submitted April 25, 2005CommentsEnvironmental Improvement Board.No ChangeThis section establishes the issuing agency for the Part 75– Construction Permit Fees and was included in the April11, 2002 Repeal and Replacement submittal. The sectionwas not revised as part of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).Table C.II: Evaluation of 20.2.75.2 NMAC – Scope.Repeal and Replace submitted April 11, 2002(Being established as surrogate baseline for comparativeanalysis only, as is also underreview for approval in thisfederal action. Previously approved SIP, last approvedfor fees is substantively different and a direct comparisonis not practical)Revision submitted April 25, 2005CommentsA.All persons who apply fora permit to construct ormodify a source or revise a permit, or who request atechnical review of an existing permit under 20.2.72NMAC. Part 70 (20.2.70 NMAC) operating permitemission fees are covered under 20.2.71 NMAC.No ChangeThis section specifies whatpersons would be potentiallysubject to Part 75 – Construction Permit Fees and wasincluded in the April 11, 2002 Repeal and Replacementsubmittal. The section also states that operating permitfees are covered under a separate Part (20.2.71 NMAC).The section was not revised as part of the April 25, 2005revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).B.The requirements concerning the payment of an annualfee shall apply to sources with an air quality constructionpermit for which the application to either revise, modify orfor a new permit was receivedfollowing the effective dateof this regulation.No ChangeThis section specifies what sources would be subject to theannual fees contained in Part 75 – Construction PermitFees and was included in the April 11, 2002 Repeal andReplacement submittal. The section was not revised aspart of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).Table C.III: Evaluation of20.2.75.3 NMAC – Statutory Authority.25Repeal and Replace submitted April 11, 2002(Being established as surrogate baseline for comparativeanalysis only, as is also underreview for approval in thisfederal action. Previously approved SIP, last approvedfor fees is substantively different and a direct comparisonis not practical)Revision submitted April 25, 2005CommentsEnvironmental ImprovementAct, Paragraph 4 ofSubsection A of Section 74-1-8 NMSA 1978, and AirQuality Control Act, Chapter 74, Article 2 NMSA 1978,including specifically, Paragraph 6 of Subsection B ofSection 74-2-7 NMSA 1978.No ChangeThis section identifies the statutory authority for the Part75 – Construction Permit Fees and was included in theApril 11, 2002 Repeal and Replacement submittal. Thesection was not revised as part of the April 25, 2005revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).Table C.IV: Evaluation of 20.2.75.4 NMAC – Duration.Repeal and Replace submitted April 11, 2002(Being established as surrogate baseline for comparativeanalysis only, as is also underreview for approval in thisfederal action. Previously approved SIP, last approvedfor fees is substantively different and a direct comparisonis not practical)Revision submitted April 25, 2005CommentsPermanent.No ChangeThis section specifies the duration for the Part 75 –Construction Permit Fees and was included in the April11, 2002 Repeal and Replacement submittal. The sectionwas not revised as part of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).Table C.V: Evaluation of 20.2.75.5 NMAC – Effective Date.Repeal and Replace submitted April 11, 2002(Being established as surrogate baseline for comparativeanalysis only, as is also underreview for approval in thisfederal action. Previously approved SIP, last approvedfor fees is substantively different and a direct comparisonis not practical)Revision submitted April 25, 2005CommentsMarch 2, 2001.March 2, 2001 except where a later date is cited at the endof a section.This section specifies the effective date of Part 75 –Construction Permit Fees and was included in the April11, 2002 Repeal and Replacement submittal. 20.2.75.5NMAC was revised as part of the April 25, 2005 revision26to update the effective dateto account for current (andfuture revisions to Part 75.The provision and revisions toit do not impact the rule’sability to meet the requirements for fees under CAA §110(a)(2).A. For applications received prior to the effective date ofthis regulation, the provisions in 20.2.75 NMAC, aseffective as of the date of the receipt of the application,remain effective, and fees shall be so determined.No ChangeThis section specifies the effective date for feedetermination for sources with permit application receivedprior to the effective date for Part 75 – ConstructionPermit Fees and was includedin the April 11, 2002 Repealand Replacement submittal. The section was not revisedas part of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).B.For applications received following the effective dateof this regulation, fees shall be based on the currentregulation.No ChangeThis section specifies the effective date for feedetermination for sources with permit application receivedfollowing the effective date for Part 75 – ConstructionPermit Fees and was includedin the April 11, 2002 Repealand Replacement submittal. The section was not revisedas part of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).Table C.VI: Evaluation of 20.2.75.6 NMAC – Objective.Repeal and Replace submitted April 11, 2002(Being established as surrogate baseline for comparativeanalysis only, as is also underreview for approval in thisfederal action. Previously approved SIP, last approvedfor fees is substantively different and a direct comparisonis not practical)Revision submitted April 25, 2005CommentsThe objective of this Part isto establish a schedule of feesfor the construction permit program, includingconstruction permits, permitrevisions, and technicalreviews of existing permits.No ChangeThis section specifies the objections of the Part 75 –Construction Permit Fees and was included in the April11, 2002 Repeal and Replacement submittal. The sectionwas not revised as part of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).Table C.VII: Evaluationof 20.2.75.7 NMAC – Definitions.Repeal and Replace submitted April 11, 2002(Being established as surrogate baseline for comparativeRevision submitted April 25, 2005 Comments27analysis only, as is also underreview for approval in thisfederal action. Previously approved SIP, last approvedfor fees is substantively different and a direct comparisonis not practical)In addition to the terms defined in 20.2.2 NMAC(Definitions) or 20.2.72 NMAC(Construction Permits), asused in this Part:No ChangeThis section serves as anintroduction to the Definitionscontained in Part 75 – Construction Permit Fees and wasincluded in the April 11, 2002 Repeal and Replacementsubmittal. The section was not revised as part of the April25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).A. "Air toxics review'' means the required review of apermit application for the potential emission of an air toxicregulated by 20.2.72.400 NMAC - 20.2.72.499 NMAC.As used in this Part, a Level Iair toxics review consists ofmodeling to determine whether one one-hundredth (1/100)of the occupational exposure limit, as defined in20.2.72.401 NMAC, is met; a Level II air toxics reviewconsists of either a health assessment or Best AvailableControl Technology (BACT) determination, whichever isrequired by 20.2.72.400 NMAC - 20.2.72.499 NMAC.No ChangeThis section includes the definition of “air toxics review”and was included in the April 11, 2002 Repeal andReplacement submittal. The section was not revised aspart of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).B. "Applicable regulations",for the purpose of assessingpermit fee points, mean those regulations that areapplicable to the source and not the review to determinewhether the regulation is applicable. Applicableregulations do not include 20.2.1 NMAC (GeneralProvisions), 20.2.2 NMAC (Definitions), 20.2.3 NMAC(Ambient Air Quality Standards), 20.2.5 NMAC (SourceSurveillance), 20.2.7 NMAC (Excess Emissions duringMalfunctions, Startup, Shutdown, or ScheduledMaintenance), 20.2.8 NMAC (Emissions Leaving NewMexico), 20.2.60 NMAC (Open Burning), 20.2.70 NMAC(Operating Permits), 20.2.71 NMAC (Operating PermitEmission Fees), 20.2.72 NMAC (Construction Permits),20.2.73 NMAC (Notice of Intent and Emission InventoryRequirements), 20.2.74 NMAC(Prevention of SignificantDeterioration (PSD)), 20.2.75 NMAC (ConstructionPermit Fees), 20.2.77 NMAC (New Source PerformanceStandards), 20.2.78 NMAC(Emission Standards forHazardous Air Pollutants), 20.2.79 NMAC (Permits -Nonattainment Areas), 20.2.80 NMAC (Stack Heights),No ChangeThis section includes thedefinition of “applicableregulations” and was included in the April 11, 2002Repeal and Replacement submittal. The section was notrevised as part of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).28and 20.2.82 NMAC (MaximumAchievable ControlTechnology Standards for Source Categories of HazardousAir Pollutants). All other Title 20, Chapter 2 NMAC Partsand all New Source Performance Standards (excludingSubpart A) and NationalEmission Standards forHazardous Air Pollutants/Maximum Achievable ControlTechnology (NESHAP/MACT) (excluding 40 CFR Part61 Subparts A and M and 40 CFR Part 63 Subpart A)regulations that are applicable to the source shall becounted and shall result in additional points for permit feespurposes, in accordance withthe permit fee schedule inthis Part.C. "Fee unit" means any equipment or process whichgenerates, creates, or is the source of a regulated aircontaminant, which is listed or identified in a constructionpermit application or application to revise a permit andwhich requires review and evaluation against state andfederal regulations and standards. This definition does notinclude sources which are exempt under 20.2.72.202NMAC or sources for which no applicable requirementsare identified in the permit. In the case of a permitmodification, revision or technical review of an existingpermit, the requirements ofSubsection A of 20.2.75.110NMAC apply only to the equipment or process involved insuch modification, revision or review.C. "Fee unit" means any equipment or process whichgenerates, creates, or is the source of a regulated aircontaminant, which is listed or identified in a constructionpermit application or application to revise a permit andwhich requires review and evaluation against state andfederal regulations and standards. This definition does notinclude sources which are exempt under 20.2.72.202NMAC or sources for which no applicable requirementsare identified in the permit. In the case of a permitmodification, revision or technical review of an existingpermit, the requirements ofSubsection A of [20.2.75.110]20.2.75.11NMAC apply only to the equipment or processinvolved in such modification, revision or review.This section includes the definition of “fee unit” and wasincluded in the April 11, 2002 Repeal and Replacementsubmittal. The section was revised as part of the April 25,2005 revisions to correct a typographical error in thereference to 20.2.75.11 NMAC.The provision and revisions toit do not impact the rule’sability to meet the requirements for fees under CAA §110(a)(2).D. "Fugitive Emissions Fee Unit" means sources offugitive emissions for which applicable requirements areidentified in the permit. A maximum of one fugitiveemissions fee unit shall be applied to any givenapplication.No ChangeThis section includes the definition of “fugitive emissionsfee unit” and was included in the April 11, 2002 Repealand Replacement submittal. The section was not revisedas part of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).E. "Revision" means any change requested by anapplicant to any term or condition of a permit includingbut not limited to emission limitations, controltechnology, operating conditions and monitoringrequirements. For the purposesof this regulation, revisiondoes not include administrative revision as used in20.2.72 NMAC.No ChangeThis section includes the definition of “revision” and wasincluded in the April 11, 2002 Repeal and Replacementsubmittal. The section was not revised as part of the April25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).F. "Small business" means, for the purposes of this Part, acompany that employs no more than ten(10) employees at any time during the calendar year.No ChangeThis section includes the definition of “small business”and was included in the April 11, 2002 Repeal andReplacement submittal. The section was not revised as29Employees include part-time, temporary, or limitedservice workers. For new sources, the responsiblecompany official shall certify that the source does notexpect to employ any more than ten (10) employees in thefirst year of operations. In addition, "small business" doesnot include (1) any source which may emit more than fifty(50) tons per year of any regulated air contaminant forwhich there is a National or New Mexico Ambient AirQuality Standard, or seventy-five(75) tons per year of allregulated air contaminants for which there are National orNew Mexico Ambient Air Quality Standards; and (2) anymajor source for hazardous air pollutants under 20.2.70NMAC.part of the April 25, 2005 revisions. NMED references thedefinition of “small business”contained in Section 507 ofthe Clean Air Act during the public hearing on therevisions contained in the April 11, 2002 submittal.NMED stated that the definition contained in 20.2.75NMAC is the same as thatfound in Section 507 of CAA,with the exception that NMED has limited the number ofemployees to 10, instead of100, within the definition.NMED indicates that the CAA definition would be tooexpansive based on the typesof business located in NewMexico; therefore, the number of employees was reducedin the state’s definition. NMED indicated that as part oftheir triennial review, theywill review the number ofapplicants invoking the small business fee reduction andadjust as necessary. Currently, the more stringentdefinition contained in 20.2.75.7 NMAC results in lessbusinesses qualifying for a small business fee reduction.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).G. "Technical review of anexisting permit" means theDepartment's technical review of new informationsubmitted by a permittee as required by an existing permitcondition and in conjunction with proposed changes at thesource that do not involve any changes to the existingpermit. The review must be necessary to demonstrate thatall applicable state and federal regulations and standardswill continue to be met and that the existing permit willcontinue to be valid. This does not include requiredperiodic reports.No ChangeThis section includes the definition of “technical review ofan existing permit” and was included in the April 11, 2002Repeal and Replacement submittal. The section was notrevised as part of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).Table C.VIII: Evaluation of 20.2.75.8 NMAC – Amendment and Supersession of Prior Regulations.Repeal and Replace submitted April 11, 2002(Being established as surrogate baseline for comparativeanalysis only, as is also underreview for approval in thisfederal action. Previously approved SIP, last approvedfor fees is substantively different and a direct comparisonis not practical)Revision submitted April 25, 2005CommentsThis Part amends and supersedes Air Quality ControlRegulation 700 - Filing and Permit Fees, filed November20, 1989, as amended (AQCR 700).No ChangeThis section states that the Part 75 – Construction PermitFees amends andsupersedes AQCR 700 and was includedin the April 11, 2002 Repeal and Replacement submittal.30The section was not revised as part of the April 25, 2005revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).A. All references to AQCR 700 in any other rule shall beconstrued as a reference to this Part.No ChangeThis section states that all references to AQCR 700 in anyother rule should be construed as a reference to Part 75 –Construction Permit Fees and was included in the April11, 2002 Repeal and Replacement submittal. The sectionwas not revised as part of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).B. The amendment and supersession of AQCR 700 shallnot affect any administrative or judicial enforcementaction pending on the effective date of such amendmentnor the validity of any permit issued pursuant to AQCR700.No ChangeThis section clarifies that the amendment and supersessionof AQCR 700 does not affect any pending administrativeor judicial enforcement pending on the date of amendmentand does not affect the validity of any permit issuedpursuant to AQCR 700. This section was included in theApril 11, 2002 Repeal and Replacement submittal. Thesection was not revised as part of the April 25, 2005revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).Table C.IX: Evaluation of 20.2.75.9 NMAC – Documents.Repeal and Replace submitted April 11, 2002(Being established as surrogate baseline for comparativeanalysis only, as is also underreview for approval in thisfederal action. Previously approved SIP, last approvedfor fees is substantively different and a direct comparisonis not practical)Revision submitted April 25, 2005CommentsDocuments cited in this Part may be viewed at the NewMexico Environment Department, Air Quality Bureau,Santa Fe, NM.No ChangeThis section provides the viewing location of documentscited in Part 75 – Construction Permit Fees and wasincluded in the April 11, 2002 Repeal and Replacementsubmittal. The section was not revised as part of the April25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).Table C.X: Evaluation of 20.2.75.10 NMAC – Filing Fee.Repeal and Replace submitted April 11, 2002 Revisionsubmitted April 25, 2005Comments31(Being established as surrogate baseline for comparativeanalysis only, as is also underreview for approval in thisfederal action. Previously approved SIP, last approvedfor fees is substantively different and a direct comparisonis not practical)A. A filing fee of five hundred dollars ($500) shall besubmitted with each application for a permit to constructor modify a source, or revision of a permit. The filing feeshall be applied to the total permit fee determined from thefee schedule in 20.2.75.11 NMAC.A. A filing fee of five hundred dollars ($500) shall besubmitted with each filing of a notice of intent,applicationfor a permit to construct or modify a source, or revision ofa permit. The filing fee shall be applied to the total permitfee determined from the fee schedule in 20.2.75.11NMAC.This section specifies the filing fee and how it will beapplied and was included in the April 11, 2002 Repeal andReplacement submittal. The section was revised as part ofthe April 25, 2005 revisions to specify that filing fees alsoapply for the filing of a notice of intent.The provision and revisions toit do not impact the rule’sability to meet the requirements for fees under CAA §110(a)(2).B. For applications submitted under 20.2.72.221 NMAC,Accelerated Review, an accelerated review filing fee ofone thousand dollars ($1,000) shall be submitted in lieu ofany other filing fees under this section. One-half of theaccelerated review filing fee shall be applied to the cost ofthe accelerated review submitted by the qualified outsidefirm. In the event that:(1) There are no qualified outside firms on contractwith the Department, or if all of the qualified outsidefirms have a conflict of interest, the entire filing feeshall be applied to the total permit fee determinedfrom the fee schedule in 20.2.75.11 NMAC;(2) No qualified outside firm submits aproposal forthe accelerated permit review, one-half of this filingfee shall be applied to the total permit fee determinedfrom the fee schedule in 20.2.75.11 NMAC;(3) One or more qualified outside firms submit aproposal but all such proposals are rejected by theapplicant, the accelerated review filing fee shall beforfeited and retained by the Department; or(4) The applicant withdraws the application for anyreason, the accelerated review filing fee shall beforfeited and retained by the Department.No ChangeThis section specifies the filing fee and how it will beapplied for applications submitted under AcceleratedReview and was included in the April 11, 2002 Repeal andReplacement submittal. The section was not revised aspart of the April 25, 2005 revisions.This section establishes filingfees for permitapplicationsfiled under the Accelerated Review provisions of20.2.72.221. New Mexico hasspecifically requested thatthese provisions of Part 72 not be reviewed for approvalinto the SIP. Therefore, the Accelerated Review filing feeprovisions contained in 20.2.75.10(B) are beyond thescope of the SIP and have been withdrawn by NewMexico and are no longer in front of EPA for action.Table C.XI: Evaluationof 20.2.75.11 NMAC – Permit Fee.Repeal and Replace submitted April 11, 2002(Being established as surrogate baseline for comparativeRevision submitted April 25, 2005Comments32analysis only, as is also underreview for approval in thisfederal action. Previously approved SIP, last approved forfees is substantively different and a direct comparison is notpractical)A. The permit fee shall be based on the following pointbased fee schedule.ACTION # OF POINTS1. CONSTRUCTION PERMIT/TECHNICAL REVIEW OFEXISTING PERMITTechnical Complexity1-5 Fee Units 56-15 Fee Units 1 point per fee unit> 15 Fee Units 15Fugitive Emissions Fee Unit 5Non-Attainment Area [20.2.79 NMAC] 75Modeling Review 15Air Toxics Review [20.2.72.400 NMAC- 20.2.72.499 NMAC]Level I 8Level IIBest Available Control Technology (BACT) Analysis 60Health Assessment 100Applicable Regulations20.2.X NMAC (per each) 3NSPS (per each) 5NESHAP/MACT (per each) 5Case-by-case MACT [20.2.83 NMAC] 100PSD netting only (no additional PSD analysis is required) 20PSD review (including netting) 752. OTHER PERMITTING ACTIONSGeneral Permits [20.2.72.220 NMAC] 10Streamline (each site) [20.2.72.300 NMAC-20.2.72.399 NMAC]10A. The permit fee shall be based on the following pointbased fee schedule.ACTION # OF POINTS1. CONSTRUCTION PERMIT/TECHNICAL REVIEW OFEXISTING PERMITTechnical Complexity1-5 Fee Units 56-15 Fee Units 1 point per fee unit> 15 Fee Units 15Fugitive Emissions Fee Unit 5Portable Source Relocation(Paragraph 3 of Subsection D of 20.2.72.202 NMAC)1Non-Attainment Area [20.2.79 NMAC] 75Modeling Review 15Air Toxics Review [20.2.72.400 NMAC- 20.2.72.499 NMAC]Level I 8Level IIBest Available Control Technology (BACT) Analysis 60Health Assessment 100Applicable Regulations20.2.X NMAC (per each) 3NSPS (per each) 5NESHAP/MACT (per each) 5Case-by-case MACT [20.2. 83 NMAC] 100PSD netting only (no additional PSD analysis is required) 20PSD review (including netting) 752. OTHER PERMITTING ACTIONSGeneral Permits [20.2.72.220 NMAC] 10Streamline (each site) [20.2.72.300 NMAC-20.2.72.399 NMAC] 10This section establishes the point schedule for thecomplexity based permit fees for each permit reviewaction and was included in the April 11, 2002 Repealand Replacement submittal. The section was revised aspart of the April 25, 2005 revision to include a pointbasis for Portable SourceRelocation permit reviewactions.The provision and revisions to it do not impact therule’s ability to meet the requirements for fees underCAA § 110(a)(2).B. The fee shall be the sum of all of the points that areapplicable to the permitting action, multiplied by threeNo ChangeThis section establishes the price per point to be used incalculating the permit fee and was included in the April33hundred fifteen dollars ($315).11, 2002 Repeal and Replacement submittal. Thesection was not revised as part of the April 25, 2005revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).C. For sources that satisfy the definition of “small business”as defined in Subsection F of 20.2.75.7 NMAC, the permitfee determined by Subsection B of 20.2.75.11 NMAC shallbe divided by two.C. For sources that satisfy the definition of “small business”as defined in Subsection F of 20.2.75.7 NMAC, the permitfee determined by Subsection B and Eof 20.2.75.11 NMACshall be divided by two.This section specifies how permit fees for sources thatsatisfy the definition of “small business” are determinedand was included in the April 11, 2002 Repeal andReplacement submittal. The section was revised as partof the April 25, 2005 revisions to include a reference tothe annual fee in the “small business” permit feedetermination.The provision and revisions to it do not impact therule’s ability to meet the requirements for fees underCAA § 110(a)(2).D. For applications processed under 20.2.72.221 NMAC,Accelerated Review, the permit fee determined bySubsection B of 20.2.75.11 NMACshall be divided by two,and shall be in addition to the cost of the accelerated reviewbid, as described in 20.2.72.221 NMAC.No ChangeThis section specifies how permit fees are determinedfor applications processed under the AcceleratedReview provisions and was included in the April 11,2002 Repeal and Replacement submittal. The sectionwas not revised as part of the April 25, 2005 revisions.This section specifies permit feesfor permitapplications filed underthe Accelerated Reviewprovisions of 20.2.72.221. New Mexico hasspecifically requested thatthese provisions of Part 72not be reviewed for approval into the SIP. Therefore,the Accelerated Review filing fee provisions containedin 20.2.75.10(B) are beyond the scope of the SIP andhave been withdrawn by New Mexico and are no longerin front of EPA for action.E. Sources that have been issued a construction permitunder 20.2.72 NMAC shall be assessed an annualenforcement/compliance fee of two hundred twenty dollars($220). This fee shall not apply to sources which areassessed an annual fee in accordance with 20.2.71 NMAC.E. Sources that have been issued a construction permitunder 20.2.72 NMAC shall be assessed an annual[enforcement/compliance fee of twohundred twenty dollars($220)] fee of one thousand five hundred dollars ($1,500).This fee shall not apply to sources which are assessed anannual fee in accordance with 20.2.71 NMAC.This section specifies the annualenforcement/compliance fee and was included in theApril 11, 2002 Repeal and Replacement submittal. Thesection was revised as part of the April 25, 2005revisions to increase the annual fee amount from $220to $1,500 and remove “enforcement/compliance” fromthe description of the annual fee.The provision and revisions to it do not impact therule’s ability to meet the requirements for fees underCAA § 110(a)(2).Not included in April 11, 2002 SubmittalF. Beginning in 2005, the cost per point in Subsection B ofthis section and the annualfee in Subsection E of thisThis section was not included in the April 11, 2002Repeal and Replacement submittal, and was added as34section shall be adjusted each year on January 1 to reflectthe increase, if any, by which the consumer price index forthe most recent year exceeds the consumer price index forthe year 2004. The amount of change in the fee shall bedetermined by multiplying the existing fee by the change inthe consumer price index and rounding the result to thenearest dollar. The consumer price index for any year is theaverage of the consumerprice index for all-urbanconsumers published by the United States department oflabor, as of the close of the twelve-month period ending onAugust 31 of that year.part of the April 25, 2005 revisions. The addition ofthis section establishes a procedure to update the costper point and annual fees contained in Part 75 each yearon January 1 based on the consumer price index.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).Table C.XII: Evaluation of20.2.75.12 NMAC – Payment of Fees.Repeal and Replace submitted April 11, 2002(Being established as surrogate baseline for comparativeanalysis only, as is also underreview for approval in thisfederal action. Previously approved SIP, last approvedfor fees is substantively different and a direct comparisonis not practical)Revision submitted April 25, 2005CommentsA. The Department shall refuse to accept any permitapplication without payment ofthe filing fee at the timethe application is received by the Department. Thefiling fee and the accelerated review filing fee are nonrefundable.No ChangeThis section states that the Department will not acceptpermit applicationswithout payment of the associatedfiling fee and was included in the April 11, 2002 Repealand Replacement submittal. The section was not revisedas part of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).B. An invoice for permit fees shall be mailed to theapplicant at the time the Department finds theapplication administratively complete pursuant to20.2.72.203 NMAC. The Department shall deny anypermit application or requestfor permit revision if therequired permit fee has not beenpaid within thirty (30)days of invoicing, unless the Department has granted anextension. If, upon completion of the permit review, theDepartment determines additional fees are due, theDepartment shall mail an invoice to the applicant alongwith the signed permit. The permittee shall pay thisinvoice within thirty (30) days of invoicing, unless theDepartment has granted an extension. In the eventexcess fees were paid, the Department shall issue aNo ChangeThis section establishes procedures for invoicing permitfees and was included in the April 11, 2002 Repeal andReplacement submittal. The section was not revised aspart of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).35refund for excess fees and mail the refund to theapplicant.C. An invoice for a requestfor technical review ofan existing permit shall accompany the Department'sresponse. The applicant orpermittee shall pay forthe review within thirty (30) days of invoicing.No ChangeThis section establishes procedures for invoicing permitfees for technical review applications and was included inthe April 11, 2002 Repeal and Replacement submittal.The section was not revised as part of the April 25, 2005revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).D.Except for the refund of excess fees paid, all fees paidunder this Part shall be non-refundable.No ChangeThis section specifies whatfees are non-refundable andwas included in the April 11, 2002 Repeal andReplacement submittal. The section was not revised aspart of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).E. All fees paid pursuant to this Part shall be remitted inthe form of a corporate or certified check or money ordermade payable to the Environment Department at theaddress specified in the notice. Upon receipt of the check,it shall be deposited in the "state air quality permit fund"established by NMSA 1978, 74-2-15 (1992).No ChangeThis section specifiespayment requirements forConstruction Permit Fees and was included in the April11, 2002 Repeal and Replacement submittal. The sectionwas not revised as part of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).F. Permittees shall pay annualfees within thirty (30)days of receipt of an invoice for annual fees for apermitted facility.No ChangeThis section establishes the timeline for permittees to payannual fees for a permitted facility and was included in theApril 11, 2002 Repeal and Replacement submittal. Thesection was not revised as part of the April 25, 2005revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).G. All fees shall be paid in U.S. dollars.No ChangeThis section specifiespayment requirements forConstruction Permit Fees and was included in the April11, 2002 Repeal and Replacement submittal. The sectionwas not revised as part of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).Table C.XIII: Evaluation of 20.2.75.13 NMAC – Periodic Review.Repeal and Replace submitted April 11, 2002(Being established as surrogate baseline for comparativeanalysis only, as is also underreview for approval in thisfederal action. Previously approved SIP, last approvedRevision submitted April 25, 2005 Comments36for fees is substantively different and a direct comparisonis not practical)The Department shall prepare a review of the constructionpermit fees and construction permit program costsannually. The review shall-include information on thebudgets, expenditures, fundbalance, and relatedprojections. The review shall be presented to the Boardwithin six months following the end of the fiscal year.No ChangeThis section specifies that the Department shall review theconstruction permit fees andconstruction permit programcosts annually and was included in the April 11, 2002Repeal and Replacement submittal. The section was notrevised as part of the April 25, 2005 revisions.The provision does not impact the rule’s ability to meetthe requirements for fees under CAA § 110(a)(2).

# Review of Cross-References in 20.2.75 NMAC – Construction Permit Fees

As part of our evaluation of the Constr uction Permit Fees contained in 20.2.75 NMAC,

we reviewed all cross-references listed in th e fees rule language itsel f. Below is a table

summarizing all the cross-references c ontained in the Construction Permit Fees

provisions and the associated EPA actions.

Construction Permit Fees Cross-References EPA Action

20.2.75.2(A) NMAC references the operating permit

program and associated emissions fees found in 20.2.70

and 20.2.71 NMAC, respectively. 20.2.70 and 20.2.71 NMAC were previously inadvertently

approved into the SIP by EPA. These provisions were

specifically removed from the New Mexico SIP on July

15, 2011 (76 FR 41698) effective August 15, 2011. The

references to these two non-SIP approved Parts in

20.2.75.2(A) provide clarification that fees for the

operating permits program are no t contained in Part 75.

Therefore, the references to Parts 70 and 71 are approved

into the SIP, but the provis ions contained within those

Parts remain out of the New Mexico SIP.

20.2.75.7 NMAC references the terms defined in 20.2.2

and 20.2.72 NMAC as being used in Part 75. Definitions contained in 20. 2.2 and 20.2.72 NMAC were

approved by EPA on September 26, 1997 (62 FR 50518)

effective November 25, 1997.

20.2.75.7(A) NMAC references the air toxics review

regulations contained in 20.2.72.400 NMAC -

20.2.72.499 NMAC. 20.2.72.400 - 20.2.72.499 NMAC contain provisions

relating to the air toxics re view program, which is beyond

the scope of the New Mexico SIP. Therefore, the air

toxics review provisions contained in Part 72 are not

approved into the New Mexico SIP. The references to

these non-SIP approved provisions is used to define the

air toxics review, which is one of the fee elements used to

calculate permit fees using the complexity based fee

schedule. Therefore, the references to 20.2.72.400 -

20.2.72.499 NMAC contained in the definition of “air

toxics review” are approved into the SIP for the purposes

of the Construction Permit Fees, but the provisions

contained within those sections of Part 72 remain out of

the New Mexico SIP.

20.2.75.7(B) NMAC references the provisions contained

in the following Parts in the definition of “applicable

regulations”:

 20.2.1 NMAC (General Provisions)

 20.2.2 NMAC (Definitions)

 20.2.3 NMAC (Ambient Ai r Quality Standards)

 20.2.5 NMAC (Source Surveillance)

 20.2.7 NMAC (Excess Emissions during

Malfunctions, Startup, S hutdown, or Scheduled

Maintenance)

 20.2.8 NMAC (Emissions Leaving New Mexico)

 20.2.60 NMAC (Open Burning)

 20.2.70 NMAC (Operating Permits)

 20.2.71 NMAC (Operatin g Permit Emission Fees)

 20.2.72 NMAC (Construction Permits)

 20.2.73 NMAC (Notice of Intent and Emission

Inventory Requirements)

 20.2.74 NMAC (Prevention of Significant

Deterioration (PSD))

 20.2.75 NMAC (Constr uction Permit Fees)

 20.2.77 NMAC (New Source Performance

Standards)

 20.2.78 NMAC (Emission Standards for Hazardous

Air Pollutants) The referenced provisions are specifically excluded from

the definition of “applicable regulations” as defined in

Part 75. The following referenced Parts are SIP

approved:

 20.2.1 NMAC approved on August 12, 2010 (75 FR

48860) effective October 12, 2010

 20.2.2 NMAC approved on September 26, 1997 (62

FR 50518) effective November 25, 1997

 20.2.3 NMAC approved on July 15, 2011 (76 FR

41698) effective August 15, 2011

 20.2.5 NMAC approved on September 26, 1997 (62

FR 50518) effective November 25, 1997

 20.2.7 NMAC approved on September 14, 2009 (74

FR 46910) effective November 13, 2009

 20.2.8 NMAC approved on September 26, 1997 (62

FR 50518) effective November 25, 1997

 20.2.60 NMAC approved on September 26, 1997

(62 FR 50518) effective November 25, 1997

 20.2.61 NMAC approved on September 26, 1997

(62 FR 50518) effective November 25, 1997

 20.2.72 NMAC approved on September 26, 1997

(62 FR 50518) effective November 25, 1997

 20.2.73 NMAC approved on August 12, 2010 (75

FR 48860) effective October 12, 2010

# 38  20.2.79 NMAC (Permits - Nonattainment Areas)

 20.2.80 NMAC (Stack Heights)

 20.2.82 NMAC (Maximum Achievable Control

Technology Standards for Source Categories of

Hazardous Air Pollutants)  20.2.74 NMAC approved on July 30, 2011 (76 FR

43149) effective August 19, 2011

 20.2.75 NMAC approved on September 26, 1997

(62 FR 50518) effective November 25, 1997;

proposed approval of repeal and replacement of

current SIP approved rules and subsequent revisions

contained in April 11, 2002 and April 25, 2005, SIP

submittals, respectively.

 20.2.79 NMAC approved on September 5, 2007 (72

FR 50879) effective October 5, 2007

 20.2.80 NMAC approved on September 26, 1997

(62 FR 50518) effective November 25, 1997

Parts 70, 71, 77, 78, and 82 are not SIP-approved since

these Parts reference the following programs, which are

beyond the scope of the New Mexico SIP:

 Operating Permits

 Operating Permit Emission Fees

 New Source Performance Standards

 Emission Standards for Ha zardous Air Pollutants

 Maximum Achievable Control Technology

Standards for Source Categories of Hazardous Air

Pollutants

References to these non-SIP approved Parts is used to

define what provisions of the New Mexico rules are not

considered to be “applicable regulations” as defined in

Part 75, which is necessary for calculating points for use

in the complexity based permit fees schedule. Therefore,

the references to Parts 70, 71, 77, 78, and 82 are approved

into the SIP, but the provis ions contained within those

Parts remain out of the New Mexico SIP.

20.2.75.7(C) NMAC references 20.2.72.202 NMAC,

which contains source exemptions. The current SIP-approved Part 72 does not include the

source exceptions in Sectio n 202 as referenced in

20.2.75.7(C). Revisions to Pa rt 72, including the addition

of source exemptions in S ection 202 have been submitted

by New Mexico for incorporation into the SIP.

Reference to these non-SIP approved provisions is used to

identify specific sources that do not meet the definition of

fee unit, which is necessary for calculating points for use

in the complexity based permit fees schedule. Therefore,

the reference to source exemptions is approved into the

SIP, but the provisions contained within those provisions

remain out of the New Mexico SIP and New Mexico’s

submittal to incorporate th ese provisions will be

addressed by EPA as part of a separate rulemaking.

20.2.75.7(E) NMAC references administrative revisions

as used in 20.2.72 NMAC. The current SIP-approved Part 72 does not include the

administrative revisions pr ovisions as referenced in

20.2.75.7(E). Revisions to Pa rt 72, including the addition

of provisions related to administrative revisions have been

submitted by New Mexico for incorporation into the SIP.

Reference to these non-SIP approved provisions is used to

identify changes that do not meet the definition of

“revisions” for the purposes of Part 75 – Construction

Permit Fees. Therefore, the reference to administrative

revisions is approved into the SIP, but the provisions

contained within those provisions remain out of the New

Mexico SIP and New Mexico’s submittal to incorporate

these provisions will be addressed by EPA as part of a

separate rulemaking.

20.2.75.7(F) NMAC references 20.2.70 NMAC as part of

the definition for “small business”. 20.2.70 NMAC was previous ly inadvertently approved

into the SIP by EPA. These provisions were specifically

removed from the New Mexico SIP on July 15, 2011 (76

# 39FR 41698) effective August 15, 2011. The references to

this non-SIP approved Part in 20.2.75.7(F) specifies a

specific exclusion of sources to meet the definition of

“small business”. Therefore, the reference to Part 70 is

approved into the SIP, but th e provisions contained within

those Parts remain out of the New Mexico SIP.

20.2.75.10(B) NMAC referen ces the Accelerated Review

permit processing program contained in 20.2.72.221

NMAC. The Accelerated Review filing fee provisions contained in

20.2.75.10(B) and the references to references the

Accelerated Review permit processing program contained

in 20.2.72.221 NMAC are beyond the scope of the SIP

and have been withdrawn by New Mexico and are no

longer in front of EPA for action.

20.2.75.11(A) NMAC references the following provisions

contained in the complexity point-based fee schedule:

 20.2.79 NMAC

 20.3.72.400 NMAC - 20.2.72.499 NMAC

 20.2.X NMAC

 20.2.83 NMAC

 20.2.72.220 NMAC

 20.2.72.300 NMAC - 20.2.72.399 NMAC The referenced provisions are specific elements that

require review in the constr uction permitting process as

defined in Part 75. The following referenced provisions

are SIP approved:

 20.2.79 NMAC was approve d by EPA September 5,

2007 (72 FR 50879) effective October 5, 2007

 20.2.72.300 NMAC - 20.2.72.399 NMAC was

approved by EPA September 5, 2007 (72 FR

50879) effective October 5, 2007

Part 72, Sections 400 - 499 are not SIP-approved since

these provisions referenc e the Air Toxics Review

Program, which are beyond the scope of the New Mexico

SIP.

20.2.X NMAC serves to incl ude all provisions under 20.2

with the exception of those ex cluded in the definition of

“applicable regulation” as specific elements that require

review in the construction pe rmitting process. 20.2.X

NMAC includes some Parts that are not SIP-approved

because they reference provisions that are beyond the

scope of the New Mexico SIP.

20.2.83 NMAC is currently Reserved and does not

include specific provisions.

The current SIP-approved Part 72 does not include

Section 220. Revisions to Pa rt 72, including the addition

of Section 220 have been s ubmitted by New Mexico for

incorporation into the SIP. New Mexico’s submittal to

incorporate these provisions will be addressed by EPA as

part of a separate rulemaking.

References to these non-SIP approved provisions are used

to identify specific elements that require review in the

construction permitting process, which is necessary for

calculating points for use in the complexity based permit

fees schedule. Therefore, the references to are approved

into the SIP, but the provis ions contained within those

provisions remain out of the New Mexico SIP.

20.2.75.11(D) NMAC referen ces the Accelerated Review

permit processing program contained in 20.2.72.221

NMAC. The Accelerated Review filing fee provisions contained in

20.2.75.1(D) and the references to references the

Accelerated Review permit processing program contained

in 20.2.72.221 NMAC are beyond the scope of the SIP

and have been withdrawn by New Mexico and are no

longer in front of EPA for action.

20.2.75.11(E) NMAC references 20.2.72 NMAC and

20.2.71 NMAC. 20.2.72 NMAC was approved by EPA on September 26,

1997 (62 FR 50518) effective November 25, 1997.

20.2.71 NMAC was previous ly inadvertently approved

into the SIP by EPA. These provisions were specifically

removed from the New Mexico SIP on July 15, 2011 (76

FR 41698) effective August 15, 2011. The references to

this non-SIP approved Part 71 in 20.2.75.11(E) provides

clarification that the annual fee required by Part 75 will

not apply to sources that ar e assessed annual fees under

# 40 the Part 71 Operating Permit Emissions Fees. Therefore,

the reference to Part 71 is approved into the SIP, but the

provisions contained within t hose Parts remain out of the

New Mexico SIP.

20.2.75.12(B) NMAC references determinations of

administratively complete ness based on application

content requirements contained in 20.2.72.203 NMAC. 20.2.72 NMAC, including 20.2.72.203 provisions, was

approved by EPA on September 26, 1997 (62 FR 50518)

effective November 25, 1997.

# 41 III.D. Evaluation with respect to section 110(l) of the Clean Air Act

This section 110(l) analysis will be conducted considering the Part 75 – Construction

Permit Fees rules submitted in the two SIP submittals as one component of the New

Mexico NSR permitting program. Specifically, these rules establish a revised fee

schedule and associated fee i nvoicing and payment procedures for fees associated with

construction permits.

Section 110(l) of the Clean Air Act states:

Each revision to an implementation plan s ubmitted by a State under this Act shall

be adopted by such State after re asonable notice and public hearing. The

Administrator shall not approve a revi sion of a plan if the revision would

interfere with any applicable requirem ent concerning attainment and reasonable

further progress (as defined in section 171), or any other applicable requirement

of this Act.

Thus, under section 110(l), the SIP revisions under review must not interfere with

attainment or reasonable furthe r progress or any other applicab le requirement of the Act.

The permitting fee assessment provisions under re view in this TSD w ill not interfere with

attainment or reasonable furthe r progress or any other applicab le requirement of the Act.

The provisions of 20.2.75 NMAC establishes a fe e schedule and procedures for collecting

fees associated with construc tion permits. The fees collected under Part 75 are used to

cover the costs of NMED’s new source review permitting program. The assessment and

collection of fees will not influence the New Mexico’s permitting decisions. The

construction permit fees requirements will not violate 110(l).

# 42 IV. Conclusion

The technical analysis provided in the preced ing sections has compared the applicable

sections of the CAA and 40 CFR Part 51 to New Mexico’s April 11, 2002, submission of

the 20.2.75 NMAC repeal and replacement rule establishing construction permit fees and

the April 25, 2005, submission of revisions to sections 20.2.75.5, 20.2.75.7, 20.2.75.10,

and 20.2.75.11 NMAC.

The analysis found that the adoptions of the repeal and replacement of 20.2.75 NMAC

submitted on April 11, 2002, is consistent with the CAA and 40 CFR Part 51. EPA also

finds that the adoption of the re visions to sections 20.2.75.5, 20.2.75.7, 20.2.75.10, and

20.2.75.11 NMAC submitted on April 25, 2005, is c onsistent with the CAA and 40 CFR

Part 51.

Because our review of 20.2.75 NMAC as re vised in the April 11, 2002 and April 25,

2005 SIP submittals finds that the construction permit fees program is an established

permit fees program that New Mexico deve loped with input from members of the

regulated community and public interest groups via a public participation process that

was initiated simultaneous to initial rule re view and development, we have determined

that this action should be considered noncontr oversial. It is recommended that direct

final approval of thes e revisions be published.