# IMPORTANT NOTE: This Regulatory change was provided for informational purposes only‐‐ it

was not submitted for approval into the New Mexico SIP.

New Mexico State Amendments to Part 72 (20.2.72 NMAC), Construction Permits, submitted to EPA April 11, 2002. Element 6: Amendments to Part 72, Construction Permits, State effective March 30,
2001.‐‐ This documents contains only the amendments to Part 72 effective March 30,
2001. The entire submittal is available in document EPA

‐R06

‐OAR

‐2005

‐NM

‐0006

‐0019 in this docket.

## April 11, 2002 New Mexico State SIP Submittal:

Element 6. Regulatory change to 20.2.72 NMAC - Construction Permits, related to provisions allowing for the acceleratedreview of construction permits by use of outside contractors, filed with the New Mexico State Records Center on February 28, 2001 effective March 30, 2001, following hearings held by the New Mexico Environmental Improvement Board (NMEIB) on January 12, 2001 and February 9, 2001. NOTE: This regulatory change was provided for informational purposes only; this regulatory change was not submitted for approval under the SIP.New 

# D

No X 

### Yes

Name:

Title:

SRC-2000-02 5/26/2000 

## FILED WITH ST:\TE RC:C:ORDS CENTER



## NMAC TRANSMITTAL FORM 200 I FEB 

## 28 f\i 

## 19: 34

Amendment 

# [!] Renumber 

# D Repeal 

# D Emergency 

# D

_______ R,eference 

### I Internet site Please listattachments andInternetsite(s} if applicable

''.-.··-;; ·,.



### YesD 1.

2
3.

Public domain

# D

Checkif delegated

- authority 

# D

### Agency: Environmental Improvement Board

DFA Account: 667

Contact Person: Steve Hattenbach Office ofGeneral Counsel New Mexico Environment Department P.O. Box 26110 Santa Fe, NM 87502 phone: 827-2824

Part Name: Construction Permits

Part Number: 20.2.72 NMAC

Filename: for_NMregister.doc

Wordprocessing format: Word97

### FILED \'!ITH STATE**R~C0~DS** 

### C!:}lTER


## 2001FEB28**~·:** O· 

## 35 II ..J' Explanatory Note: This amendment will implement the accelerated review rulemaking requirements ofthe Air Quality Control Act, contained inNMSA 1978, Section 74-2-7(B)(8)(1999). This is an amendment to 20.2.72.7 NMAC, 20.2.72.203 NMAC, 20.2.72.208 NMAC and 20.2.72.221 NMAC. Inthe amendments to 20.2.72.7 NMAC, new defmitions are inserted with subsectionnumbers as indicated; other defmitions are unchanged, but subsection numbering is changed to maintain alphabetical order. In the amendments to 20.2.72.203 NMAC, subsection A is the only subsection which is changed. Amended 20.2.72.208 NMAC is here printed in its entirety. Amended 20.2.72.221 NMAC is entirely new material. ·

20.2.72.7 Part: DEFINITIONS: In addition to the terms defmed in 20.2.2 NMAC (Defmitions) as used in this

A. "Accelerated review" means an optional process ofpermit application review that allows the Department to utilize a qualified outside firm to assist in review ofa construction permit application. B. "Affiliate," for the purposes ofaccelerated review, means a personthat directly or indirectly, through one or more intermediaries, controls or is under common control with another person. Control includes the possession ofthe power to direct or cause the direction ofmanagement and policies ofa person, whether directly or indirectly throughthe ownership, control or holding with the powerto vote ten percent ormore ofthe person's voting securities.

H. "Conflict ofinterest," for the purposes ofaccelerated review, means any direct or indirect relationship between the qualified outside firm and the applicant or other interested person that would cause a reasonable person with knowledge ofthe relevant facts to question the integrity or impartiality ofthe qualified outside firm in review ofthe application. A conflict ofinterest does not include any gifts, gratuities, financial or contractual relationship ofless than one hundred dollars ($100) in value for the twelve month period preceding Departmentreceipt ofthe application. A conflict ofinterest includes but is not limited to the following examples: (1) Gifts or gratuities ofva1ue have been exchanged between the qualified outside firm and the applicant. (2) The qualified outside fumhas provided goods or services to the applicant within one year prior to the start, or during the term, ofthe accelerated reviewprocess. (3) An express or implied contractual relationship exists between the qualified outside firm and the applicant and the qualified outside firm has provided goods or services to the applicant through that relationship within five years priorto the start ofthe accelerated reviewprocess. (4) There is a current fmancial relationship between the qualified outside firm and the applicant. Current fmancial relationships include. but are not limited to: (a) The qualified outside firm owes anything ofvalue to, or is owed anything ofvalue by the applicant. (b) The qualified outside fumhas provided goods or services to the applicant and has issued a warranty or guarantee for the work that is still in effect during the time the contracted work for accelerated review is being performed. (5) A director, officer, or employee ofthe qualified outside firm, who will perform services under a contractpursuantto this section (20.2.72.221 NMAC), has one ormorepersonal, business, or fmancial interests or relationships with the applicant or any director. officer or employee ofthe applicant which would cause a reasonable person with knowledge ofthe relevant facts to question the integrity or impartiality ofthose who are or will be acting under a contract. (6) A director, officer or employee ofthe qualified outside firm was a director, officer or employee of the applicant within one year prior to the start ofthe accelerated reviewprocess. (7) Except where allowed bythe Department, communication has beenmade betweenthe qualified outside firm and the applicant regarding the substance ofthe application before a qualified outside firmhas been selected to perform accelerated review ofan application. Direct communicationbetween the qualified outside firm and the applicantmay take place once the qualified outside fumhas been selectedby the Department. (8) Any affiliate ofthe applicant has any ofthe above identified relationships with the qualified outside fum.(9) Any affiliate ofthe qualified outside finnhas any ofthe above identified relationships with the applicant. (10) Any affiliate ofthe applicant has any ofthe above identified relationships with any affiliate of the qualified outside firm.

20.2.72 NMACN. "Interested person," as used in the definition ofconflict ofinterest, means anv person, other than the Department, that is reasonably expected to provide orhas provided substantive comment ortechnical evidence

on the permit application.

Z. "Qualified outside firm" means any person who has entered into a contract with the Department
to provide assistance in the accelerated review ofconstruction permit applications.

[11-30-95; 20.2.72.7 NMAC- Rn, 20 NMAC 2.72.107 2-2-01; A, 03-30-01]



### 20.2.72.203 CONTENTS OF APPLICATIONS: A. Any person seeking a permit under Subsection A of20.2.72.200 NMAC shall do so by filing a written application with the Department. The applicant shall submit the number ofcopies ofthe permit application specified in the applicable application form. The items ofthis section, ifrequested on the applicable application form, are required before the Department may deem an application administratively complete. The items may be modified by the Department, as appropriate, for emergency permits processed under 20.2.72.215 NMAC. All applications shall, as required by the Department: (1) Be filled out on the form(s) furnished by the Department; 

### (2) State the applicant's name and address, together with the names and addresses ofall owners or operators ofthe source, and the applicant's state ofincorporation or principal registration to do business; (3) Provide all information, including all calculations and computations, to describe the specific chemical and physical nature and to estimate the maximum quantities ofany regulated air contaminants the source will emit through routine operations after construction, modification or installation is completed, and estimate maximum potential emissions during malfunction, startup, shutdown. With respect to a toxic air pollutant as defmed by Subsection H of20.2.72.401 NMAC this requirement only applies when the toxic airpollutant is emitted in such

a manner that a permit is required underthe provisions of20.2.72.400 NMAC- 20.2.72.499 NMAC; (4) Contain a regulatory compliance discussion demonstrating compliance with each applicable air quality regulation, ambient air quality standard, prevention ofsignificant deterioration increment, and provision of 20.2.72.400 NMAC- 20.2.72.499 NMAC. The discussion must include an analysis, which may require use ofUS EPA-approved air dispersion model(s), to (1) demonstrate that emissions from routine operations will not violate any New Mexico or National Ambient Air Quality Standard or prevention ofsignificant deterioration increment, and (2) ifrequired by 20.2.72.400 NMAC- 20.2.72.499 NMAC, estimate ambient concentrations oftoxic air pollutants. (5) Provide a preliminary operational plan defining the measures to be taken to mitigate source emissions during malfunction, startup or shutdown; (6) Include a topographical map, at least as detailed as the 7.5 minute Topographic Quadrangle map published by the United States Geological Survey, showing the exact location and geographical coordinates ofthe proposed construction, modification or installation ofthe source; (7) Include a process flow sheet, including a material balance, and a site diagram ofall components and locations ofemissions to the atmosphere ofthe facility which would be involved in routine operations and emissions; (8) Include a full description, including all calculations ofcontrolled and uncontrolled emissions and the basis for all control efficiencies presented, ofthe equipment to be used for air pollution control, including a process flow sheet, or, ifthe Department so requires, layout and assembly drawings; (9) Include a description ofthe equipment ormethods proposed by the applicant to be used for emission measurement; (10) State the maximum and standard operating schedules ofthe source after completion of construction, modification or installation or after permit revision in terms ofwhich and how many hours per day, days per week, days per month and days per year; {11) Contain such other specifically identified relevant information as the Department may reasonably require; (12) Be notarized and signed under oath or affirmation by the operator, the owner or an authorized representative, certifying, to the best ofhis or her knowledge, the truth ofall information in the application and addenda, ifany; (13) Contain payment ofany fees which are specified in 20.2.75 NMAC (Construction Permit Fees)

as payable at the time the application is submitted; 

### [af!El]

20.2.72 NMAC 2(14) Contain documentary proofofapplicant's public notice, ifapplicable, as specified in Subsection B of20.2.72.203 NMAC; and (15) At the sole discretion ofthe applicant. contain a request for accelerated review ofthe application.

[ll-30-95; A, 1-7-98; A, 1-l-00; 20.2.72.203 NMAC- A, 03-30-01]

20.2.72.208 

### BASIS FOR DENIAL OF PERMIT: The Department shall deny any application for a permit or permit revision ifconsidering emissions after controls: A. It appears that the construction, modification or permit revision will not meet applicable regulations adopted pursuant to the Air Quality Control Act; B. The source will emit a hazardous air pollutant or an air contaminant in excess ofany applicable New Source Performance Standard or National Emission Standard for Hazardous Air Pollutants or a regulation of the board; 

### C. For toxic air pollutants, see 20.2.72.400 NMAC- 20.2.72.499 NMAC; D. The construction, modification, or permit revision will cause or contribute to air contaminant levels in excess ofany National Ambient Air Quality Standard or New Mexico Ambient Air Quality Standard unless the ambient air impact is offset by meeting the requirements ofeither 20.2.79 NMAC or 20.2.72.216 NMAC, whichever is applicable; E. The construction, modification, or permit revision would cause or contribute to ambient concentrations in excess ofa Prevention ofSignificant Deterioration (PSD) increment; F. Any provision ofthe Air Quality Control Act will be violated; 

### [ef] G. It appears that the construction ofthe new source will not be completed within a reasonable time;

H. The Department chooses to deny the application due to a conflict ofinterest in accelerated review

as provided for under Subsection C of20.2.72.22l NMAC. [ll-30-95; A, 1-1-00; 20.2.72.208 NMAC- A, 03-30-01]

20.2.72.221 

### ACCELERATED REVIEW: A. Qualified Outside Firms: (1) The Department shall request proposals from persons interested in providing assistance as a qualified outside firm in the accelerated review ofconstruction permit applications under this Part. (2) The Department shall evaluate the proposal submitted by the person. To be eligible to contract with the Department as a qualified outside firm a person must: (a) Be legally qualified to contract with the Department; and (b) Be qualified to assist the Department in review ofpermit applications, as determined by the Department in the Department's sole discretion. (3) Persons who are selected as qualified outside firms shall be under contract with the Department for accelerated review ofconstruction permit applications under this section. B. Requests for Accelerated Review: (1) At the sole discretion ofthe applicant. a construction permit applicant under this Part may request accelerated permit review ofthe application by a qualified outside firm. Applications for accelerated review shall be precededby a pre-application meeting between the applicant and the Department. Requests for accelerated review shall not be granted unless there is at least one qualified outside firm under contract with the Department pursuant to Paragraph 3 ofSubsection A of20.2.72.221 NMAC. Ifthere are no firms under contract to provide accelerated review, the Department shall review the application in accordance with 20.2.72.207 NMAC. (2) Such request for accelerated permit review shall be submitted with the construction permit application along with a cor:porate check or money order for the amount ofthe accelerated review filing fee as specified in 20.2.75 NMAC. The Department shall notify the applicant ofthe names and addresses ofthe qualified outside firms. The applicant shall deliver a copv ofthe application. by mail or hand delivery, to each qualified outside firm identified by the Department, unless the applicant is aware ofa conflict ofinterest. (3) Participation in the accelerated permit review process shall not relieve the applicant ofany responsibilities specified in this chapter. (4) Applicants who have opted for accelerated review under this section shall be subject to supplementary fees pursuant to 20.2.75 NMAC which shall be assessed in addition to all other applicable fees levied under 20.2.75 NMAC.

20.2.72 NMAC 3(5) Qualified outside firms under contract which are interested in performing the accelerated review

on a specific application shall submit to the Department: (a) A statement ofinterest; (b) A statement ofqualifications for that specific application; {c) An estimate ofthe cost and schedule for the review; and (d) A notarized affidavit attesting that no conflict ofinterest exists on the specific permit application. (6) Ifno qualified outside firm submits the four items required by Paragraph 5 ofSubsection B of 20.2.72.221 NMAC, the Department shall apply the accelerated review filing fee to the permit fee in accordance with 20.2.75 NMAC and review the application without the assistance ofa qualified outside firm and in accordance with 20.2.72.207 NMAC. (7) The Department shall review the submittals and determine. in the Department's sole discretion, which firms qualifY for any specific application. (8) Prior to determining any application administratively complete for which accelerated review has been requested as allowed under 20.2.72.203 NMAC, the Department shall provide the applicant a written summary ofthe qualified submittals showing the costs to the applicant ofthe accelerated review and the anticipated schedule for application review, permit development and permit issuance. (9) Applicant's Responsibilities for Response to Submittal Summary: (a) Within five (5) working days ofreceipt ofthe Department's bid summary the applicant shall either: (i) submit to the Department a written recommendation to accept one ofthe accelerated review bids, or

a prioritized list ofmore than one ofthe accelerated review bids, including a briefjustification for the recommendation(s) along with a corporate check or money order payable to the Department for the amount ofthe accelerated review bid and a notarized affidavit attesting that no conflict ofinterest exists on the specific permit application; or (ii) submit to the Department a written withdrawal ofthe request for accelerated review. (b) The request for accelerated review is deemed withdrawn ifthe applicant fails to submit a written recommendation or withdrawal within five (5) working days ofreceipt ofthe Department's bid summary unless the Department has granted an extension. (10) Department's Selection ofQualified Outside Firm (a) Ifthe request for accelerated review is withdrawn. the Department shall retain the accelerated review filing fee in accordance with 20.2.75 NMAC and shall review the application without the assistance ofa qualified outside firm and in accordance with 20.2.72.207 NMAC. (b) Ifthe applicant recommends a qualified submittal, the Department shall determine whether
to accept the recommended submittal. Ifthe Department accepts the recommended submittal it shall instruct the qualified outside firm to begin review ofthe application. Ifthe Department rejects the recommended submittal, it shall inform the applicant and allow the applicant to recommend an alternate submittal pursuant to Paragraph 9 of Subsection B of20.2.72.221 NMAC or. ifthere are no other qualified submittals. the Department shall retain the accelerated review filing fee in accordance with 20.2.75 NMAC and review the application without the assistance of

a qualified outside firm and in accordance with 20.2.72.207 NMAC. C. Disclosure ofConflicts During Accelerated Review: (1) The applicant and the qualified outside firm have a continuing obligation to investigate potential conflicts ofinterest and to immediately disclose, in writing, any conflict ofinterest to the Department. Ifa conflict ofinterest was not disclosed pursuant to Subparagraph d ofParag;raph 5 of20.2.72.221 NMAC orSubparagraph a of Paragraph 9 ofSubsection B of20.2.72.221 NMAC, and is later disclosed or discovered, the Department mav: (a) Deny the application pursuant to 20.2.72.208 NMAC; (b) Terminate accelerated review and review the application pursuant to 20.2.72.207 NMAC;

(c) Allow accelerated review to continue after elimination ofthe conflict. (2) In choosing between these options the Department shall consider whetherthe conflict ofinterest

was disclosed or discovered, the timing ofthe disclosure or discovery, diligence in investigating potential conflicts ofinterest. any indication ofintentional or willful failure to disclose, significance ofthe conflict ofinterest. and abilitv to eliminate the conflict ofinterest in a timely manner. D. Issuance ofa Permit After Accelerated Review: (1) Upon completion ofthe review, the qualified outside firm shall provide the Department with aT! documentation. including but not limited to all communications, notes. and drafts, pertaining to the permit application. At any time during the review, the qualified outside finn shall provide all documentation pertaining to a specific application to the Department upon request. Such documentation shall be subject to the Inspection of

20.2.72 NMAC 4Public Records Act, Chapter 14, Article 2 NMSA 1978, and the Confidential Information Section ofthe Air Quality Control Act, Section 74-2-11 NMSA 1978. (2) The Department shall review the analysis prepared by the qualified outside firm and shall issue a permit or deny the permit application in accordance with this Part. The qualified outside firm's analysis is not binding on the Department. The Department retains final authority to accept or reject the qualified outside firm's analysis regarding the permit application. (3) The Department shall not issue the permit until both the accelerated review processing fee and any fees due pursuant to 20.2.75 NMAC have been paid. [20.2.72.221 NMAC- N, 03-30-01]



### lnl-1 222

- 299. !RESERVED

### I

20.2.72 NMAC 

### 5