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 accelerated review 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 2 8 f\i 1 9: 3 4 

Amendment [!] Renumber D Repeal D Emergency D 

_______ R,eference I Internet site 

Please list attachments 

and Internet site(s} if 

applicable 

''.-.··-;; ·,. 

YesD 

1. 

2 

3. 

Public domain D 

Check if delegated -

authority D 
Agency: Environmental Improvement Board 

DF A Account: 667 

Contact Person: Steve Hattenbach 

Office of General 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 of the Air 

Quality Control Act, contained in NMSA 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. In the amendments to 20.2.72.7 

NMAC, new defmitions are inserted with subsection numbers 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 of permit application review that allows the 

Department to utilize a qualified outside firm to assist in review of a construction permit application. 

B. "Affiliate," for the purposes of accelerated review, means a person that directly or indirectly, 

through one or more intermediaries, controls or is under common control with another person. Control includes the 

possession of the power to direct or cause the direction of management and policies of a person, whether directly or 

indirectly through the ownership, control or holding with the power to vote ten percent or more of the person's 

voting securities. 

H. "Conflict of interest," for the purposes of accelerated 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 of the relevant facts to question the integrity or impartiality of the qualified 

outside firm in review of the application. A conflict of interest does not include any gifts, gratuities, financial or 

contractual relationship ofless than one hundred dollars ($100) in value for the twelve month period preceding 

Department receipt of the application. A conflict of interest 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 fum has provided goods or services to the applicant within one year prior to 

the start, or during the term, ofthe accelerated review process. 

(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 prior to the start of the accelerated review process. 

(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 of value to, or is owed anything of value by the 

applicant. 

(b) The qualified outside fum has 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 of the qualified outside firm, who will perform services under a 

contract pursuant to this section (20.2.72.221 NMAC), has one or more personal, business, or fmancial interests or 

relationships with the applicant or any director. officer or employee of the applicant which would cause a reasonable 

person with knowledge of the relevant facts to question the integrity or impartiality of those who are or will be 

acting under a contract. 

(6) A director, officer or employee of the qualified outside firm was a director, officer or employee of 

the applicant within one year prior to the start of the accelerated review process. 

(7) Except where allowed by the Department, communication has been made between the qualified 

outside firm and the applicant regarding the substance of the application before a qualified outside firm has been 

selected to perform accelerated review of an application. Direct communication between the qualified outside firm 

and the applicant may take place once the qualified outside fum has been selected by the Department. 

(8) Any affiliate of the applicant has any of the above identified relationships with the qualified 

outside fum. 

(9) Any affiliate of the qualified outside finn has any of the above identified relationships with the 

applicant. 

(1 0) Any affiliate of the applicant has any of the above identified relationships with any affiliate of 

the qualified outside firm. 

20.2.72 NMAC 
N. "Interested person," as used in the definition of conflict of interest, means anv person, other than 

the Department, that is reasonably expected to provide or has provided substantive comment or technical 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 of construction 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 of copies of the permit application 

specified in the applicable application form. The items of this section, if requested 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 of all owners or 

operators of the source, and the applicant's state of incorporation 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 of any 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 air pollutant is emitted in such 

a manner that a permit is required under the 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 of significant 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 of US 

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 of significant deterioration increment, and 

(2) if required 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 of the 

proposed construction, modification or installation of the source; 

(7) Include a process flow sheet, including a material balance, and a site diagram of all components 

and locations of emissions to the atmosphere of the facility which would be involved in routine operations and 

emissions; 

(8) Include a full description, including all calculations of controlled and uncontrolled emissions and 

the basis for all control efficiencies presented, of the equipment to be used for air pollution control, including a 

process flow sheet, or, if the Department so requires, layout and assembly drawings; 

(9) Include a description of the equipment or methods proposed by the applicant to be used for 

emission measurement; 

(10) State the maximum and standard operating schedules of the source after completion of 

construction, modification or installation or after permit revision in terms of which and how many hours per day, 

days per week, days per month and days per year; 

{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 of his or her knowledge, the truth of all information in the application and 

addenda, if any; 

(13) Contain payment of any 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 proof of applicant's public notice, if applicable, as specified in Subsection 

B of20.2.72.203 NMAC; and 

(15) At the sole discretion ofthe applicant. contain a request for accelerated review of the 

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 if considering 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 of any applicable 

New Source Performance Standard or National Emission Standard for Hazardous Air Pollutants or a regulation of 

the board; 

C. For toxic air pollutants, see 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 of any National Ambient Air Quality Standard or New Mexico Ambient Air Quality Standard unless 

the ambient air impact is offset by meeting the requirements of either 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 of a Prevention of Significant Deterioration (PSD) increment; 

F. Any provision of the Air Quality Control Act will be violated; [ef] 

G. It appears that the construction of the new source will not be completed within a reasonable time; 

H. The Department chooses to deny the application due to a conflict of interest 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 of construction 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 of permit 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 of construction permit applications under this section. 

B. Requests for Accelerated Review: 

(1) At the sole discretion of the applicant. a construction permit applicant under this Part may request 

accelerated permit review of the application by a qualified outside firm. Applications for accelerated review shall be 

preceded by 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 of Subsection A of20.2.72.221 NMAC. If there 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 of the accelerated review filing fee as 

specified in 20.2.75 NMAC. The Department shall notify the applicant of the names and addresses of the qualified 

outside firms. The applicant shall deliver a copv of the application. by mail or hand delivery, to each qualified 

outside firm identified by the Department, unless the applicant is aware of a conflict of interest. 

(3) Participation in the accelerated permit review process shall not relieve the applicant of any 

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 of interest; 

(b) A statement of qualifications for that specific application; 

{c) An estimate of the cost and schedule for the review; and 

(d) A notarized affidavit attesting that no conflict of interest exists on the specific permit 

application. 

(6) If no qualified outside firm submits the four items required by Paragraph 5 of Subsection 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 of a 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 

of the qualified submittals showing the costs to the applicant of the 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 of receipt of the Department's bid summary the applicant 

shall either: (i) submit to the Department a written recommendation to accept one of the accelerated review bids, or 

a prioritized list of more than one of the accelerated review bids, including a brief justification for the 

recommendation(s) along with a corporate check or money order payable to the Department for the amount of the 

accelerated review bid and a notarized affidavit attesting that no conflict of interest exists on the specific permit 

application; or (ii) submit to the Department a written withdrawal of the request for accelerated review. 

(b) The request for accelerated review is deemed withdrawn if the applicant fails to submit a 

written recommendation or withdrawal within five (5) working days of receipt of the Department's bid summary 

unless the Department has granted an extension. 

(10) Department's Selection of Qualified 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 of a qualified outside firm and in accordance with 20.2. 72.207 NMAC. 

(b) If the applicant recommends a qualified submittal, the Department shall determine whether 

to accept the recommended submittal. If the Department accepts the recommended submittal it shall instruct the 

qualified outside firm to begin review of the application. If the 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 of Conflicts During Accelerated Review: 

(1) The applicant and the qualified outside firm have a continuing obligation to investigate potential 

conflicts of interest and to immediately disclose, in writing, any conflict of interest to the Department. If a conflict 

of interest was not disclosed pursuant to Subparagraph d ofParag;raph 5 of20.2.72.221 NMAC or Subparagraph a of 

Paragraph 9 of Subsection 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 of the conflict. 

(2) In choosing between these options the Department shall consider whether the conflict of interest 

was disclosed or discovered, the timing of the disclosure or discovery, diligence in investigating potential conflicts 

of interest. any indication of intentional or willful failure to disclose, significance of the conflict of interest. and 

abilitv to eliminate the conflict of interest in a timely manner. 

D. Issuance of a 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 4 
Public Records Act, Chapter 14, Article 2 NMSA 1978, and the Confidential Information Section of the 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