Bill Richardson 

Governor 

Mayor Richard Greene 

R(:gional Administrator 

State of New Mexico 

Office of the Governor 

November 2, 2006 

U.S. Environmental Protection Agency, Region 6 

1445 Ross A venue 

Dallas, Texas 75202-2733 

Dear Mayor Greene: 

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On behalf of the New Mexico Environment Department, I am pleased to submiffo the 

Environmental Protection Agency the enclosed revisions to the New Mexico State 

Implementation Plan (SIP). This revision includes amendments to New Mexico Administrative 

Code (NMAC) regulations 20.2.3 NMAC- Ambient Air Quality Standards; 20.2. 70 NMACOperating Permits; 20.2.72 l\TMAC- Construction Permits; and 20.2.99 NMAC --Conformity to 

the State Implementation Plan of Transportation Plans, Programs and Projects. The hearing 

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

exhibits, public notices, affidavits of publication, notices of intent to testify and public 

comments. 

Should you have any questions concerning this SIP submittal, please contact Richard 

Goodyear, Acting Air Quality Bureau Chief, at 505-827-1494. 

Sincerely, 

1;1(/ZJ-J.-

Bill Richardson 

Governor of New Mexico 

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Cc: David Neleigh, EPA Region 6 

Peggy Wade, EPA Region 6 

Tom Diggs, EPA Region 6 

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6MD ............. 6SF ................. . 

Ron Curry, NMED, Cabinet Secretary 

Richard Goodyear, NMED, Air Quality Bureau 

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t'A.z1L'6-f 

State Capitol • Room 400 • Santa Fe, New Mexico 87501 • 505-476-2200 • www.govemor.state.nm.us 
·. !-1 . : . t~.: : , I i 

~-.-

NMAC TRANSMITTAL FORM 

New [iJ Amendment D 

No X Yes Please list' attachments 

and IntBmet sitB(s) ff 

applicable 

Renumber D 

YesD 

Name: Gay Dillingham 

Title: 

SRC-2000-02 

5/26/2000 

Repeal D Emergency D 

9/6/06 

Public domain 0 

Check if delegated 

authority LJ 
This is an amendment to 20.2.3 NMAC, the addition of text in Section 9 effective on 9/6/06. 

20.2.3.9 LIMITATION OF APPLICABILITY TO 20.2.70 NMAC. The requirements of this part are 

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

applicability of this part to sources required to obtain a permit under 20.2.72 NMAC. nor does it limit which terms 

and conditions of permits issued pursuant to 20.2.72 NMAC are applicable requirements for permits issued pursuant 

to 20.2.70 NMAC. 

[20.2.3.9 NMAC- N, 9/6/06] 

(20.2.3.9] 20.2.3.10 to 20.2.3.107 [RESERVED] 

20.2.3 NMAC 
'1 i ·: .. T [[. 

NMACTRANSMITTALFORM 

1.24.10 NMAC [Sequence# 

1 

Environmental Improvement Board 

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

Tannis Fox 

New c:J Amendment W 

Effective Date 

Definitions 

Requirement for a Permit 

Permit Applications 

Permit Content 

Provision 

No X Yes Please list attachments 

and Internet site(s) if 

applicable 

Renumber CJ 

1. 

2 

3. 

YesD 

SRC-2000-02 

5/26/2000 

Repeal CJ Emergency c:J 

20.2.70.5 NMAC 

20.2.70.7 NMAC 

20.2.70.201 NMAC 

20.2.70.300 NMAC 

20.2.70.302 NMAC 

NMAC 

9/6/06 

Public domain 0 
This is an amendment to 20.2.70 NMAC, Sections 5, 7, 201,300,302 and 304 effective on 9/6/06. 

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

[11130/95; 20.2.70.5 NMAC- Rn, 20 NMAC 20.2.70.1.104, 06/14/02; A, 9/6/06] 

[The latest effective date of any section in this Part is 9/6/06.] 

20.2.70.7 DEFINITIONS: In addition to the terms defined in 20.2.2 NMAC (definitions), as used in this 

partH the following defmitions shall apply. 

A. "Acid rain source" has the meaning given to "affected source" in the regulations promulgated 

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

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

pueblos, that are within 50 miles of the source. 

C. "Air pollutant" means an air pollution agent or combination of such agents, including any 

physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct 

material) substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any 

precursors to the formation of any air pollutant, to the extent the administrator has identified such precursor or 

precursors for the particular purpose for which the term "air pollutant" is used. This excludes water vapor, nitrogen 

(N2), carbon dioxide (C02), oxygen (02), methane and ethane. 

D. "Air pollution control equipment" means any device, equipment, process or combination 

thereof, the operation of which would limit, capture, reduce, confine, or otherwise control regulated air pollutants or 

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

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

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

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

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

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

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

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

the relevant requirements of the federal act, including any revisions to that plan promulgated in 40 CFR, Part 52[~1 

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

promulgated through rulemaking under Title I, including Parts CorD, of the federal act, unless that term or 

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

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

lll(d)[tL 

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

requirement concerning accident prevention under Section 112(r)(7) of the federal act[tl 

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

regulations promulgated thereunder[tL 

(6) Any requirements established pursuant to Section 504(b) or Section 114(a)(3) of the federal act[tl 

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

federal act[tL 

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

of the federal act[tL 

(9) Any standard or other requirement for tank vessels under Section 183(f) of the federal act[~l 

(10) Any standard or other requirement of the regulations promulgated to protect stratospheric ozone 

under Title VI of the federal act, unless the administrator has determined that such requirements need not be 

contained in a Title V permit[tl 

(11) Any national ambient air quality standard[tL 

(12) Any increment or visibility requirement under Part C of Title I of the federal act, but only as it 

would apply to temporary sources permitted pursuant to Section 504(e) of the federal act[t-afld]~ 

(13) Any regulation adopted by the board pursuant to the New Mexico Air Quality Control Act, 

Section 74-2-5(B) NMSA 1978. 

F. "CFR" means the Code of Federal Regulations. 

G. "Draft permit" means a version of a permit which the department offers for public participation 

or affected program review. 

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

20.2.70 NMAC 
department, that limits the quantity, rate or concentration, or combination thereof, of emissions of regulated air 

pollutants on a continuous basis, including any requirements relating to the operation or maintenance of a source to 

assure continuous reduction. 

I. "Emissions allowable under the permit" means: 

(1) any state or federally enforceable permit term or condition that establishes an emission limit 

(including a work practice standard) requested by the applicant and approved by the department or determined at 

issuance or renewal to be required by an applicable requirement; or 

(2) any federally enforceable emissions cap that the permittee has assumed to avoid an applicable 

requirement to which the source would otherwise be subject. 

J. "Emissions unit" means any part or activity of a stationary source that emits or has the potential 

to emit any regulated air pollutant or any air pollutant listed pursuant to Section 112(b) of the federal act. This term 

is not meant to alter or affect the definition of the term "unit" for purposes of Title IV of the federal act. 

K. Federally enforceable" means all limitations and conditions which are enforceable by the 

administrator, including those requirements developed pursuant to 40 CFR Parts 60 and 61, requirements within the 

New Mexico state implementation plan, and any permit requirements established pursuant to 40 CFR 52.21 or under 

regulations approved pursuant to 40 CFR Part 51, Subpart I, including 40 CFR 51.165 and 40 CFR 51.166. 

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

all review requirements of20.2.70.400 NMAC- 20.2.70.499 NMAC. 

M. "Fugitive emissions" are those emissions which could not reasonably pass through a stack, 

chimney, vent, or other functionally-equivalent opening. 

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

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

pollutant pursuant to the federal act. 

P. "Insignificant activities" means those activities which have been listed by the department and 

approved by the administrator as insignificant on the basis of size, emissions or production rate. 

Q. "Major source" means any stationary source (or any group of stationary sources that are located 

on one or more contiguous or adjacent properties, and are under common control of the same person(s)) in which all 

of the pollutant emitting activities at such source belong to the same major group (i.e., all have the same two-digit 

code), as described in the standard industrial classification manual, 1987, and that is described in Paragraphs (1), (2) 

or (3) below. 

(1) A major source under Section 112 of the federal act, which is defined as the following.[7] 

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

located within a contiguous area and under common control that emits or has the potential to emit, in the aggregate, 

10 tons or more per year of any hazardous air pollutant which has been listed pursuant to Section 112 (b) of the 

federal act, 25 or more tons per year of any combination of such hazardous air pollutants (including any major 

source of fugitive emissions of any such pollutant, as determined by rule by the administrator), or such lesser 

quantity as the administrator may establish by rule. Notwithstanding the preceding sentence, hazardous emissions 

from any oil or gas exploration or production well (with its associated equipment) and hazardous emissions from 

any pipeline compressor or pump station shall not be aggregated with hazardous emissions from other similar units, 

whether or not such units are in a contiguous area or under common control, to determine whether such units or 

stations are major sources. 

(b) For radionuclides, "major source" shall have the meaning specified by the administrator by 

rule. 

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

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

determined by rule by the administrator). The fugitive emissions of a stationary source shall not be considered in 

determining whether it is a major stationary source for the purposes of this paragraph, unless the source belongs to 

one of the following categories of stationary sources: 

20.2.70 NMAC 

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

(b) kraft pulp mills; 

(c) portland cement plants; 

(d) primary zinc smelters; 

(e) iron and steel mills; 

(f) primary aluminum ore reduction plants; 

(g) primary copper smelters; 

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

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

(j) petroleum refineries; 

(k) lime plants; 

(1) phosphate rock processing plants; 

(m) coke oven batteries; 

(n) sulfur recovery plants; 

( o) carbon black plants (furnace process); 

(p) primary lead smelters; 

( q) fuel conversion plant; 

(r) sintering plants; 

(s) secondary metal production plants; 

(t) chemical process plants; 

(u) fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal 

units per hour heat input; 

barrels; 

(v) petroleum storage and transfer units with a total storage capacity exceeding 300,000 

(w) taconite ore processing plants; 

(x) glass fiber processing plants; 

(y) charcoal production plants; 

(z) fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour 

heat input; 

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

Section 111 or 112 of the federal act. 

(3) A major stationary source as defined in Part D of Title I of the federal act, including: 

(a) for ozone non-attainment areas, sources with the potential to emit 100 tons or more per year 

of volatile organic compounds or nitrogen oxides in areas classified as "marginal" or "moderate," 50 tons or more 

per year in areas classified as "serious," 25 tons or more per year in areas classified as "severe," and 10 tons or more 

per year in areas classified as "extreme"; except that the references in this paragraph to 100, 50, 25, and 10 tons per 

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

under Section 182(±)(1) or (2) of the federal act, that requirements under Section 182(±) of the federal act do not 

apply; 

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

with the potential to emit 50 tons or more per year of volatile organic compounds; 

(c) for carbon monoxide non-attainment areas (1) that are classified as "serious," and (2) in 

which stationary sources contribute significantly to carbon monoxide levels as determined under rules issued by the 

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

(d) for particulate matter (PM 1 0) non-attainment areas classified as "serious," sources with the 

potential to emit 7 0 tons or more per year of PM 1 0. 

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

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

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

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

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

Administrative Code, unless otherwise noted; as adopted or amended by the board. 

V. "Part 70 source" means any source subject to the permitting requirements of this part, as 

provided in 20.2. 70.200 NMAC - 20.2. 70.299 NMAC. 

W. "Permit modification" means a revision to an operating permit that meets the requirements of 

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

20.2.70.404 NMAC. 

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

identified in any permit application or modification. 

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

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

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

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

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

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

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

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

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

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

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

AA. "Proposed permit" means the version of a permit that the department proposes to issue and 

forwards to the administrator for review in compliance with 20.2.70.402 NMAC. 

AB. "Regulated air poUutant" means the following: 

(I) nitrogen oxides, total suspended particulate matter, or any volatile organic compounds; 

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

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

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

the federal act; or 

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

established under Section 112 of the federal act, including Sections 112(g), (j), and (r), including the following; 

(a) any pollutant subject to requirements under Section 112(j) of the federal act; if the 

administrator fails to promulgate a standard by the date established pursuant to Section 112( e) of the federal act, any 

pollutant for which a subject source would be a major shall be considered to be regulated on the date 18 months after 

the applicable date established pursuant to Section 112(e) of the federal act; and 

(b) any pollutant for which the requirements of Section 112(g)(2) of the federal act have been 

met, but only with respect to the individual source subject to a Section 112(g)(2) requirement. 

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

AD. "Responsible official" means one of the following. 

(I) For a corporation: a president, secretary, treasurer, or vice-president of the corporation in charge 

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

the corporation, or a du1y authorized representative of such person if the representative is responsible for the overall 

operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and 

either a) the facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 

million (in second quarter 1980 dollars), or b) the delegation of authority to such representative is approved in 

advance by the department. 

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

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

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

chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency 

(e.g., a regional administrator of US EPA). 

(4) For an acid rain source: the designated representative (as defined in Section 402(26) of the federal 

act) in so far as actions, standards, requirements, or prohibitions under Title IV of the federal act or the regulations 

promulgated thereunder are concerned, and for any other purposes under 40 CFR, Part 70. 

AE. "Section 502(b)(IO) changes" are changes that contravene an express permit term. Such changes 

do not include changes that would violate applicable requirements or contravene permit terms and conditions that 

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

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

equipment or process for any purpose. 

AG. "Solid waste incineration unit" means a distinct operating unit of any facility which combusts 

any solid waste material from commercial or industrial establishments or the general public (including single and 

multiple residences, hotels, and motels). The term "solid waste incineration unit" does not include: 

(I) incinerators or other units required to have a permit under Section 3005 of the federal Solid Waste 

Disposal Act; 

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

the primary purpose of recovering metals; 

(3) qualifying small power production facilities, as defmed in Section 3(17)(C) of the Federal Power 

Act (16 U.S. C. 796(17)(C)), or qualifying cogeneration facilities, as defined in Section 3(18)(B) of the Federal 

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

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

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

20.2.70 NMAC 4 
(such as heat) which are used for industrial, commercial, heating or cooling purposes; or 

(4) air curtain incinerators, provided that such incinerators only bum wood wastes, yard wastes and 

clean lumber and that such air curtain incinerators comply with opacity limitations established by the administrator 

by rule. 

AH. "Startup" means the setting into operation of any air pollution control equipment, process 

equipment or process for any purpose. 

AI. "Stationary source" or "source" means any building, structure, facility, or installation. or any 

combination thereof that emits or may emit any regulated air pollutant or any pollutant listed under Section 112(b) 

of the federal act. 

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

applicant or permittee. 

AK. "Temporary source" means any plant that is situated in one location for a period ofless than one 

year, after which it will be dismantled and removed from its current site or relocated to a new site. A temporary 

source may be semi-permanent, which means that is does not have to meet the requirements of a portable source. 

Temporary sources may include well head compressors which meet this criteria. 

AL. "Title I modification" means any modification under Sections 111 or 112 of the federal act and 

any physical change or change in method of operations that is subject to the preconstruction regulations promulgated 

under Parts C and D of the federal act. 

[11130/95; 20.2.70.7 NMAC- Rn, 20 NMAC 2.70.1.107, 06/14/02; A, 11/07/02; A, 9/6/06] 

20.2.70.201 REQUIREMENT FOR A PERMIT: 

A. A Part 70 source may operate after the time that it is required to submit a timely and complete 

application under this part only if: 

(1) the source is in compliance with an operating permit issued by the department or EPA; or 

(2) a timely permit (including permit renewal) application has been submitted consistent with 

20.2.70.300 NMAC; the ability to operate under these circumstances shall cease if the applicant fails to submit by 

the deadline specified in writing by the department any additional information identified as being needed to process 

the application. 

B. Revocation or termination of a permit by the department terminates the permittee's right to 

operate. 

C. The submittal of a complete operating permit application shall not protect any source from any 

applicable requirement, including any requirement that the source have a preconstruction permit under Title I of the 

federal act or state regulations. 

D, Requirement for permit under 20.2.72 NMAC. 

(1) Part 70 sources that have an operating permit and do not have a permit issued under 20.2. 72 

NMAC or 20.2. 74 NMAC shall submit a complete application for a permit under 20.2. 72 NMAC within 180 days of 

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

on a case-by-case basis. 

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

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

submittal of an application for an operating permit. 

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

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

method approved by the department and that have requested incomoration of conditions in their operating permit to 

ensure compliance with these standards. 

[11130/95; 20.2.70.201 NMAC- Rn, 20 NMAC 2.70.11.201, 06114/02; A, 9/6/06] 

20.2. 70.300 PERMIT APPLICATIONS: 

A. Duty to apply[7L For each Part 70 source, the owner or operator shall submit a timely and 

complete permit application in accordance with this part. 

B. Timely application. A timely application for a source applying for a permit under this part is: 

(1) for first time applications, one that is submitted within twelve (12) months after the source 

commences operation as a Part 70 source, or as established in the transition schedule outlined in Paragraph (4) of 

Subsection B of 20.2. 70.300 NMAC; 

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

of permit expiration(~]~ 

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

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

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

Deeember 19, 1995 is one that is stthmitted: 

(a) for sow=ees, e~<eept natm=al gas proeessing plants, vkieh have been issaed a permit, 

inelading a permit modifieation, pw=saant to 20.2.72 }J"MAC, 20.2.74 }l"MAC, or 20.?.79 NMAC on or after JaH:l:lary 

1, 1987, by february 2, 1995, exeept that persons O'.vning more than one sow=ee in this eategory may stthmit 

applieations for half of their soarees by february 2, 1995 and stthmit the remai:aing applieations by Mareh 19, 1995; 

(b) for sow=ees, exeept natw=al gas proeessing plants, vkieh ',vere issaed a permit, inelading a 

permit modifieation, parsaant to 20.2.72 }~it\C, 20.2.74 }~iAC, or 20.2.79 NMAC prior to Jatll:lary I, 1987, by 

fune 19, 1995; 

(e) foraY other soarees, ey Deeember 19, 1995.] 

C. Completeness of [A ].!!pplication[ ~ L 

(1) To be deemed complete, an application must provide all information required pursuant to 

Subsection D of20.2.70.300 NMAC, except that applications for permit modifications need supply such information 

only if it is related to the proposed change. 

(2) If, while processing an application, regardless of whether it has been determined or deemed to be 

complete, the department determines that additional information is necessary to evaluate or take fmal action on that 

application, it may request such information in writing and set a reasonable deadline for a response. 

(3) Any applicant who fails to submit any relevant facts or who has submitted incorrect information 

in a permit application or in a supplemental submittal shall, upon becoming aware of such failure or incorrect 

submittal, promptly submit such supplementary facts or corrected information. In addition, an applicant shall 

provide further information as necessary to address any requirements that become applicable to the source after the 

date it filed a complete application but prior to release of a draft permit. 

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

20.2.70.201 NMAC, shall be in effect from the date a timely application is submitted until the fmal permit is issued 

or disapproved, provided that the applicant adequately submits any requested additional information by the deadline 

specified by the department. 

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

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

more, as requested by the department. An applicant may not omit information needed to determine the applicability 

of, or to impose, any applicable requirement, or to evaluate the fee amount required under 20.2. 71 NMAC 

(operating permit emission fees). Fugitive emissions shall be included in the permit application in the same manner 

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

in the definition of major source. All applications shall[~] meet the following requirements. 

(1) Be made on forms furnished by the department, which for the acid rain portions of permit 

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

promulgated under Title IV of the federal act[;t 

(2) State the company's name and address (and, if different, plant name and address), together with 

the names and addresses of the owner(s), responsible official and the operator of the source, any subsidiaries or 

parent companies, the company's state of incorporation or principal registration to do business and corporate or 

partnership relationship to other permittees subject to this part, and the telephone numbers and names of the owners' 

agent(s) and the site contact(s) familiar with plant operations[;L 

(3) State the date of the application[~L 

(4) Include a description of the source's processes and products (by standard industrial classification 

code) including any associated with alternative scenarios identified by the applicant, and a map, such as the 7.5 

minute topographic quadrangle map published by the United States geological survey or the most detailed map 

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

UTM coordinates[~L 

(5) For all emissions of all air pollutants for which the source is major and all emissions of regulated 

air pollutants, provide all emissions information, calculations and computations for the source and for each 

emissions unit, except for insignificant activities (as defined in 20.2.70.7 NMAC). This shall include: 

(a) a process flow sheet of all components of the facility which would be involved in routine 

operations and emissions; 

(b) identification and description of all emissions points in sufficient detail to establish the 

basis for fees and applicability of requirements of the state and federal acts; 

20.2.70 NMAC 6 
(c) emissions rates in tons per year, pounds per hour and in such terms as are necessary to 

establish compliance consistent with the applicable standard reference test method; 

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

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

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

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

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

standards or limitations on source operation which affect emissions of regulated pollutants; 

(g) [Afl]ifreguested by the department, an operational plan defining the measures to be taken 

to mitigate source emissions during startups, shutdowns and emergencies; 

(h) other relevant information as the department may reasonably require or which are required 

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

Section 123 of the federal act); and 

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

required in Subparagraphs (a) through (h) above, as well as additional information determined to be necessary by the 

department to define such alternative operating scenarios[t]~ 

(6) Provide a list of insignificant activities (as defmed in 20.2. 70.7 NMAC) at the source, their 

emissions, to the extent required by the department, and any information necessary to determine applicable 

requirements[t]~ 

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

(a) sufficient information related to the emissions of regulated air pollutants to verify the 

requirements that are applicable to the source; and 

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

each applicable requirement[tt 

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

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

requirements of the state or federal acts or to determine the applicability of such requirements, including information 

necessary to collect any permit fees owed under 20.2.71 NMAC (operating permit emission fees)[tt 

[(10) For applieatioas which are req~:~ired under the trafl:sition scheffille in paragraph (4) ofsl:lbsection 

B of20.2.70.300 ~TMAC, include a dispersion modeling analysis, using US EPA approved models and procedures, 

shov;ing vffl:ether emissions from the source weuld cause air pollutant concentrations in eKcess of aft)' national 

ambient air q~:~ality standard. Air pollutants which are not emitted in significant (as defined in 40 CFR 

52.21 (l3)(23)(i)) amounts during routine operatiol:lS need not ee modeled. 

(a) This requirement shall not apply to the following: 

(i) A Part 70 source issued a permit under 20.2.72 NMAC, 20.2.74 NMA,C, 20.2.79 

NMAC after January 1, 198e; or 

(ii) A Part 70 source suBjectto 20.2.14 ~l'Mi'£, 20.2.19 ~l'MAC, 20.2.19 ~l'MAC, 20.2.31 

NMAC, 20.2.32 NMAC if no physical or operational modifications that have resulted in increased particulate 

matter, sulfur dioKide, or nitrogen oKide emissions have occWTed since the time modeling was performed for that 

facility as part of revisions to those regulations. 

(b) The Department may ·.vaive modeling vtith respect to ozone if the Department determines 

that emissions from the source are not likely to cause ozone concentrations in excess of the national ameient air 

quality standard.] 

[(1-B].(!Q} Provide certification of compliance, including[~] all of the following. 

(a) A certification, by a responsible official consistent with Subsection E of 20.2. 70.300 

NMAC, of the source's compliance status for each applicable requirement. For national ambient air guality 

standards. certifications shall be based on the following. 

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

with the application for a permit under 20.2.72 NMAC. 

(iil For permit renewal applications. this certification shall be based on compliance with 

the relevant terms and conditions of the current operating permit. 

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

monitoring, recordkeeping, and reporting requirements and test methods[tt 

(c) A statement that the source will continue to be in compliance with applicable requirements 

for which it is in compliance, and will, in a timely manner or at such schedule expressly required by the applicable 

requirement, meet additional applicable requirements that become effective during the permit term[tt 

20.2.70 NMAC 7 
(d) A schedule for submission of compliance certifications during the permit term, to be 

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

or by the department [t-aftEi]~ 

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

compliance certification requirements of the federal act. 

[{Yt]!!.ll For sources that are not in compliance with all applicable requirements at the time of 

permit application, provide a compliance plan that contains;. all of the following. 

(a) A description of the compliance status of the source with respect to all applicable 

requirements[~L 

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

for which it is not in compliance[tL 

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

milestones, leading to compliance with such applicable requirements. The schedule of compliance shall be at least 

as stringent as that contained in any consent decree or administrative order to which the source is subject, and the 

obligations of any consent decree or administrative order shall not be in any way diminished by the schedule of 

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

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

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

months[t-aftElL 

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

federal act, the compliance plan content requirements specified in this paragraph, except as specifically superseded 

by regulations promulgated under Title IV of the federal act with regard to the schedule and method(s) the source 

will use to achieve compliance with the acid rain emissions limitations. 

E. Certification[;. L Any document, including any application form, report, or compliance 

certification, submitted pursuant to this part shall contain certification by a responsible official of truth, accuracy, 

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

information and belief formed after reasonable inquiry, the statements and information in the document are true, 

accurate, and complete. 

[ll/30/95; A, ll/14/98; 20.2.70.300 NMAC- Rn, 20 NMAC 2.70.III.300, 06/14/02; A, 9/6/06] 

20.2.70.302 PERMIT CONTENT: 

A. Permit conditions[;.L 

(1) The department shall specify conditions upon a permit, including emission limitations and 

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

of permit issuance or as specified in the approved schedule of compliance. The permit shall: 

(a) for major sources, include all applicable requirements for all relevant emissions units in the 

major source; 

(b) for any non-major source subject to 20.2.70.200 NMAC- 20.2.70.299 NMAC, include all 

applicable requirements which apply to emissions units that cause the source to be subject to this part; 

(c) specify and reference the origin of and authority for each term or condition, and identify 

any difference in form as compared to the applicable requirement upon which the term or condition is based; 

(d) include a severability clause to ensure the continued validity of the various permit 

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

(e) include a provision to ensure that the permittee pays fees to the [D]gepartment consistent 

with the fee schedule in 20.2.71 NMAC (Operating Permit Emission Fees); and 

(f) for purposes of the permit shield, identify any requirement specifically identified in the 

permit application or significant permit modification that the department has determined is not applicable to the 

source, and state the basis for any such determination. 

(2) Each permit issued shall, additionally, include provisions stating [tffiw.] the following. 

(a) The permittee shall comply with all terms and conditions of the permit. Any permit 

noncompliance is grounds for enforcement action. In addition, noncompliance with federally enforceable permit 

conditions constitutes a violation of the federal act[tL 

(b) It shall not be a defense for a permittee in an enforcement action that it would have been 

necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the 

permit[t]~ 

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

20.2.70 NMAC 8 
cause in accordance with 20.2.70.405 NMAC[tL 

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

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

permit condition[-;-L 

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

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

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

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

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

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

approved by the department: 

(a) shall require that the permittee maintain a log at the permitted facility which documents, 

contemporaneously with any change from one operating scenario to another, the scenario under which the facility is 

operating; and 

(b) shall, for each such alternative scenario, meet all applicable requirements and the 

requirements of this part. 

(4) The department may impose conditions regulating emissions during startup and shutdown. 

(5) All permit terms and conditions which are required under the federal act or under any of its 

applicable requirements, including any provisions designed to limit a source's potential to emit, are enforceable by 

the administrator and citizens under the federal act. The permit shall specifically designate as not being federally 

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

federal act or under any of its applicable requirements. 

(6) The issuance of a permit, or the filing or approval of a compliance plan, does not relieve any 

person from civil or criminal liability for failure to comply with the provisions of the Air Quality Control Act, the 

federal act, federal regulations thereunder, any applicable regulations of the Board, and any other applicable law or 

regulation. 

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

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

regulated pollutants for which there are no applicable requirements, unless the source is major for that pollutant. 

(8) Fugitive emissions from a source shall be included in the operating permit in the same manner as 

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

the definition of major source. 

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

(a) state that, where an applicable requirement of the federal act is more stringent than an 

applicable requirement of regulations promulgated under Title IV of the federal act, both provisions shall be 

incorporated into the permit and shall be enforceable by the administrator[~]; and 

(b) contain a permit condition prohibiting emissions exceeding any allowances that the acid 

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

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

pursuant to the acid rain program, provided that such increases do not require a permit modification under any other 

applicable requirement; no limit shall be placed on the number of allowances held by the acid rain source; the 

permittee may not use allowances as a defense to noncompliance with any other applicable requirement; any such 

allowance shall be accounted for according to the procedures established in regulations promulgated under Title IV 

of the federal act. 

B. Permit duration[;.L The department shall issue operating permits for a fixed term of five (5) years. 

C. Monitoring[;.L 

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

methods, required to assure and verify compliance with the terms and conditions of the permit and applicable 

requirements, including any procedures and methods promulgated by the administrator. 

(2) Where the applicable requirement does not require periodic testing or instrumental or 

noninstrumental monitoring (which may consist of recordkeeping designed to serve as monitoring), the permit shall 

require periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of 

the source's compliance with the permit, as reported pursuant to Subsection E of 20.2. 70.302 NMAC. Such 

monitoring requirements shall assure use of terms, test methods, units, averaging periods, and other statistical 

conventions consistent with the applicable requirement. 

(3) The permit shall also contain specific requirements concerning the use, maintenance, and, when 

20.2.70 NMAC 9 
appropriate, installation of monitoring equipment or methods. 

D. Recordkeeping[ot 

(1) The permit shall require recordkeeping sufficient to assure and verify compliance with the terms 

and conditions of the permit, including recordkeeping of: 

(a) the date, place as defmed in the permit, and time of sampling or measurements; 

(b) the date(s) analyses were performed; 

(c) the company or entity that performed the analyses; 

(d) the analytical techniques or methods used; 

(e) the results of such analyses; and 

(f) the operating conditions existing at the time of sampling or measurement. 

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

five (5) years from the date of the monitoring sample, measurement, report, or application. Supporting information 

includes all calibration and maintenance records and all original strip-chart recordings for continuous monitoring 

instrumentation, and copies of all reports required by the permit. 

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

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

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

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

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

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

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

the date, time, duration and probable cause of such deviations, the quantity and pollutant type of excess emissions 

resulting from the deviation, and any corrective actions or preventive measures taken. Such reports shall include 

telephone, verbal or facsimile communication within twenty-four (24) hours of the start of the next business day and 

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

(3) Submittal of compliance certification reports at least every twelve ( 12) months (or more 

frequently if so specified by an applicable requirement) certifying the source's compliance status with [all permit] 

terms and conditions contained in the permit [and all applieable reqHiremeats relevant to the sol:ifee], including 

[those related to] emission limitations. standards. or work practices. The reports shall be due to the department 

within thirty (30) days of the end of the permittee's reporting period. Such compliance certifications shall be 

submitted to the administrator as well as to the department and shall include: 

(a) the identification of each term or condition of the permit that is the basis of the certification; 

(b) the compliance status of the source; 

(c) whether compliance was continuous or intermittent; 

(d) the method(s) used for determining the compliance status of the source, currently and 

during the reporting period identified in the permit; and 

(e) such other facts as the department may require to determine the compliance status of the 

source[;-aOOL 

( 4) Such additional provisions as may be specified by the administrator to determine the compliance 

status of the source. 

F. Portable and Temporary Sources[oL The department may issue permits for portable and temporary 

sources which allow such sources to relocate without undergoing a permit modification. Such permits shall not 

apply to acid rain sources and shall include conditions to assure that: 

(1) [+]!he source is installed at all locations in a manner conforming with the permit; 

(2) [+]!he source shall comply with all applicable requirements and all other provisions of this part at 

all authorized locations; 

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

advance of each change in location; 

( 4) notification shall include a legal description of where the source is to be relocated and how long it 

will be located there; and 

(5) emissions from the source shall not, at any location, result in or contribute to an exceedance of a 

national ambient air quality standard or increment or visibility requirement under Part C of Title I of the federal act; 

the department may require dispersion modeling to assure compliance at any location. 

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

with this part, permits shall also[o] include all the following. 

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

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

(a) enter upon the permittee's premises where a source is located or emission related activity is 

conducted, or where records must be kept under the conditions of the permit; 

(b) have access to and copy any records that must be kept under the conditions of the permit; 

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

equipment), practices, or operations regulated or required under the permit; and 

(d) sample or monitor any substances or parameters for the purpose of assuring compliance 

with the permit or applicable requirements or as otherwise authorized by the federal act. 

(2) Require that sources required under Paragraph (12) of Subsection D of20.2. 70.300 NMAC to 

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

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

schedule of compliance and requirements of Paragraph (12) of Subsection D of20.2.70.300 NMAC and shall 

contain: 

(a) dates for achieving the activities, milestones, or compliance required in the schedule of 

compliance, and dates when such activities, milestones or compliance were achieved; and 

(b) an explanation of why any dates in the schedule of compliance were not or will not be met, 

and any preventive or corrective measures adopted. 

(3) Include such other provisions as the department may require. 

H. Operational flexibility[.; L 

(1) Section 502(b)(l0) changes. 

(a) The permittee may make Section 502(b)(l0) changes, as defined in 20.2.70.7 NMAC, 

without applying for a permit modification, if those changes are not title I modifications and the changes do not 

cause the facility to exceed the emissions allowable under the permit (whether expressed as a rate of emissions or in 

terms of total emissions). 

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

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

brief description of the change within the permitted facility, the date on which the change will occur, any change in 

emissions, and any permit term or condition that is no longer applicable as a result of the change. 

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

permit. 

(d) If the written notification and the change qualify under this provision, the permittee is not 

required to comply with the permit terms and conditions it bas identified that restrict the change. If the change does 

not qualify under this provision, the original terms of the permit remain fully enforceable. 

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

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

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

purpose of complying with a federally enforceable emissions cap that is established in the permit in addition to any 

applicable requirements. Such terms and conditions shall include all terms and conditions required under 

20.2. 70.302 NMAC to determine compliance. If applicable requirements apply to the requested emissions trading, 

permit conditions shall be issued only to the extent that the applicable requirements provide for trading such 

increases and decreases without a case-by-case approval. 

(b) The applicant shall include in the application proposed replicable procedures and permit 

terms that ensure the emissions trades are quantifiable and enforceable. The department shall not include in the 

emissions trading provisions any emissions units for which emissions are not quantifiable or for which there are no 

replicable procedures to enforce the emissions trades. The permit shall require compliance with aJI applicable 

requirements. 

(c) For each such change, the permittee shaH provide written notification to the department and 

the administrator at least seven (7) days in advance of the proposed changes. Such notification shall state when the 

change will occur and shall describe the changes in emissions that will result and how these increases and decreases 

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

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

permit. 

I. Off-Permit Changes[.;]; 

(1) Permittees are aJlowed to make, without a permit modification, changes that are not addressed or 

prohibited by the operating permit, if: 

(a) each such change meets all applicable requirements and shall not violate any existing 

20.2.70 NMAC 11 
permit term or condition; 

(b) such changes are not subject to any requirements under Title IV of the federal act and are 

not Title I modifications; 

(c) such changes are not subject to permit modification procedures under 20.2.70.404 NMAC; 

and 

(d) the permittee provides contemporaneous written notice to the [l}]_Qepartment and US EPA 

of each such change, except for changes that qualify as insignificant activities. Such written notice shall describe 

each such change, including the date, any change in emissions, pollutants emitted and any applicable requirement 

that would apply as a result of the change. 

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

of a regulated air pollutant subject to an applicable requirement, but not otherwise regulated under the permit, and 

the emissions resulting from those changes. 

J. Permit Shield[~l 

(1) Except as provided in this part, the department shall expressly include in a Part 70 (20.2. 70 

NMAC) permit a provision stating that compliance with the conditions of the permit shall be deemed compliance 

with any applicable requirements as of the date of permit issuance, provided that: 

(a) such applicable requirements are included and are specifically identified in the permit; or 

(b) the department, in acting on the permit application or significant permit modification, 

determines in writing that other requirements specifically identified are not applicable to the source, and the permit 

includes the determination or a concise summary thereof 

(2) A Part 70 (20.2.70 NMAC) permit that does not expressly state that a permit shield exists for a 

specific provision shall be presumed not to provide such a shield for that provision. 

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

following: 

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

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

Section 74-2-10 NMSA 1978; 

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

prior to or at the time of permit issuance; 

(c) the applicable requirements of the acid rain program, consistent with Section 408( a) of the 

federal act; or 

(d) the ability of US EPA to obtain information from a source pursuant to Section 114 of the 

federal act, or the department to obtain information subject to the New Mexico Air Quality Control Act, Section 74-

2-13 NMSA 1978. 

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

expiration date of the permit pursuant to Subsection D of 20.2. 70.400 NMAC. 

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

decreases as part of emissions trading within a facility pursuant to Paragraph (2) of Subsection H of 20.2. 70.302 

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

Subsection A of 20 .2. 70.302 NMAC. 

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

20.2. 70.404 NMAC, to minor permit modifications under Subsection B of 20.2. 70.404 NMAC, to Section 

502(b )(I 0) changes under Paragraph (1) of Subsection H of 20.2. 70.302 NMAC, or to permit terms or conditions for 

which notice has been given to reopen or revoke all or part under 20.2.70.405 NMAC. 

[11130/95; A, 11/14/98; 20.2.70.302 NMAC- Rn, 20 NMAC 2.70.111.302, 06/14/02; A, 9/6/06] 

20.2.70.304 EMERGENCY PROVISION[t].:... This period is inconsistent with the manner in 

which all of the section names are identified - Vickie - Please explain. 

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

beyond the control of the permittee, including acts of God, which situation requires immediate corrective action to 

restore normal operation, and that causes the source to exceed a technology-based emission limitation under the 

permit due to unavoidable increases in emissions attributable to the emergency. An emergency shall not include 

noncompliance to the extent caused by improperly designed equipment, lack of preventive maintenance, or careless 

or improper operation. 

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

such technology-based emission limitations if the permittee has demonstrated through properly signed, 

20.2.70 NMAC 12 
contemporaneous operating logs, or other relevant evidence that: 

(1) An emergency occurred and that the permittee can identify the cause(s) of the emergency; 

(2) The permitted facility was at the time being properly operated; 

(3) During the period of the emergency the permittee took all reasonable steps to minimize levels of 

emissions that exceeded the emission standards or other requirements in the permit; and 

(4) The permittee fulfilled notification requirements under Paragraph (2) of Subsection E of 

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

and corrective actions taken. 

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

has the burden of proof. 

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

requirement[, exeept that Part 70 sourees shall not be subjeet to the provisions of20.2.7 N1\4AC (Exeess Emissions 

during Malfunetion, Startap, Shutdown, or Seheduled Maintenanee) for permit terms and eonditions issued under 

20.2.70 "NMAC]. 

[11/30/95; 20.2.70.304 NMAC- Rn, 20 NMAC 2.70.III.304, 06/14/02; A, 9/6/06] 

20.2.70 NMAC 13 
I';. 

I .. • 

; I .. 

NMAC TRANSMITTAL FORM 

New D Amendment [iJ 

No X Yes Please Jist attachments 

and Internet site(s) if 

applicable 

Name: Gay Dillingham 

Title: 

SRC-2000-02 

5/26/2000 

Renumber D 

8/1/06 

Repeal D Emergency D 

9/6/06 

Public domain 0 

Check iF delegated 

authority D 
· ... i ; 

''' 

- '' -. : ~ ' i '• •. , __ j 

. r I r ·: •• ,.., -'·-·...; ·~ ~--. ·, .. · · .... 1' [; c, 

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

20.2.72.216 

A. 

NONATTAINMENT AREA REQUIREMENTS: 

The requirements of this section apply to: 

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

contaminant such that the ambient impact of the contaminant would exceed the significant ambient concentration in 

20.2. 72.500 NMAC, table I, at any location that does not meet the New Mexico ambient air quality standard for the 

contaminant; [ ef] 

(2) a new source or modification of an existing source that [ wffieh] is not a major stationary source or 

major modification as defmed in 20.2. 79 NMAC and [ whieh] that will emit a regulated air contaminant such that the 

ambient impact of the contaminant would exceed the significant ambient concentration in table 1 at any location that 

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

(3) an existing source that does not propose an increase in emissions and that will emit a regulated air 

contaminant such that the ambient impact of the contaminant would exceed the significant ambient concentration in 

20.2.72.500 NMAC (table 1) at any location that does not meet the national or New Mexico ambient air guality 

standard for the contaminant. 

B. A new source or modification of an existing source subject to this section shall offset the ambient 

impact of its emissions by: 

(1) obtaining emission offsets for proposed emissions in an amount greater than one-to-one such that 

a net air quality benefit will occur; and 

(2) ensuring emission offsets are quantifiable, enforceable, and permanent by meeting the following 

sections of20.2.79 NMAC: 

(a) 20.2.79.114 NMAC (emission offset baseline); 

(b) 20.2.79.115 NMAC (emission offsets); and 

(c) 20.2.79.117 NMAC (air quality benefit). 

C. An existing source that is subject to this section shall demonstrate a net air quality benefit of at 

least a 20 percent reduction in ambient impact for each applicable contaminant. The 20 percent reduction shall be 

calculated as the projected source impact subtracted from the existing source impact divided by the existing source 

impact. The net air quality benefit must also meet the requirements of20.2.79.117 NMAC (air quality benefit). 

[11130/95; 20.2.72.216 NMAC- Rn, 20 NMAC 20.2.72.JI.216, 2/2/01; A, 9/6/06] 

20.2.72 NMAC 
/ ..... ;, i.,,. 

r;C 

~\i ~ 

STATE OF NEW MEXICO ~ 'l.~~S 

ENVIRONMENTAL IMPROVEMENT BOARD ~ ~~~~~!;~;~11,ett- $. c! -~~-

• ...lt<flt.\':1'- ~~ 

<"'~ /::: ~~ (~ 

IN THE MATTER OF THE PETITION 

FOR PUBLIC HEARING TO CONSIDER 

PROPOSED AMENDMENTS TO 

20.2.70 NMAC, AIR QUALITY RULES, 

OPERATING PERMITS 

ll[ c,'~ 

NO. EIB-05-12 (R) OL 6 8 '-:

9 -

NOTICE OF DOCKETING 

The above captioned case is hereby docketed pursuant to 201.1, §3, NMAC 

Environmental Improvement Board - Rulemaking Procedures. The Administrator 

received the Petition on July 22, 2005. 

/"'""~- ----.. _ 

Barb a Claire, Administrluor 

Environmental Improvement Board 

Post Office Box 26110 

Santa Fe, New Mexico 87502 

(505) 827-2425 p 

(505) 827-2836 F 

CERTIFICATE OF SERVICE 

I hereby certify that a copy of the forgoing NOTICE OF DOCKETING is: 1.) 

hand-delivered to Tracy Hughes, General Counsel, Office of General Counsel, New 

Mexico Environment Department, Runnels Building, N-4050, Santa Fe, NM; 2.) faxed 

and mailed first-class mail to Mary Smith, Board Counsel, NM Attorney General's 

Office, 111 Lomas NW, Albuquerque, New Mexico 87501 this 23rd day of August, 

2005. ~~CAA- ~--

Birbara Claire, Administrator 

Environmental Improvement Board 

Post Office Box 26110 

Santa Fe, New Mexico 87502 

(505) 827-2425 p 

(505) 827-2836 F 
BILL RICHARDSON 

Governor 

August 22, 2005 

State of New Mexico 

ENVIRONMENT DEPARTMENT 

Air Quality Bureau 

2048 Galisteo St. 

Santa Fe, NM 87505 

Phone (505) 827-1494 

Fax (505) 827-1543 

www.nmenv.state.nm. us 

Ms. Gay Dillingham, Chairperson 

New Mexico Environmental Improvement Board 

Harold Runnels Building, Rm N-2153 

1190 St. Francis Drive 

Santa Fe, New Mexico 87502 

RON CURRY 

Secretary 

DERRITH WATCHMAN-MOORE 

Deputy Secretary 

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

2, Part 70 of the New Mexico Administrative Code. 

Dear Ms. Dillingham: 

The Air Quality Bureau of the New Mexico Environment Department (NMED) respectfully 

requests a hearing before the Environmental Improvement Board on proposed amendments to 

one of the Air Quality rules, 20.2. 70 NMAC - Operating Permits. The Bureau requests that the 

Board consider this Petition at its regularly scheduled meeting on September 6, 2005 and set 

these proposed rule changes for hearing at its regularly scheduled Board Meeting in December 

2005. This will allow for 60 days notice to the public of the rule changes. 

The Air Quality Bureau proposes to amend the definition of "applicable requirement" in the 

operating permit rule by removing the New Mexico Ambient Air Quality Standards 

("NMAAQS "), and to clarify the procedure for affected sources to submit dispersion modeling 

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

light of recent settlements that will result in a significant decrease of emissions from some of the 

largest, oldest, and least controlled industrial facilities in New Mexico, and the availability of 

other approaches for reducing emissions at the few remaining sources for which NMAAQS 

compliance may still be an issue, the Bureau believes that the NMAAQS should not be 

applicable requirements under the operating permit rule. The Bureau also believes that it is 

appropriate to clarify the certification procedure to eliminate unnecessary and time-consuming 

disputes regarding NAAQS compliance. 

The Bureau respectfully requests that the Board, at its September 6, 2005 meeting, set these 

proposed rule amendments for hearing at the regularly scheduled Board Meeting in December 
Ms. Gay Dillingham 

August 22, 2005 

Page2 

2005. Enclosed is a copy of the proposed rule changes showing the rule provisions that the Air 

Quality Bureau intends to request that the Board adopt at the hearing. Some editing, formatting, 

and numbering changes may occur prior to the December 2005 EIB meeting and the Bureau will 

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

Thank you for your consideration of this request. 

Sincerely, • 

~Pv~ d1 .tltf!;~ ~ ' 

VI ~;;;~~~';~ ·. 

Mary Uhl, Acting Chief .. 

Air Quality Bureau , 

Enclosure 

cc: Jim Norton, Environmental Protection Division Director 

Gregory Green, Member, EIB 

Dolores Herrera, Member, EIB 

Ken Marsh, Member, EIB 

Soren Peters, Member, EIB 

Clifford Stroud, Member, EIB 

Harold Tso, Member, EIB 

Mary Smith, Counsel, EIB 
The Department proposes that the Board adopt the following revisions to 20.2. 70 NMAC -

Operating Permits. 

20.2.70.5 

section. 

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

20.2.70.7 DEFINITIONS: In addition to the terms defined in 20.2.2 NMAC (Definitions), 

as used in this Part the following definitions shall apply.[;] 

A. "Acid rain source" has the tneaning given to "affected source" in the regulations 

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

Federal Act. 

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

and Indian [+]tribes and [P]pueblos, that are within 50 miles of the source. 

C. "Air pollutant" means an air pollution agent or combination of such agents, 

including any physical, chemical, biological, radioactive (including source material, special 

nuclear material, and byproduct material) substance or matter which is emitted into or otherwise 

enters the ambient air. Such term includes any precursors to the formation of any air pollutant, 

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

purpose for which the term "air pollutant" is used. This excludes water vapor, nitrogen (N2), 

carbon dioxide (C02), oxygen (02), methane and ethane. 

D. "Air pollution control equipment" means any device, equipment, process or 

combination thereof, the operation of which would limit, capture, reduce, confme, or otherwise 

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

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

sulfur recovery units, acid plants, baghouses, precipitators, scrubbers, cyclones, water sprays, 

enclosures, catalytic converters, and steam or water injection. 

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

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

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

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

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

implementation plan approved by US EPA, or promulgated by US EPA through rulemaking, 

under title I of the Federal Act to implement the relevant requirements of the Federal Act, 

including any revisions to that plan promulgated in 40 CF~ Part 52[;],_ 

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

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

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

pertinent[;],_ 

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

including section 111(d)[;],_ 

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

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

Act[;L 

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

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

20.2.70 NMAC Proposed Revisions Page I ofl8 
(6) Any requirements established pursuant to section 504(b) or section 114(a)(3) 

of the Federal Act[;t_ 

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

section 129 of the Federal Act[;].:. 

(8) Any standard or other requirement for consumer and commercial products 

under section 183(e) ofthe Federal Act[;t_ 

(9) Any standard or other requirement for tank vessels under section 183(f) of the 

Federal Act[;].:. 

(10) Any standard or other requirement of the regulations promulgated to protect 

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

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

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

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

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

Federal Act[;-and].:. 

(13) Any regulation, except 20.2.3 NMAC, adopted by the Board pursuant to the 

New Mexico Air Quality Control Act, section 74-2-S(B) NMSA 1978. 

F. "CFR" means the Code of Federal Regulations. 

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

public participation or affected program review. 

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

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

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

to the operation or maintenance of a source to assure continuous reduction. 

I. "Emissions allowable under the permit" means: 

(1) any state or federally enforceable permit term or condition that establishes an 

emission limit (including a work practice standard) requested by the applicant and approved by 

the [9]gepartment or determined at issuance or renewal to be required by an applicable 

requirement; or 

(2) any federally enforceable emissions cap that the permittee has assumed to 

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

J. "Emissions unit" means any part or activity of a stationary source that emits or 

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

112(b) of the Federal Act. This term is not meant to alter or affect the definition of the term 

"unit" for purposes of title IV of the Federal Act. 

K. Federally enforceable" means all limitations and conditions which are 

enforceable by the Administrator, including those requirements developed pursuant to 40 CFR 

Parts 60 and 61, requirements within the New Mexico State Implementation Plan, and any permit 

requirements established pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 

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

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

[I)]gepartment that has met all review requirements of 20.2. 70.400 NMAC - 20.2. 70.499 

NMAC. 

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

through a stack, chimney, vent, or other functionally-equivalent opening. 

20.2.70 NMAC Proposed Revisions Page 2 of18 
N. "General permit" means an operating permit that meets the requirements of 

20.2. 70.303 NMAC. 

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

a hazardous air pollutant pursuant to the Federal Act. 

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

[Q]gepartment and approved by the Administrator as insignificant on the basis of size, emissions 

or production rate. 

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

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

of the same person(s)) in which all of the pollutant emitting activities at such source belong to 

the same Major Group (i.e., all have the same two-digit code), as described in the Standard 

Industrial Classification Manual, 1987, and that is described in paragraphs (1), (2) or (3) below. 

(1) A major source under section 112 ofthe Federal Act, which is defmed as the 

following. [ ~] 

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

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

the potential to emit, in the aggregate, 10 tons or more per year of any hazardous air pollutant 

which has been listed pursuant to section 112 (b) of the Federal Act, 25 or more tons per year of 

any combination of such hazardous air pollutants (including any major source of fugitive 

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

quantity as the Administrator may establish by rule. Notwithstanding the preceding sentence, 

hazardous emissions from any oil or gas exploration or production well (with its associated 

equipment) and hazardous emissions from any pipeline compressor or pump station shall not be 

aggregated with hazardous emissions from other similar units, whether or not such units are in a 

contiguous area or under common control, to determine whether such units or stations are major 

sources. 

(b) For radionuclides, "major source" shall have the meaning specified by 

the Administrator by rule. 

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

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

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

fugitive emissions of a stationary source shall not be considered in determining whether it is a 

major stationary source for the purposes of this paragraph, unless the source belongs to one of 

the following categories of stationary sources.![-;] 

(a) Coal cleaning plants (with thermal dryers)[;] 

(b) Kraft pulp mills[;] 

(c) Portland cement plants[;] 

(d) Primary zinc smelters[;] 

(e) Iron and steel mills[;] 

(f) Primary aluminum ore reduction plants[;] 

(g) Primary copper smelters[;] 

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

per day[;] 

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

(j) Petroleum refineries[;] 

(k) Lime plants[;] 

20.2. 70 NMAC Proposed Revisions Page 3 of 18 
(l) Phosphate rock processing plants[~] 

(m) Coke oven batteries[~] 

(n) Sulfur recovery plants[~] 

(o) Carbon black plants (furnace process)[~] 

(p) Primary lead smelters[~] 

( q) Fuel conversion plant[~] 

(r) Sintering plants[~] 

(s) Secondary metal production plants[~] 

(t) Chemical process plants[-~] 

(u) Fossil-fuel boilers (or combination thereof) totaling more than 250 

million British thermal units per hour heat input[;] 

(v) Petroleum storage and transfer units with a total storage capacity 

exceeding 300,000 barrels[~] 

(w) Taconite ore processing plants[~] 

(x) Glass fiber processing plants[~] 

(y) Charcoal production plants[~] 

(z) Fossil fuel-fired steam electric plants of more than 250 million British 

thermal units per hour heat input[~] 

(aa) Any other stationary source category, which as of August 7, 1980 is 

being regulated under section 111 or 112 of the Federal Act. 

(3) A major stationary source as defmed in part D of title I of the Federal Act, 

including: 

(a) [F]for ozone non-attainment areas, sources with the potential to emit 100 

tons or more per year of volatile organic compounds or nitrogen oxides in areas classified as 

"marginal" or "moderate," 50 tons or more per year in areas classified as "serious," 25 tons or 

more per year in areas classified as "severe," and 10 tons or more per year in areas classified as 

"extreme"; except that the references in this paragraph to 100, 50, 25, and 10 tons per year of 

nitrogen oxides shall not apply with respect to any source for which the Administrator has made 

a finding, under section 182(f)(l) or (2) of the Federal Act, that requirements under section 

182(f) ofthe Federal Act do not apply; 

(b) [F]for ozone transport regions established pursuant to section 184 of the 

Federal Act, sources with the potential to emit 50 tons or more per year of volatile organic 

compounds; 

(c) [F]for carbon monoxide non-attainment areas (1) that are classified as 

"serious," and (2) in which stationary sources contribute significantly to carbon monoxide levels 

as determined under rules issued by the Administrator, sources with the potential to emit 50 tons 

or more per year of carbon monoxide; and 

(d) [F]for particulate matter (PM10) non-attainment areas classified as 

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

R. "Operating [P]I!.ermit" or "permit" (unless the context suggests otherwise) 

means any permit or group of permits covering a source that is issued, renewed, modified or 

revised pursuant to this Part. 

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

a facility. 

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

20.2.70 NMAC Proposed Revisions Page 4 of 18 
U. "Part" means an air quality control regulation under Title 20, Chapter 2 of the 

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

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

Part, as provided in 20.2. 70.200 NMAC - 20.2. 70.299 NMAC. 

W. "Permit modification" means a revision to an operating permit that meets the 

requirements of significant permit modifications, minor permit modifications, or administrative 

permit amendments, as defmed in 20.2.70.404 NMAC. 

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

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

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

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

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

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

that must be removed prior to the application of a lifting or pulling force for the purpose of 

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

plants and concrete batch plants which meet this criteria. 

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

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

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

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

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

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

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

proposes to issue and forwards to the Administrator for review in compliance with 20.2.70.402 

NMAC. 

AB. "Regulated air pollutant" means the following: 

(1) Nitrogen oxides, total suspended particulate matter, or any volatile organic 

compounds; 

(2) Any pollutant for which a national ambient air quality standard has been 

promulgated; 

(3) Any pollutant that is subject to any standard promulgated under section 111 of 

the Federal Act; 

(4) Any Class I or II substance subject to any standard promulgated under or 

established by title VI of the Federal Act; or 

(5) Any pollutant subject to a standard promulgated under section 112 or any other 

requirements established under section 112 of the Federal Act, including sections 112(g), G), and 

(r), including the following; 

(a) any pollutant subject to requirements under section 1120) of the Federal 

Act. If the Administrator fails to promulgate a standard by the date established pursuant to 

section 112(e) ofthe Federal Act, any pollutant for which a subject source would be a major 

shall be considered to be regulated on the date 18 months after the applicable date established 

pursuant to section 112(e) of the Federal Act; and 

(b) any pollutant for which the requirements of section 112(g)(2) of the 

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

112(g)(2) requirement. 

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

20.2.70 NMAC Proposed Revisions Page 5 of 18 
AD. "Responsible official" means one ofthe following: 

(1) For a corporation: a president, secretary, treasurer, or vice-president of the 

corporation in charge of a principal business function, or any other person who performs similar 

policy or decision-making functions for the corporation, or a duly authorized representative of 

such person if the representative is responsible for the overall operation of one or more 

manufacturing, production, or operating facilities applying for or subject to a permit and either a) 

the facilities employ more than 250 persons or have gross annual sales or expenditures exceeding 

$25 million (in second quarter 1980 dollars), or b) the delegation of authority to such 

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

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

respectively. 

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

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

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

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

US EPA). 

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

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

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

other purposes under 40 CFR, Part 70. 

AE. "Section 502(b)(10) changes" are changes that contravene an express permit 

term. Such changes do not include changes that would violate applicable requirements or 

contravene permit terms and conditions that are monitoring (including test methods), 

recordkeeping, reporting, or compliance certification requirements. 

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

equipment, process equipment or process for any purpose. 

AG. "Solid waste incineration unit" means a distinct operating unit of any facility 

which com busts any solid waste material from commercial or industrial establishments or the 

general public (including single and multiple residences, hotels, and motels). The term "solid 

waste incineration unit" does not include: 

(1) [!]incinerators or other units required to have a permit under section 3005 of 

the federal Solid Waste Disposal Act; 

(2) [M]materials recovery facilities (including primary or secondary smelters) 

which combust waste for the primary purpose of recovering metals; 

(3) [Q]gualifying small power production facilities, as defmed in section 3(17)(C) 

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

defmed in section 3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B)), which bum 

homogeneous waste (such as units which bum tires or used oil, but not including refuse-derived 

fuel) for the production of electric energy or in the case of qualifying cogeneration facilities 

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

useful energy (such as heat) which are used for industrial, commercial, heating or cooling 

purposes; or 

(4) [A]~ curtain incinerators, provided that such incinerators only bum wood 

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

limitations established by the Administrator by rule. 

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

equipment, process equipment or process for any purpose. 

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

installation, or any combination thereof that emits or may emit any regulated air pollutant or any 

pollutant listed under section 112(b) of the Federal Act. 

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

partner of, the applicant or permittee. 

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

period of less than one year, after which it will be dismantled and removed from its current site 

or relocated to a new site. A temporary source may be semi-permanent, which means that is 

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

well head compressors which meet this criteria. 

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

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

preconstruction regulations promulgated under Parts C and D of the Federal Act. 

20.2.70.300 PERMIT APPLICATIONS: 

A. Duty to apply[-;L For each Part 70 source, the owner or operator shall submit a 

timely and complete permit application in accordance with this Part. 

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

this Part is: 

(1) [F]for first time applications, one that is submitted within twelve (12) months 

after the source commences operation as a Part 70 source, or as established in the transition 

schedule outlined in paragraph (4) of subsection B of20.2.70.300 NMAC; 

(2) [F]for purposes of permit renewal, one that is submitted at least twelve (12) 

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

(3) [F]for the acid rain portion of permit applications for initial Phase II acid rain 

sources under title IV of the Federal Act, by January 1, 1996 for sulfur dioxide, and by January 

1, 1998 for nitrogen oxides[:-]~ 

(4) FF]!ransition schedule[:-t [A]~ timely application for a Part 70 source which is 

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

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

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

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

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

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

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

permit, including a permit modification, pursuant to 20.2.72 NMAC, 20.2.74 NMAC, or 20.2.79 

NMAC prior to January 1, 1987, by June 19, 1995; 

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

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

(1) To be deemed complete, an application must provide all information required 

pursuant to subsection D of20.2.70.300 NMAC, except that applications for permit 

modifications need supply such information only if it is related to the proposed change. 

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

determined or deemed to be complete, the [9].gepartment determines that additional information 

is necessary to evaluate or take final action on that application, it may request such information 

in writing and set a reasonable deadline for a response. 

(3) Any applicant who fails to submit any relevant facts or who has submitted 

incorrect information in a permit application or in a supplemental submittal shall, upon becoming 

aware of such failure or incorrect submittal, promptly submit such supplementary facts or 

corrected information. In addition, an applicant shall provide further information as necessary to 

address any requirements that become applicable to the source after the date it filed a complete 

application but prior to release of a draft permit. 

(4) The applicant's ability to operate without a permit, as set forth in paragraph (2) 

of subsection A of20.2.70.201 NMAC, shall be in effect from the date a timely application is 

submitted until the final permit is issued or disapproved, provided that the applicant adequately 

submits any requested additional information by the deadline specified by the [!)]department. 

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

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

copies of the permit application, or more, as requested by the [9]gepartment. An applicant may 

not omit information needed to determine the applicability of, or to impose, any applicable 

requirement, or to evaluate the fee amount required under 20.2.71 NMAC (Operating Permit 

Emission Fees). Fugitive emissions shall be included in the permit application in the same 

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

the list of sources contained in the definition of major source. All applications shall[-:-] include 

the following. 

(1) Be made on forms furnished by the [9]gepartment, which for the acid rain 

portions of permit applications and compliance plans shall be on nationally-standardized forms 

to the extent required by regulations promulgated under title IV of the Federal Act[tl 

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

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

operator of the source, any subsidiaries or parent companies, the company's state of 

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

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

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

(3) State the date of the application[tL 

( 4) Include a description of the source's processes and products (by Standard 

Industrial Classification Code) including any associated with alternative scenarios identified by 

the applicant, and a map, such as the 7.5 minute Topographic Quadrangle map published by the 

United States Geological Survey or the most detailed map available showing the exact location 

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

coordinates[t]~ 

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

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

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

defmed in 20.2.70.7 NMAC). lbis shall include: 

(a) [A ]f!: process flow sheet of all components of the facility which would be 

involved in routine operations and emissions; 

20.2.70 NMAC Proposed Revisions Page 8 of 18 
(b) [!]identification and description of all emissions points in sufficient 

detail to establish the basis for fees and applicability of requirements of the state and Federal 

Acts; 

(c) [B]~missions rates in tons per year, pounds per hour and in such terms as 

are necessary to establish compliance consistent with the applicable standard reference test 

method; 

(d) [S]§pecific information such as that regarding fuels, fuel use, raw 

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

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

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

monitoring devices or activities; 

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

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

regulated pollutants; 

(g) [ Afl] if requested by the department, an operational plan defining the 

measures to be taken to mitigate source emissions during startups, shutdowns and emergencies; 

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

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

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

(i) [F]for each alternative operating scenario identified by the applicant, all 

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

information determined to be necessary by the [D]gepartment to define such alternative 

operating scenarios[;].,_ 

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

source, their emissions, to the extent required by the [D]gepartment, and any information 

necessary to determine applicable requirements[;]_,_ 

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

requirements, including: 

(a) [S]§ufficient information related to the emissions of regulated air 

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

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

determining compliance with each applicable requirement[;]_,_ 

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

requirements[;]_,_ 

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

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

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

NMAC (Operating Permit Emission Fees)[;]_,_ 

(10) [For applications v;hich are required under the transition schedule in 

paragraph (4) of subsection B of20.2.70.300 }~ .. C,] For first time applications for sources that 

have not submitted modeling with an application under 20.2. 72 NMAC - Construction Permits, 

include a source-only dispersion modeling analysis, using US EPA approved models and 

procedures, in accordance with New Mexico and US EPA modeling guidelines, showing whether 

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

ambient air quality standard, except ozone. Air pollutants [whieh] that are not emitted in 

significant amounts (as defined in 40 CFR 52.21(b)(23)(i)) [amounts] during routine operations 

20.2.70 NMAC Proposed Revisions Page 9 of 18 
need not be modeled. The modeling analysis shall not include emissions from insignificant 

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

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

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

ozone concentrations in excess of the national ambient air quality standard. 

[(a) This requirement shall not apply to the fullov.ing: 

(i) /",,Part 70 source issued a permit under 20.2.72 NMt\C, 20.2.74 

NMA.C, 20.2.79 NMA.C after January 1, 1986; or 

(ii) A Part 70 source subject to 20.2.14 NMAC, 20.2.16 NMAC, 

20.2.19 NMAC, 20.2.31 NMt\C, 20.2.32 mv .. c if no physical or operational modifications that 

have resulted in increased particulate matter, sulfur dioxide, or nitrogen oxide emissions have 

occurred since the time modeling v;as performed fur that facility as part ofre·visions to those 

regulations. 

(b) The Department may ·.vaive modeling ·.vith respect to ozone if the 

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

concentrations in excess of the national ambient air quality standard.] 

(11) Provide certification of compliance, including[.;] all of the following. 

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

20.2.70.300 NMAC, of the source's compliance status for each applicable requirement. For 

national ambient air quality standards: 

(i) for first time applications for sources that have submitted modeling with 

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

such modeling; 

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

with an application under 20.2. 72 NMAC - Construction Permits, this certification shall be based 

on the modeling required by paragraph 10 of this subsection; 

(iii) for permit renewal applications, this certification shall be based on 

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

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

description of monitoring, recordk:eeping, and reporting requirements and test methods[;].,_ 

(c) A statement that the source will continue to be in compliance with 

applicable requirements for which it is in compliance, and will, in a timely manner or at such 

schedule expressly required by the applicable requirement, meet additional applicable 

requirements that become effective during the permit term[;t 

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

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

underlying applicable requirement or by the [9]gepartment [;--and].,_ 

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

monitoring and compliance certification requirements of the Federal Act. 

(12) For sources that are not in compliance with all applicable requirements at the 

time of permit application, provide a compliance plan that contains.; all of the following. 

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

applicable requirements[;t 

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

such requirements for which it is not in compliance[;]_,_ 

20.2.70 NMAC Proposed Revisions Page 10 of18 
(c) A schedule of remedial measures, including an enforceable sequence of 

actions with milestones, leading to compliance with such applicable requirements. The schedule 

of compliance shall be at least as stringent as that contained in any consent decree or 

administrative order to which the source is subject, and the obligations of any consent decree or 

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

such schedule of compliance shall be supplemental to, and shall not prohibit the [9].gepartment 

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

which it is based[;L 

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

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

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

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

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

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

with the acid rain emissions limitations. 

E. Certification[-;-t Any document, including any application form, report, or 

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

responsible official of truth, accuracy, and completeness. This certification and any other 

certification required under this Part shall state that, based on information and belief formed after 

reasonable inquiry, the statements and information in the document are true, accurate, and 

complete. 

20.2. 70.302 

A. 

PERMIT CONTENT: 

Permit [G].£onditions[-;-]:. 

(1) The [I>]gepartment shall specify conditions upon a permit, including emission 

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

applicable requirements at the time of permit issuance or as specified in the approved schedule of 

compliance. The permit shall: 

(a) [F]for major sources, include all applicable requirements for all relevant 

emissions units in the major source. 

(b) [F]for any non-major source subject to 20.2.70.200 NMAC20.2. 70.299 NMAC, include all applicable requirements which apply to emissions units that 

cause the source to be subject to this Part. 

(c) [S]~pecify and reference the origin of and authority for each term or 

condition, and identify any difference in form as compared to the applicable requirement upon 

which the term or condition is based; 

(d) [I] include a severability clause to ensure the continued validity of the 

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

(e) [.J:.]jpclude a provision to ensure that the permittee pays fees to the 

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

Fees); and 

(f) [F]for purposes of the permit shield, identify any requirement specifically 

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

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

20.2.70 NMAC Proposed Revisions Page 11 of 18 
(2) Each permit issued shall, additionally, include provisions stating [that;] the 

following. 

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

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

federally enforceable permit conditions constitutes a violation of the Federal Act[;-L 

(b) It shall not be a defense for a permittee in an enforcement action that it 

would have been necessary to halt or reduce the permitted activity in order to maintain 

compliance with the conditions of the permit[~L 

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

reissued, or terminated for cause in accordance with 20.2. 70.405 NMAC[~].! 

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

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

noncompliance shall not stay any permit condition[~l 

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

exclusive privilege[~L 

(f) Within the period specified by the [9Jgepartment, the permittee shall 

furnish any information that the [9].gepartment may request in writing to determine whether 

cause exists for reopening and revising, revoking and reissuing, or termination of the permit or to 

determine compliance with the permit. Upon request, the permittee shall also furnish to the 

[9]gepartment copies of records required by the permit to be maintained. 

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

the application and approved by the [!)]department: 

(a) [S]~hall require that the permittee maintain a log at the permitted facility 

which documents, contemporaneously with any change from one operating scenario to another, 

the scenario under which the facility is operating; and 

(b) [Shhall, for each such alternative scenario, meet all applicable 

requirements and the requirements of this Part. 

( 4) The [9]gepartment may impose conditions regulating emissions during startup 

and shutdown. 

(5) All permit terms and conditions which are required under the Federal Act or 

under any of its applicable requirements, including any provisions designed to limit a source's 

potential to emit, are enforceable by the Administrator and citizens under the Federal Act. The 

permit shall specifically designate as not being federally enforceable under the Federal Act any 

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

any of its applicable requirements. 

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

not relieve any person from civil or criminal liability for failure to comply with the provisions of 

the Air Quality Control Act, the Federal Act, federal regulations thereunder, any applicable 

regulations of the Board, and any other applicable law or regulation. 

(7) The [9]gepartment may include part or all of the contents of the application as 

terms and conditions of the permit or permit modification. The [9].gepartment shall not apply 

permit terms and conditions upon emissions of regulated pollutants for which there are no 

applicable requirements, unless the source is major for that pollutant. 

(8) Fugitive emissions from a source shall be included in the operating permit in 

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

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

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

additionally: 

(a) [S]~tate that, where an applicable requirement of the Federal Act is more 

stringent than an applicable requirement of regulations promulgated under title IV of the Federal 

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

Administrator[~]; and 

(b) [G]fontain a permit condition prohibiting emissions exceeding any 

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

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

increases in emissions that are authorized by allowances acquired pursuant to the acid rain 

program, provided that such increases do not require a permit modification under any other 

applicable requirement. No limit shall be placed on the number of allowances held by the acid 

rain source. The permittee may not use allowances as a defense to noncompliance with any 

other applicable requirement. Any such allowance shall be accounted for according to the 

procedures established in regulations promulgated under title IV of the Federal Act. 

B. Permit [9]guration[;J,. The [9]gepartment shall issue operating permits for a 

fixed term of five (5) years. 

C. Monitoring[.;]~ 

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

procedures or test methods, required to assure and verify compliance with the terms and 

conditions of the permit and applicable requirements, including any procedures and methods 

promulgated by the Administrator. 

(2) Where the applicable requirement does not require periodic testing or 

instrumental or noninstrumental monitoring (which may consist of recordkeeping designed to 

serve as monitoring), the permit shall require periodic monitoring sufficient to yield reliable data 

from the relevant time period that are representative of the source's compliance with the permit, 

as reported pursuant to subsection E of 20.2. 70.302 NMAC. Such monitoring requirements shall 

assure use of terms, test methods, units, averaging periods, and other statistical conventions 

consistent with the applicable requirement. 

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

maintenance, and, when appropriate, installation of monitoring equipment or methods. 

D. Recordkeeping[.;]~ 

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

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

measurements; 

measurement. 

(a) [+]:the date, place as defmed in the permit, and time of sampling or 

(b) [+]:the date(s) analyses were performed; 

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

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

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

(f) [+]:the operating conditions existing at the time of sampling or 

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

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

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

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

reports required by the permit. 

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

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

including[.;] all ofthe following. 

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

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

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

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

a responsible official consistent with subsection E of 20.2. 70.300 NMAC[t].:. 

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

requirements, including the date, time, duration and probable cause of such deviations, the 

quantity and pollutant type of excess emissions resulting from the deviation, and any corrective 

actions or preventive measures taken. Such reports shall include telephone, verbal or facsimile 

communication within twenty-four (24) hours ofthe start ofthe next business day and written 

notification within ten (10) days[t].:. 

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

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

compliance status with [all permit] terms and conditions contained in the permit [and all 

applicable requirements relevant to the source], including [those related to] emission limitations .. 

standards, or work practices. The reports shall be due to the [9]gepartment within thirty (30) 

days of the end of the permittee's reporting period. Such compliance certifications shall be 

submitted to the Administrator as well as to the [I}]gepartment and shall include: 

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

basis of the certification; 

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

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

(d) [+].!he method(s) used for determining the compliance status of the 

source, currently and during the reporting period identified in the permit; and 

(e) [S]~uch other facts as the [Jd]gepartment may require to determine the 

compliance status of the source[;--arulL 

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

determine the compliance status of the source. 

F. Portable and Temporary Sources[.;].:. The [I}]gepartment may issue permits for 

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

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

conditions to assure that: 

(1) [+]!he source is installed at all locations in a manner conforming with the 

permit; 

(2) [+]!he source shall comply with all applicable requirements and all other 

provisions of this Part at all authorized locations; 

(3) [+]!he owner or operator shall notify the [I}]gepartment in writing at least 

fifteen ( 15) calendar days in advance of each change in location; 

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

relocated and how long it will be located there; and 

20.2.70 NMAC Proposed Revisions Page 14 ofl8 
(S) [E]~missions from the source shall not, at any location, result in or contribute 

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

under Part C oftitle I of the Federal Act. The [G]gepartment may require dispersion modeling to 

assure compliance at any location. 

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

the permit and with this Part, permits shall alsoH include all the following. 

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

required by law, the permittee shall allow authorized representatives of the [G]gepartment to 

perform the following: 

(a) [E]~nter upon the permittee's premises where a source is located or 

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

permit; 

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

conditions ofthe permit; 

(c) [!]inspect any facilities, equipment (including monitoring and air 

pollution control equipment), practices, or operations regulated or required under the permit; and 

(d) [S]~ample or monitor any substances or parameters for the purpose of 

assuring compliance with the permit or applicable requirements or as otherwise authorized by the 

Federal Act. 

(2) Require that sources required under paragraph (12) of subsection D of 

20.2. 70.300 NMAC to have a schedule of compliance submit progress reports to the 

[G]gepartment at least semiannually, or more frequently if specified in the applicable 

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

schedule of compliance and requirements of paragraph (12) of subsection D of 20.2. 70.300 

NMAC and shall contain: 

(a) [G]gates for achieving the activities, milestones, or compliance required 

in the schedule of compliance, and dates when such activities, milestones or compliance were 

achieved; and 

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

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

(3) Include such other provisions as the [9]gepartment may require. 

H. Operational Flexibility[~]~ 

(1) Section 502(b)(10) Changes 

(a) The permittee may make section 502(b)(l0) changes, as defmed in 

20.2.70.7 NMAC, without applying for a permit modification, if those changes are not title I 

modifications and the changes do not cause the facility to exceed the emissions allowable under 

the permit (whether expressed as a rate of emissions or in terms of total emissions). 

(b) For each such change, the permittee shall provide written notification to 

the [G]gepartment and the Administrator at least seven (7) days in advance of the proposed 

changes. Such notification shall include a brief description of the change within the permitted 

facility, the date on which the change will occur, any change in emissions, and any permit term 

or condition that is no longer applicable as a result of the change. 

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

copy of the relevant permit. 

(d) If the written notification and the change qualify under this provision, 

the permittee is not required to comply with the permit terms and conditions it has identified that 

20.2.70 NMAC Proposed Revisions Page 15 of 18 
restrict the change. If the change does not qualify under this provision, the original terms of the 

permit remain fully enforceable. 

(2) Emissions trading within a facility[7]~ 

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

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

permitted facility solely for the purpose of complying with a federally enforceable emissions cap 

that is established in the permit in addition to any applicable requirements. Such terms and 

conditions shall include all terms and conditions required under 20.2.70.302 NMAC to determine 

compliance. If applicable requirements apply to the requested emissions trading, permit 

conditions shall be issued only to the extent that the applicable requirements provide for trading 

such increases and decreases without a case-by-case approval. 

(b) The applicant shall include in the application proposed replicable 

procedures and permit terms that ensure the emissions trades are quantifiable and enforceable. 

The [D].gepartment shall not include in the emissions trading provisions any emissions units for 

which emissions are not quantifiable or for which there are no replicable procedures to enforce 

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

(c) For each such change, the permittee shall provide written notification to 

the [D]gepartment and the Administrator at least seven (7) days in advance of the proposed 

changes. Such notification shall state when the change will occur and shall describe the changes 

in emissions that will result and how these increases and decreases in emissions will comply with 

the terms and conditions of the permit. 

(d) The permittee and [D]gepartment shall attach each such notice to their 

copy of the relevant permit. 

I. Off-Permit Changes[ 7 1~ 

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

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

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

violate any existing permit term or condition; 

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

Federal Act and are not title I modifications; 

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

20.2. 70.404 NMAC; and 

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

[D]gepartment and US EPA of each such change, except for changes that qualify as insignificant 

activities. Such written notice shall describe each such change, including the date, any change in 

emissions, pollutants emitted and any applicable requirement that would apply as a result of the 

change. 

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

result in emissions of a regulated air pollutant subject to an applicable requirement, but not 

otherwise regulated under the permit, and the emissions resulting from those changes. 

J. Permit Shield[7t 

(1) Except as provided in this Part, the [D]gepartment shall expressly include in a 

Part 70 (20.2.70 NMAC) permit a provision stating that compliance with the conditions of the 

permit shall be deemed compliance with any applicable requirements as of the date of permit 

issuance, provided that: 

20.2.70 NMAC Proposed Revisions Page 16 ofl8 
(a) [8]~uch applicable requirements are included and are specifically 

identified in the permit; or 

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

permit modification, determines in writing that other requirements specifically identified are not 

applicable to the source, and the permit includes the determination or a concise summary thereof. 

(2) A Part 70 (20.2. 70 NMAC) permit that does not expressly state that a permit 

shield exists for a specific provision shall be presumed not to provide such a shield for that 

proVISIOn. 

(3) Nothing in this section or in any Part 70 (20.2. 70 NMAC) permit shall alter or 

affect the following: 

(a) [+]!he provisions of section 303 of the Federal Act-- Emergency 

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

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

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

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

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

section 408(a) of the Federal Act; or 

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

section 114 of the Federal Act, or the [D]gepartment to obtain information subject to the New 

Mexico Air Quality Control Act, section 74-2-13 NMSA 1978. 

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

extended past the expiration date of the permit pursuant to subsection D of20.2.70.400 NMAC. 

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

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

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

scenario included pursuant to paragraph (3) of subsection A of 20.2. 70.302 NMAC. 

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

subsection A of 20.2. 70.404 NMAC, to minor permit modifications under subsection B of 

20.2. 70.404 NMAC, to section 502(b )( 1 0) changes under paragraph ( 1) of subsection H of 

20.2. 70.302 NMAC, or to permit terms or conditions for which notice has been given to reopen 

or revoke all or part under 20.2.70.405 NMAC. 

20.2.70.304 EMERGENCY PROVISION[t]: 

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

unforeseeable events beyond the control ofthe permittee, including acts of God, which situation 

requires immediate corrective action to restore normal operation, and that causes the source to 

exceed a technology-based emission limitation under the permit due to unavoidable increases in 

emissions attributable to the emergency. An emergency shall not include noncompliance to the 

extent caused by improperly designed equipment, lack of preventive maintenance, or careless or 

improper operation. 

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

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

demonstrated through properly signed, contemporaneous operating logs, or other relevant 

evidence that: 

20.2.70 NMAC Proposed Revisions Page 17 of 18 
(1) An emergency occurred and that the permittee can identify the cause( s) of the 

emergency; 

(2) The permitted facility was at the time being properly operated; 

(3) During the period of the emergency the permittee took all reasonable steps to 

minimize levels of emissions that exceeded the emission standards or other requirements in the 

permit; and 

( 4) The permittee fulfilled notification requirements under paragraph (2) of 

subsection E of20.2.70.302 NMAC. This notice must contain a description of the emergency, 

any steps taken to mitigate emissions, and corrective actions taken. 

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

of an emergency has the burden of proof. 

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

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

20.2.7 NMAC (Excess Emissions during Malfunction, Startup, Shutdovm:, or Scheduled 

Maintenance) for permit terms and conditions issued under 20.2.70 N}.{AC]. 

20.2.70 NMAC Proposed Revisions Page 18 of 18 
BILL RICHARDSON 

Governor 

State of New Mexico 

ENVIRONMENT DEPARTMENT 

Air Quality Bureau 

2048 Galisteo St. 

Santa Fe, NM 87505 

Phone (505) 827-1494 

Fax (505) 827-1543 

RON CURRY 

Secretary 

www.nmenv.state.nm. us DERRITH WATCHMAN-MOORE 

Deputy Secretary 

April 1 7, 2006 

Ms. Gay Dillingham, Chairperson 

New Mexico Environmental Improvement Board 

Harold Runnels Building, Room N-2153 

1190 St. Francis Drive 

Santa Fe, New Mexico 87502 

:' --~ 

.·;. 

Re: EIB 05-12 (R)/Revised Petition for Public Hearing to Consider Proposed 

Amendments to Title 20, Chapter 2, Parts 3 and 70 of the New Mexico 

Administrative Code 

Dear Ms. Dillingham: 

The Air Quality Bureau of the New Mexico Environment Department (NMED) respectfully 

requests a hearing before the Environmental Improvement Board (Board) on proposed 

amendments to two of the Air Quality Rules, 20.2.3 NMAC - Ambient Air Quality Standards 

(Prui 3) and 20.2.70 NMAC - Operating Permits (Part 70). NMED originally petitioned the 

Board in August 2005 to amend 20.2.70 NMAC. That petition was granted ru1d hearing was 

scheduled for March 2006. The March 2006 hearing was rescheduled to the Board's regularly 

scheduled August 2006 meeting. Since NMED filed its original petition, NMED has reviewed 

and revised its proposed runendments and submits this revised petition. NMED requests that the 

Board consider this revised petition at its regularly scheduled meeting on May 3, 2006 and 

maintain the August 2006 hearing date for the proposed rule changes. 

In its revised petition, NMED proposes to add a new section to 20.2.3, thereby adding a new 

20.2.3.9 NMAC. The new section would provide that Part 20.2.3 does not apply to 20.2.70 

NMAC - Operating Permits. The proposed revision to 20.2. 70 NMAC described below, 

requiring that sources that have not obtained a permit or have not shown compliance with 

ambient air quality standards through modeling under 20.2.72 NMAC (Construction Permits), 

ensures that all major sources in New Mexico address the requirements of 20.2.3 NMAC as 

specified in the permitting process of 20.2. 72 NMAC. This is a revision to the New Mexico State 

Implementation Plan. 
_ Ms. Gay Dillingham 

April 17, 2006 

Page 2 

NMED proposes to clarify the procedure for affected sources to submit dispersion modeling for 

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

require that sources permitted under 20.2.70 NMAC (Operating Permits) obtain a 20.2.72 

NMAC permit if they have not done so or have not previously shown niodeled compliance with 

national and New Mexico ambient air quality standards. 

NMED's proposal clarifies that ce1iifications of compliance for new sources under 

20.2.70.300.D.ll NMAC will be based on the modeling submitted with the construction pe1mit 

application and, for sources renewing their permit, on compliance with the terms and conditions 

of the permit. NMED proposes to revise 20.2. 70.302.E.3 NMAC to clarify that annual 

compliance certifications are based on compliance with the terms and conditions in the permit. 

NMED proposes to revise 20.2.70.300.D(5)(g) NMAC to allow NMED to have discretion in 

requiring applicants to submit operational plans for start-up and shutdown. In NMED's view, 

Title V sources should comply with the terms and conditions of their permits at all times, 

including during startup and shutdown, and should be required to provide the same notification 

of violations as required at all other times. NMED also believes that Title V sources should be 

able to claim the same affirmative defenses for such violations. NMED has found that the range 

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

conditions, and as a result, the operational plans have varied widely in quality and enforceability. 

f 

NMED proposes to revise 20.2.70.304.D NMAC to match the equivalent federal language in 40 

CFR § 70.6. With this revision, the rule will require Title V sources to report violations of the 

terms and conditions in their permits and claim affirmative defenses for such violations in a 

manner consistent with other permitted sources. Currently, sources permitted under 20.2.70 

NMAC have some permit conditions that are subject to 20.2. 7 NMAC and other conditions that 

are not. 

NMED respectfully requests that the Board, at its May 3, 2006 meeting, set these proposed rule 

amendments for hearing at the Board meeting in August 2006. Enclosed is a copy of the 

proposed rule changes showing the rule provisions that NMED intends to request that the Board 

adopt at the hearing. Some editing, fmmatting, and numbering changes may occur prior to the 

August 2006 EIB meeting and NMED will provide the Board with an updated version of the 

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

Thank you for your consideration of this request. 

Sincerely, 

:::~ u h //-rut= 

Air Quality Bureau 
I'v1s. Gay Dillingham 

April 1 7, 2006 

Page 3 

Enclosure 

cc: Jim Norton, Director, Environmental Protection Division, NMED 

Kathi Bearden, Member, EIB 

Gregory Green, Member, EIB 

Dolores Herrera, Member, EIB 

Ken Marsh, Member, EIB 

Soren Peters, Member, EIB 

Harold Tso, Member, EIB 

Zachary Shandler, Counsel, EIB 

•.. I 
STATE OF NEW MEXICO 

County of Bernalillo ss 

Bill Tafoya, being duly sworn, declares and says that he is Classified 

Advertising Manager of The Albuquerque Journal, and that this newspaper is 

duly qualified to publish legal notices or advertisements within the meaning of 

Section 3, Chapter 167, Session Laws of 1937, and that payment therefore has 

been made of assessed as court cost; that the notice, copy of which is hereto 

attached, was published in said paper in the regular daily edition, for 

_i_ times, the first publication being on the ~ day of 

--vrf\...._ 0-j , 2~~i.!h __ sub~equent consecutive publications on __ _ 

....::. \ '20_. 

subscrib d to 1efore me, a Notary Public, in and 

for the County of Bernalillo and State of New Mexico this 

~day of)..-/\\n :J of20(2.~ 

PRICE~ \ le to 1 l 9, 

Statement to come at end of month. 

•. 
NEW MEXICO 

ENVIRONMENTAL 

IMPROVEMENT BOARD 

NOTICE OF PUBLIC MEETING 

AND RULE MAKING HEARING 

The New Mexico Environmental 

Improvement Board ("Board') will 

hold a public rule making heanng on August 1, 2006 at 9:00 a.m. at 

the State Ca~itol Building, Room # 

321, Santa Fe, New Mexico, to 

consider the matter of EIB 

05-12(R) to revise 20.2.3 NMAC 

(Ambient Air Quality Standards), 

20.2.70 NMAC (Operating Permits) 

and 20.2.72 NMAC (Construction I 

Permns). · The proponent of the regulatol'}' I 

change is the New Mexico Environment Department ('NMED'l. 

Proposed revisions to 20 .• 2.70 

NMAC: 

NMED pr~ses to amend the 

definition of applicable require· ment' in the rule by removing the 

New Mexico Ambient Air Quality 

Standards ('NMAAOS'); to clari~ 

the procedure for affected source~ 

to submH dispersion modeling f01 

and to certify compliance witn tho 

National Ambient Air Quality Stan• 

dards· ('NAAQS'); and to require that sources permitted under . 20.2.70 NMAC (Trtle V permits) 

obtain a 20.2. 72 NMAC or 20.2. 7 4 

NMAC permit if they have not 

done so previously. NMED's pro- posal clanlies that certifications of 

compliance for new sources under 

20.2.10,300.0.11 NMAC will be . b!!-5ed on the moc;teling submit!e~ i With the construct1on permit appli- cation and, for sources renew1ng their permit, on compliance 'llill1 

the terms and condifions of the 

permH. NMED proposes to revise . 20.2.70.302.E.3 NMAC to clarify t~at annual complianCe certifications are based on com~liance 

w1th the terms and conditions in 

the permij, 

NMED proposes to reVise 

20.2.70.300.D(5)(Q) NMAC to give 

NMED discretiOn 1n requiring ap-· i plicants to submit operational 

I plans for start-up and shutdown. 

NMED proposes to revise 

20.2. 70.304. D NMAC to match the 

equivalent federal languaQe in 40 

CFR 70.6. With this revision, the 

rule will require nte V sources to 

report violations of the terms and 

conditions in their permits and 

claim affirmative defenses for such 

violations in a manner consistent 

with other permitted soun:es. Cur- rent!~. sources permitted under 

20.2.70 NMAC have some permtt 

conditions that are subject to 

20.2.7 NMAC and other conditions 

that are not. 

Proposed revision to 20.2.3 

NMAC: . ' 

NMED proposes to add section 

20.2.3.9 NMAC to 20.2.3 NMAC, 

l)'hlch would provide that 20.2.3 

NMAC would not apply to 20.2. 70 

1 NMAC • Operating Permits. The 

proposed revision to 20.2. 70 · NMAC that requires sources that 

have not obtairied a perm~ under 

20.2. 72 NMAC (Construction Permtts) or 20.2.74 NMAC {Permits - Prevention of Significant Deterioration) ensures that al~ sources in 

New Mexico will meet the reqwrements of 20.2.3 NMAC. This is a revision to the New Mexico State , Implementation Plan. _ I Proposed revisions to 20.2.72 

\NMAC: 

NMt:D proposes to revise 

20.2.72.216 NMAC so that it will 

apply to existing, sources that do 

not propose an 1ncrease 1n emissions but will emit a regulated air 

contaminant exceeding the significant concentration for thai pollutant listed in 20.2.72.500 NMAC at any location that does not meet 

the NAAQS for the contaminant. In 

aodilion, subseC\ion C is added \o 

require that existing sources sutr 

ject to the section must demonstrate a net air quality benefit of at 

least a 20 percent reduction in 

ambient impact for each applicable 

; contaminant · ' The proposed changes may be 

reviewed during regular business 

hours at the NMED Air Quality Bureau office, 2044 Galisteo, Santa Fe, 'New Mexico. A full text of 

NMED's proposed changes are available on NMED's weo site at 

www.nmenv.state.nm.us, or ~ 

. contacting Rita Trujillo at (505).1' 955-8024or 

rita.trujilio@state.nm.us. · The hearing will be. conducted. 

' in accordance with 20.1.1 NMAC 

{Aulemaking Procedures) Environmental Improvement Board; the 

Environmental Improvement Act, 

Section 7 4-1·9 NMSA 1978; .the 

Air Quality Control Act Section 

72·2-6 NMSA 1978; and other applicable procedures. . . All interested persons will be 

given reasonable opportunity a_ t 

the hearing to submh relevant evi· 

dence, data, views and arguments, 

orallY or in wrHing, to introduce 

exhiMs, and to examine witness: es. Persons wishing to present 

technical testimony must file with 

the Board a written notice of intent 

to do so. The notice of intent shall: 

{1) identify the person for whom 

!he witnesS(es) will testify; · 12) identify each technical witness 

ihat the person intends to present 

and state the gualifications of the 

witness, includ1ng a description of 

their education and work back- ound; 

3) summarize or include a y of · t e direct testimony of eac~ch· nical witness and state the anticipated duration of the testimony of 

that witness; 

i4) list and describe, or attach, 

each exhibit anticipated to be of. 

fered ~ that person at the hear· 

(~r :ttach the text of any recom· mended modHications to the pro· 

posed changes. Notices ol intent for the hearing 

must be received in the Office ol ---the Board not later than 5:00 pm .an July 7, 2006, ·and should ref· erence the docket number, EIB 

05·12(A), and the date of tlie 

hearing. Notices of intent to present tec1mical testimony ~hould be 

submitted to: · Joyce Medina, 

Board Administrator 

Office of the Environmental 

Improvement Board 

Harold Runnels Building 

1 t 90 St. Francis Dr., 

Room N-2150/2153 

Santa Fe, NM 87502 · Phone: (505) 827-2425, 

Fax {50S) 8:17-2836 . Any member of the general 

public may testify at the ~earing. 

No prior notification is reguired ro present non-technical testimony at 

the hearing. Any such member 

may also offer exhibHs in connec· lion with his testimony, so kmg as \he exhib" is not unduly repetltrous 

of the testimony. A member ol the general public 

whO wishes to submit a written 

statement for the record, in Neu of 

providing oral testimony at the 

hearing, shall file the wlitten stale· 

ment prior to the healing, or sub- mn ~ at the hearing. 

I Persons having a disability and 

needing help in being a art of this 

.

1 

healing process sfiou~ contact 

Judy Bentley by July 18, 2006 at 

the NMED Personnel Services 

Bureau, P.O. Box26110, 1190 St. 

Francis Drive, Santa Fe, New 

Mexico, 87502, telephone 

505-827-9872. TOY users please access her number via the New 

Mexico Relay Network at 

1-800-659-8331. 

The Board may deliberate and 

rule on the proposed amendments 

at the close of the healing or the 

Board may convene a meeting after the healing_ to consider action 
STATE OF NEW MEXICO 

ENVIRONMENTAL IMPROVEMENT BOARD 

IN THE MATTER OF THE PETITION 

FOR PUBLIC HEARING TO CONSIDER 

PROPOSED AMENDMENTS TO 

20.2.70NMAC, AIR QUALITY RULES, 

OPERATING PERMITS 

NMED'S STATEMENT OF INTENT 

TO PRESENT TECHNICAL EVIDENCE 

r:; JUL 2006 

g Received ~. · EMooo~t~! Ill;~ ,, k~ 

~ ~ ~ ~ ~.:.. A(d 

~.9-... . 0"' 

,c,~~~"tt~ 

Pursuant to Section 20.1.1.300.C NMAC, the New Mexico Environment Departmen~ 

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

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

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

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

Goodyear's qualifications is attached as NMED Exhibit A. 

3. Summary of testimony. A summary of Mr. Goodyear's direct testimony is 

attached as NMED Exhibit B. 

4. Text of recommended modifications to the proposed regulatory change: A copy 

ofNMED's recommended modifications to 20.2.70, 20.2.3, and 20.2.72.216 

NMAC is attached as NMED Exhibits C-1, C-2, and C-3, respectively. NMED's 

recommended modifications appear in redline/strikeout format and are 

highlighted. 

5. List of exhibits at hearing: 

A. Mr. Goodyear's resume. 

B. A summary of Mr. Goodyear's direct testimony. 
C. A copy ofNMED's recommended modifications to 20.2. 70, 20.2.3, and 

20.2. 72.216 NMAC. 

D. Affidavits of publication in New Mexico Register and Albuquerque 

Journal. 

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

proposed regulatory change. 

NMED reserves the right to introduce rebuttal testimony and exhibits. 

Respectfully submitted, 

NEW MEXICO ENVIRONMENT DEPARTMENT 

Tannis L. Fox 

Deputy General Counsel 

Office of General Counsel 

P.O. Box 26110 

Santa Fe, New Mexico 87504 

(505) 827-1603 

Attorney for NMED 

Certificate of Service 

I certify that a copy of the foregoing pleading was served by mail on July 7, 2006 on 

Zachary Shandler, Assistant Attorney General, Office ofthe Attorney General, P.O. Box 1508, 

Santa Fe, New Mexico 87504-1508. 

Tannis L. Fox 

2 
RICHARD GOODYEAR 

TITLE: 

Engineering Manager (Admin/ops) 

Registered professional engineer in NM 

EDUCATION: 

B.S., United States Military Academy, 1970 

M.S., Mechanical Engineering, Iowa State University, 1975 

EXPERIENCE (May 06): 

Air Permitting Experience with NMED/AQB: 13.8 years 

Total Environmental Experience: 17.8 years 

Total Technical Experience: 34.8 years 

Total Managerial Experience: 27.3 years 

TECHNICAL EXPERIENCE: 

Environmental 

• 1987 - 1991: Planned, organized, and directed the environmental program of a military 

community - to include compliance with federal, state, and local laws on solid waste, 

radon, asbestos, hazardous waste, water quality, sewage treatment, and underground 

storage tanks. 

• 1992 - 1993: Processed construction permit applications for the state of New Mexico. 

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

of New Mexico. 

• 1996- present: Directs all air permitting programs for the state of New Mexico. 

Military 

1970 - 1991: Troop unit experience included positions of platoon leader and commander at 

engineer company level, and personnel officer, logistics officer, equipment maintenance officer, 

and executive officer at engineer battalion level. Other assignments included deputy project 

manager for research and development of a subsystem of a military rocket, assistant professor of 

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

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

TECHNICAL TRAINING 

EPA 413 - Control of Particulate Emissions 

EPA 415 - Control of Gaseous Emission 

EPA 423 - Dispersion of Air Pollution - Model Applications 

EPA 427 - Combustion Evaluation 

EPA 461 - Intermediate Permitting 

EPA 454 -Effective Permit Writing 

NMED EXHIBIT 

A 
EPA 400 - Introduction to Air Toxics (SI) 

Stress Management and Effective Communication Skills, 1997 

Dealing with Conflict and Negativity in the Workplace, 1997 

How to Deal with Employee Attitude Problems, 1998 

Communication and Conflict Management, 1998 

SFCC Management Development Program, 1998 

NMED Legal Training/Documentation, 1999 

Systematic Development of Informed Consent, 1999 

The Public Servant Manager, 2000 

7 Habits of Highly Successful People, 2000 

Management Conference, 2000 

Improving Teamwork, 2001 

Conflict Management, 2001 

Emotional Intelligence, 2001 

Recruiting and Interviewing Skills, 2001 

Organizational Courage in State Government: A Practical Guide for Documenting Discipline, 

2001 

New Mexico Public Servant Leadership Program, 2001 

Woodstock Institute for Negotiation - Negotiating, Collaborating, and Leading in Today's 

World, 2001 

Managing Organizational Performance, 2002 

SFCC Management Development Program, 2006 

Public Sector Employment Law for Managers and Supervisors, 2006 
STATE OF NEW MEXICO 

ENVIRONMENTAL IMPROVEMENT BOARD 

IN THE MATTER OF THE PETITION 

FOR PUBLIC HEARING TO CONSIDER 

PROPOSED AMENDMENTS TO 

20.2.70 NMAC, AIR QUALITY RULES 

OPERATING PERMITS 

No. EIB 05-12(R) 

NEW MEXICO ENVIRONMENT DEPARTMENT'S DIRECT TESTIMONY 

I. INTRODUCTION 

The New Mexico Environment Department ("Department") comes before the 

Environmental Improvement Board ("EIB") to request changes to several Air Quality Control 

Regulations. The Department's major proposals are: 

1. The Department proposes to clarify that the New Mexico Ambient Air Quality 

Standards ("NMAAQS") are applied lo major sources under 20.2.72 NMAC- Construction 

Permits and are implemented in the operating permit as part of the incorporated construction 

permit. 

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

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

3. The Department proposes to allow discretion in requiring applicants to submit 

operational plans for startup and shutdown so that the plans that are submitted with Title V 

applications are appropriate and meaningful. 

4. Finally, the Department proposes to change the section on emergency operation in 

the Title V rule. 

The Department's proposals concern the EIB's implementing Title V ofthe federal Clean 

Air Act ("CAA"), and two regulations that are part of the New Mexico State Implementation 

Plan (SIP)- the construction permits rule (20.2.72 NMAC) and the ambient air quality standards 

DIRECT TESTIMONY - PAGE 1 

NMED EXHIBIT 

8 
rule (20.2.3 NMAC). These SIP rules have been in place since 1972 and 1970 respectively, and 

have been revised over the years. Title V was adopted as part of the 1990 CAA Amendments. It 

was intended to consolidate into a single comprehensive enforceable document, called the 

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

considered to be "major" if it has the potential to emit more than one hundred (1 00) tons per year 

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

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

pollutant ("HAP"); or twenty five (25) tons per year of all hazardous air pollutants. In 1992, the 

U.S. Environmental Protection Agency ("EPA") adopted regulations establishing the minimum 

requirements for state Title V programs. In 1993, the EIB adopted regulations for New Mexico's 

Title V program. See 20.2.70 NMAC- Operating Permits (formerly Air Quality Control 

Regulation 770 ("AQCR 770")). In 1994, the EPA granted interim approval of New Mexico's 

Title V program and, in 1996, it granted final and full approval. 

A significant issue in this hearing concerns the applicability of the NAAQS and 

NMAAQS to major sources subject to New Mexico's Title V program. The NAAQS and 

NMAAQS are designed to ensure clean and healthy air for the citizens and environment ofNew 

Mexico. They are set to prevent pollutant levels in ambient air that could affect the health of 

sensitive populations such as children, the elderly, and the infirm, cause damage to the 

environment including wildlife, crops, and building materials, or create haze that obscures 

visibility across our scenic state. The EPA has adopted NAAQS for NOx, SOx, PM, CO, lead, 

and ozone. The EIB has adopted NMAAQS for NOx, SOx, and CO, as well as total suspended 

particulates ("TSP"), hydrogen sulfide ("H2S"), and total reduced sulfur ("TRS"). The 

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

DIRECT TESTIMONY- PAGE 2 
the NAAQS. 

One of the Department's most important functions is to ensure compliance with the 

NAAQS and NMAAQS. By ensuring compliance with these standards, the Department prevents 

health and welfare impacts from large industrial facilities, prevents facilities that produce 

excessive dust like rock crushers and asphalt plants from locating nearer to residences and 

recreational areas, controls the emission of dangerous pollutants like H2S, which smells bad and 

is deadly in high concentrations, and minimizes environmental impacts like acid rain and haze. 

The Department ensures compliance with the NAAQS and NMAAQS in two ways. 

First, the Department operates a system of air quality monitors. However, it is expensive to 

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

pollutants to ensure compliance throughout the state. Therefore, the Department relies on air 

quality modeling, like the EPA and all of the states, to ensure that pollution sources comply with 

the NAAQS and NMAAQS. Modeling is particularly useful for predicting air quality impacts 

from pollution sources, especially in the complex terrain of New Mexico. 

Most pollution sources in New Mexico comply with the NAAQS and NMAAQS. The 

construction permit regulation, 20.2.72 NMAC, requires all new sources to demonstrate 

compliance with the NAAQS and NMAAQS before commencing construction (20.2.72.200.A.l 

NMAC). However, some sources were existing when the EIB adopted the construction permit 

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

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

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

potential emission rate of a regulated pollutant or the emission of a regulated pollutant not 

previously emitted by the source (20.2.72.7.P NMAC). In some cases, these existing sources did 

DIRECT TESTIMONY- PAGE 3 
not comply with the NAAQS and NMAAQS. When these sources make a modification, the 

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

long as they offset their impact on the applicable standard (20.2. 72.208.D NMAC). 

Since the EIB adopted these requirements in 1972, many existing sources that did not 

comply with the NAAQS and NMAAQS have made modifications. Most of these sources now 

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

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

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

never reviewed under the construction permit regulation, and some of them continue to exceed 

the NMAAQS and have never complied with the offset provision. Of this last category of 

sources, some are "major" under Title V. 

For all major sources, regardless of their date of construction, the operating permit 

regulation currently requires compliance with the NAAQS and NMAAQS. However, the 

regulation does not require all major sources to conduct air dispersion modeling to demonstrate 

compliance with the NMAAQS. As a result, some major sources that were never reviewed 

under the construction permit regulation, because they existed before the construction permit 

regulation and were never modified, were able to avoid the obligation to demonstrate compliance 

with the NMAAQS under the operating permit regulation. 1 

This loophole was not exploited by all major sources in this category. Some of them voluntarily 

conducted air dispersion modeling and reduced emissions to comply with the NMAAQS. Others 

have done the same to settle enforcement actions for unrelated air quality violations. Eight (8) 

1 The requirement for air dispersion modeling differed for the NAAQS and NMAAQS, and all major sources have 

complied with the requirement for the NAAQS. 

DIRECT TESTIMONY- PAGE 4 
major sources in their current configuration have not conducted air dispersion modeling for 

NMAAQS.2 

The Department believes that it is important to hold these sources accountable for their 

pollution by first detem1ining whether they are causing an exceedance of the state standards and 

by then requiring corrective actions to comply with the NMAAQS, such as raising stack heights, 

taking enforceable limitations on hours of operation, or replacing old compressor engines. 

Since 1997, the Department has worked with Title V sources to obtain voluntary 

compliance with the NMAAQS. Over the years, the Department met numerous times with Title 

V sources, including at least four ( 4) public meetings (Jan 8, 2001, Oct 8, 2002, Sep 21, 2004, 

July 6, 2006), to hear and respond to their concerns. In addition to holding public meetings, the 

Department met with numerous stakeholders, including industry and public representatives, on 

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

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

final public meeting on this issue in Santa Fe on July 6, 2006, to discuss the proposed regulatory 

changes with the public. Industry, environmental and public members were invited. Seven 

industry representatives attended this meeting. The Department revised its proposal for Part 70 

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

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

preempt the Department from enforcing the NMAAQS by petitioning the EIB to delete the 

NMAAQS from the applicable requirement definition. Some of these sources also appealed 

Title V permits that identified the NMAAQS as an applicable requirement or that required 

2 The owners and sources include: Transwestem!Roswell Compressor Station, Transwestern/Thoreau Compressor 

Station; El Paso Electric/Rio Grande Station; HLBrown/Bluitt Gas Plant; Frontier/ Lusk Compressor Station; 

Versado/Buckeye Compressor Station; Versado/Eunice North Compressor Station; Versado/Saunders Gas Plant. 

DIRECT TESTIMONY- PAGE 5 
compliance plans. In response, the Department filed its own petition. Before a hearing could be 

held, the EIB stayed the petitions to allow the legislature an opportunity to resolve the dispute in 

its 2003 session. 

At the urging of these sources, the Department requested an appropriation from the 

legislature to study and update the NMAAQS. The NMAAQS were adopted by the EIB and 

approved by EPA in 1970. In 1995, the EIB repealed the NMAAQS that were obsolete. 

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

24-hour NOx NMAAQS, were too stringent and should be deleted. To address these arguments, 

the Department conducted an extensive literature survey, which found that more than one-half of 

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

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

the legislature for a more formal study. However, the legislature did not approve the request. 

Beginning in May 2003 and extending through April2005, El Paso Natural Gas 

Company ("EPNG") appealed to the EIB the issuance of eleven Title V permits, disputing the 

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

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

Some of the parties that submitted Notices of Intent to Present Technical Testimony opposing the 

Department included the New Mexico Oil and Gas Association ("NMOGA"), Phelps Dodge 

Corporation ("PD"), and Waste Management ofNew Mexico, Inc. ("WMI"). In late October 

2004, EPNG approached the Department requesting negotiations to settle its permit appeals. 

These negotiations commenced immediately and continued until the Department finalized 

settlement agreements with both EPNG and NMOGA in June 2005. Consequently, on June 6, 

2005, the Department withdrew its petition for hearing. The regulatory changes proposed by the 

3 The Department also found that nearly two-thirds of the reported studies supported the SOx NMAAQS. 

DIRECT TESTIMONY - PAGE 6 
Department in this rulemaking are based on the concepts or specifics of the settlement agreement 

with EPNG. 

II. PROPOSED REGULATORY CHANGES 

As mentioned, the Title V operating permits rule, Part 70, has been in place for over 10 

years. The Department's experience over that time has led us to believe that it is necessary to 

make some changes to reduce confusion and eliminate unnecessary requirements, as well as to 

remedy the ambient standards issue. Although there are numerous changes in the sections 

presented in our proposal, most of them are not substantive and serve only to comply with the 

requirements of the Commission of Public Records rule at 1.24.1 0 NMAC. The following 

discussion addresses the substantive changes. 

A. 20.2. 70.5 NMAC 

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

of a section" to 20.2.70.5 NMAC. The new language conforms Part 70 with the EIB's other air 

quality regulations, and alerts the reader that certain sections may have been revised after the 

effective date of the regulation. 

B. Applicable requirements, 20.2.70.7.E NMAC 

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

20.2.70.7.E NMAC. The term clarifies the applicability ofthe NAAQS to Title V sources by 

negating a recent argument raised by some members of the regulated community. The 

introductory paragraph currently states that the applicable requirements include "all of the 

following, as they apply to emissions units at a Part 70 source." Some members of the regulated 

community have argued that this language precluded enforcement ofNAAQS because the 

NAAQS are applicable to Part 70 sources, not emission units. The argument contradicts the 

DIRECT TESTIMONY- PAGE 7 
principle of construction that a regulation should be harmonized with other parts of the 

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

unit" is defined as "any part or activity of a stationary source that emits or has the potential to 

emit any regulated air pollutant or any [HAP]" (20.2.70.7. J NMAC). The NAAQS apply to 

each such part or activity of a stationary source; if there is more than one part or activity, the 

NAAQS apply to the cumulative emissions. To eliminate any confusion on this issue and ensure 

enforcement of the NAAQS, the Department proposes to clarify that the listed requirements 

apply to Title V sources, as well as emission units, as applicable. 

C. Stationary source, 20.2.70.7.AI NMAC 

The Department proposes to clarify the definition of "stationary source" by adding the 

phrase "or any combination thereof' so that the definition reads that "' [ s ]tationary source' or 

'source' means any building, structure, facility, or installation, or any combination thereof that 

emits or may emit any regulated air pollutant or any pollutant listed under section 112(b) of the 

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

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

entities, such as national laboratories and military bases, are "stationary sources" subject to Part 

70, rather than the individual buildings, structures, facilities, and installations which comprise 

them. 

D. Requirement for a construction permit, 20.2. 70.201.0 NMAC 

In light of recent settlements (including the EPNG settlement) that have or will result in a 

significant decrease of emissions from some of the largest, oldest, and least controlled industrial 

facilities in New Mexico, and the availability of other approaches for reducing emissions at the 

few remaining sources for which NMAAQS compliance may still be an issue, the Department 

DIRECT TESTIMONY- PAGE 8 
believes that the NMAAQS does not need to be an explicit, applicable requirement under the 

operating permit rule. We've retained the national ambient air quality standards as an applicable 

requirement for Title V sources because they are health-based. The changes we propose do not 

remove the NMAAQS requirement from the Title V sources, but only change the program in 

which it will apply. The NMAAQS would be applied to major sources under 20.2.72 NMACConstruction Permits and would be implemented in the operating permit as part of the 

incorporated construction permit. In order to achieve this goal we propose to make changes to 3 

different regulations: 

a. The Title V permitting rule, 20.2.70 NMAC at section 20 l.D; 

b. The state ambient air quality standards rule, 20.2.3 NMAC at section 9; and 

c. The new source review permitting rule, 20.2.72 NMAC at section 216. 

1. Title V permitting rule, 20.2. 70 NMAC at section 201.D 

The addition of paragraph 201.D to 20.2.70 NMAC will allowNMED to ensure that 

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

under either 20.2.72 NMAC (Construction Permits) or 20.2.74 NMAC (Permits- Prevention of 

Significant Deterioration (PSD)) comply with the requirements under 20.2.72 NMAC. 20.2.72 

NMAC requires a modeling demonstration to show whether emissions comply with New Mexico 

and National Ambient Air Quality Standards. Violation of these standards is addressed in 

section 216 of20.2.72 NMAC. The deadline of 180 days ensures that the landfills and the four 

grandfathered Title V sources act expeditiously. The provision for the Department to grant an 

extension to this deadline reflects the potential problems that a source may face in trying to 

determine how to achieve the required progress toward compliance and in the coordination that 

may be needed with equipment suppliers. Since May 1, 2006, when we submitted a revised 

DIRECT TESTIMONY- PAGE 9 
paragraph 201.D to the EIB, we have a better appreciation for the impact of this paragraph on 

landfills. New Mexico has 7 landfills with Title V permits and one application in process.

4 All 

but one have modeled for state and federal standards, have shown compliance, and have 

conditions in their Title V permits to ensure compliance. For the one exception (Clovis), the 

Department agreed that its emissions were so low that no modeling was necessary. There is no 

reason to have these sources obtain a construction permit, which would be required by the 

previous section 20.2. 70.20 l.D of our proposal. Hence, the Department proposes the additional 

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

In new section 20 l.D(l ), the first sentence was in our previous proposal and can only 

apply to sources that already have a Title V permit. However, there will be new landfill sources 

in the future as they get bigger and trip the threshold for applicability of Title V. Hence, 

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

For either category we want to exclude sources that want to model and show full compliance in 

the Title V program, because most of the landfills have already done so. Paragraph (3) 

establishes this exclusion and may also exclude any of the 8 other sources on the Department's 

list that can meet the exclusion requirement. For example, Versado told the Department that it 

was in the process of modeling for the company's sources on the list. If it shows compliance 

with all standards and request appropriate conditions in its Title V permits, there is no need to go 

through the construction permit process. The 60 day time in paragraph (2) allows an applicant to 

submit a Title V application and request the exclusion before an NSR permit would be due. 

2. State ambient air quality standards rule, 20.2.3 NMAC at section 9 

We need to add section 9 to 20.2.3 NMAC because 20.2.70 NMAC and the federal rule 

4 CarlsbaciJSand Point Landfill, Clovis Regional Landfill, Northeast New Mexico Regional Landfill, Otero/Lincoln 

landfill, Santa Fe Caja Del Rio Landfill, Camino Real Landfill, Rio Rancho Landfill, Sandoval County Landfill. 

DIRECT TESTIMONY- PAGE 10 
on which it was based, 40 CFR Part 70, require any regulation that is part of the State 

Implementation Plan to be an applicable requirement for a Title V source. 20.2.3 NMAC is part 

of the New Mexico SIP. Section 9 removes the NMAAQS from the applicability requirements 

for all Title V sources, but the new language also ensures that sources that request a permit under 

the construction permit rule, 20.2.72 NMAC, know that these standards must continue to be 

addressed in their application. The new language also alerts Title V sources that when the 

NMAAQS result in conditions in their construction permit, those conditions are applicable 

requirements for the Title V permit. 

3. New source review permitting rule, 20.2.72 NMAC at section 216 

Section 216 of20.2.72 NMAC is changed to move sources that are causing violations 

toward compliance in a way that is consistent with past practice for minor sources. The changes 

in paragraphs A(l) and A(2) are clarifications of existing language and do not change the 

~equirements. Paragraph A(3) is added to address the Title V sources that would need to apply 

for a construction permit. I want to note that since May 1, 2006, when we submitted this 

proposed paragraph to the EIB, we have added the words "or New Mexico" to include the state 

ambient air quality standards. Failure to include them was an oversight at the time. This 

paragraph also addresses all other major and minor sources that may be causing a violation of 

standards, but do not submit an application that falls under A(l) or A(2), such as the remaining 

four Title V sources that do have construction permits but haven't modeled. It is the 

Department's intention that any such minor or major source would have to comply with the new 

paragraph C upon submittal of any permit revision under section 219 of20.2.72 NMAC. New 

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

of 20% reduction in ambient impact that for years has been expressed in our written modeling 

DIRECT TESTIMONY- PAGE 11 
guidance to permit applicants. Industry has accepted this concept in the past even though it was 

not a regulatory requirement. The formula for determining the projected source impact based on 

a reduction of 20% and the reference to 20 .2. 79.117 NMAC serve to provide consistency among 

different sources and cases. 

E. Deletion of transition schedule, 20.2.7.300.B(4) NMAC 

This section established the schedule to submit applications for existing sources subject 

to the Title V rule at the time of its approval. All such applications were submitted; 

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

F. Content of permit application, 20.2. 70.300.D(5)(g) NMAC 

One of the items that the current regulation requires as part of the Title V permit 

application is an operational plan. The Department proposes to revise 20.2.70.300.D(5)(g) 

NMAC to allow discretion in requiring applicants to submit operational plans for startup, 

shutdown, and emergencies. The federal rule, 40 CFR Part 70, does not require the submittal of 

operational plans in applications. Title V sources should comply with the terms and conditions 

of their permits at all times, including during startup and shutdown, and should provide the same 

notification of violations as required at all other times. The Department has found that the range 

offaci1ities subject to the operational plan requirement is too broad to allow us to provide 

practical, generally applicable guidance. Also, it is very difficult to forecast and address all the 

possible circumstances that could cause a malfunction or emergency. As a result, the operational 

plans have varied widely in quality and enforceability. In practice, emissions may be minimized 

better by taking steps that are different from those set forth in a plan that may have been 

submitted several years ago. Operational plans for simple equipment, such as engines, don't 

appear to provide much value; whereas, such a plan for complex equipment such as sulfur 

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

G. Content of permit application, 20.2. 7.300.D(10)(a) NMAC 

The original section D(l 0) of20.2.7 NMAC established a one-time NAAQS modeling 

requirement for existing sources subject to the Title V rule at the time of its approval. 

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

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

sources should base any certification of compliance with the NAAQS for new and renewal Title 

V applications. A key element ofthe Title V program is the requirement for responsible officials 

to certify the truth, accuracy, and completeness of any document submitted to the permitting 

agency. Under the CAA, certification is a minimum requirement for state Title V programs. 

Accordingly, Part 70 requires major sources to certify their compliance with all applicable 

requirements. The Department's proposal clarifies that certifications of compliance for new 

sources will be based on the modeling submitted with a previous construction permit application. 

This approach is logical since any new emissions unit or source must obtain a construction 

permit and perform modeling. For sources renewing their permit, the Department proposes that 

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

permit. Again, this approach is logical since terms and conditions of construction permits are 

brought into the most current operating permit. This proposed change should only address the 

NAAQS since they are intended to be the only ambient standard that is directly applicable to a 

Title V source. Nevertheless, certification with permit conditions inherently reflects compliance 

with the NMAAQS, because some conditions of construction permits are created to ensure 

compliance with these standards. 

DIRECT TESTIMONY- PAGE 13 
H. Permit content, 20.2.70.302E(3) NMAC 

The Department proposes to revise section 302.E.3 of 20.2.270 NMAC to clarify that 

annual compliance certifications are based on compliance with the terms and conditions in the 

permit. The changes in words here do not really change the requirement; they conform the 

language of the changed sentence to the federal language at 40 CFR § 70.6(c)(5). In 1993, the 

Department's deviation from the federal language created confusion about what applicable 

requirements the annual compliance certification actually addresses. Responsible officials have 

been reluctant to sign certifications of compliance that generically refer to all applicable 

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

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

requirements in the operating permit; if we make a mistake, we can re-open the permit at any 

time to fix the problem. Nor does this regulatory change allow a source to avoid accountability 

for complying with all applicable requirements if they are not identified in the permit. The 

Department would take enforcement action if a source failed to comply with an applicable 

requirement even if it was not listed in the permit. 

I. Emergency provision, 20.2.70.304.D NMAC 

The Department proposes to revise this section to conform our rule to the federal rule 

language at 40 CFR § 70.6(g)(5). Currently, sources permitted under 20.2.70 NMAC have some 

permit conditions that are subject to 20.2.7 NMAC- Excess emissions during malfunction, 

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

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

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

permits rule, but 20.2. 7 NMAC does not apply to any federal requirement found in the Code of 

DIRECT TESTIMONY- PAGE 14 
Federal Regulations ("CFR"), which contains its own provisions for dealing with violations of 

the CFR. When these federal and state applicable requirements are incorporated in an operating 

permit, they bring with them their own emergency and upset provisions. The operating permit 

rule does allow new conditions to be created to ensure compliance with these other requirements, 

if these requirements do not already include adequate monitoring provisions to ensure 

compliance. Yet, the existing language at section 304.D does not allow 20.2. 7 NMAC to apply 

to these new conditions created under the authority of 20.2. 70 NMAC, resulting in confusion 

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

is no real benefit to having this distinction. With this revision, the rule will require Title V 

sources to report violations of the terms and conditions in their permits and claim affirmative 

defenses for such violations in a manner consistent with sources pennitted under 20.2.72 NMAC. 

III. CONCLUSION 

After 12 years of experience with the operating permits program, the Department 

requests the EIB to adopt these proposals. By making these clarifications and changes, the EIB 

will provide a practical and reasonable way for major and minor sources to fulfill their obligation 

to comply with the NAAQS and NMAAQS. By focusing on a small group of sources that have 

been able to avoid provisions of our rules that would cause demonstration of compliance with 

ambient standards, the EIB can prevent or reduce emission impacts that are harmful to public 

health and the environment, and obtain emission reductions from some of the oldest and dirtiest 

facilities in New Mexico. Additionally, the EIB can make changes that will reduce the 

bureaucracy and potential for confusion in conducting the air permitting program without 

reducing the effectiveness of the program. 

DIRECT TESTIMONY- PAGE 15 
The Department proposes that the Board adopt the following revisions to 20.2. 70 NMACOperating Permits. 

20.2.70.5 

section. 

EFFECTIVE DATE: 11/30/95, except where a later date is cited at the end of a 

20.2.70.7 DEFINITIONS: In addition to the terms defined in 20.2.2 NMAC (Definitions), 

as used in this Part the following definitions shall apply. [-:-J 

A. "Acid rain source" has the meaning given to "affected source" in the regulations 

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

Federal Act. 

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

and Indian [+]1ribes and [P.]gueblos, that are within 50 miles of the source. 

C. "Air pollutant" means an air pollution agent or combination of such agents, 

including any physical, chemical, biological, radioactive (including source material, special 

nuclear material, and byproduct material) substance or matter which is emitted into or otherwise 

enters the ambient air. Such term includes any precursors to the formation of any air pollutant, 

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

purpose for which the term "air pollutant" is used. This excludes water vapor, nitrogen (N2), 

carbon dioxide (C02), oxygen (02), methane and ethane. 

D. "Air pollution control equipment" means any device, equipment, process or 

combination thereof, the operation of which would limit, capture, reduce, confine, or otherwise 

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

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

sulfur recovery units, acid plants, baghouses, precipitators, scrubbers, cyclones, water sprays, 

enclosures, catalytic converters, and steam or water injection. 

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

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

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

issuance but have future-effective compliance dates)[-:-1. 

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

implementation plan approved by US EPA, or promulgated by US EPA through rulemaking, 

under title I of the Federal Act to implement the relevant requirements of the Federal Act, 

including any revisions to that plan promulgated in 40 CFR, Part 52[~1. 

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

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

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

pertinent[~].,_ 

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

including section 111(d)[~].:. 

(4) Any standard or other requirement under section 112 ofthe Federal Act, 

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

Act[;].:. 

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

the Federal Act or the regulations promulgated thereunder[;].,_ 

20.2.70 NMAC Proposed Revisions 

NMED EXHIBIT 

C-1 Page I of 18 
(6) Any requirements established pursuant to section 504(b) or section 114(a)(3) 

of the Federal Act[-;-]~ 

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

section 129 of the Federal Act[-;-].:. 

(8) Any standard or other requirement for consumer and commercial products 

under section 183(e) of the Federal Act[-;-L 

(9) Any standard or other requirement for tank vessels under section 183(f) of the 

Federal Act[-;-L 

(10) Any standard or other requirement of the regulations promulgated to protect 

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

that such requirements need not be contained in a title V permit[-;-].o 

(11) Any national ambient air quality standard[-;-l. 

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

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

Federal Act[-;--arull. 

(13) Any regulation adopted by the Board pursuant to the New Mexico Air Quality 

Control Act, section 74-2-S(B) NMSA 1978. 

F. "CFR" means the Code of Federal Regulations. 

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

public participation or affected program review. 

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

or the [l;)]gepartment, that limits the quantity, rate or concentration, or combination thereof, of 

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

to the operation or maintenance of a source to assure continuous reduction. 

I. "Emissions allowable under the permit" means: 

(1) any state or federally enforceable permit term or condition that establishes an 

emission limit (including a work practice standard) requested by the applicant and approved by 

the [9]gepartment or determined at issuance or renewal to be required by an applicable 

requirement; or 

(2) any federally enforceable emissions cap that the permittee has assumed to 

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

J. "Emissions unit" means any part or activity of a stationary source that emits or 

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

112(b) ofthe Federal Act. This term is not meant to alter or affect the definition of the term 

"unit" for purposes of title IV of the Federal Act. 

K. Federally enforceable" means all limitations and conditions which are 

enforceable by the Administrator, including those requirements developed pursuant to 40 CFR 

Parts 60 and 61, requirements within the New Mexico State Implementation Plan, and any permit 

requirements established pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 

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

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

[9]gepartment that has met all review requirements of20.2.70.400 NMAC- 20.2.70.499 

NMAC. 

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

through a stack, chimney, vent, or other functionally-equivalent opening. 

20.2.70 NMAC Proposed Revisions Page 2 of 18 
N. "General permit" means an operating permit that meets the requirements of 

20.2.70.303 NMAC. 

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

a hazardous air pollutant pursuant to the Federal Act. 

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

[G]4epartment and approved by the Administrator as insignificant on the basis of size, emissions 

or production rate. 

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

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

of the same person(s)) in which all of the pollutant emitting activities at such source belong to 

the same Major Group (i.e., all have the same two-digit code), as described in the Standard 

Industrial Classification Manual, 1987, and that is described in paragraphs (1), (2) or (3) below. 

(1) A major source under section 112 of the Federal Act, which is defined as the 

following. [-;-] 

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

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

the potential to emit, in the aggregate, 10 tons or more per year of any hazardous air pollutant 

which has been listed pursuant to section 112 (b) of the Federal Act, 25 or more tons per year of 

any combination of such hazardous air pollutants (including any major source of fugitive 

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

quantity as the Administrator may establish by rule. Notwithstanding the preceding sentence, 

hazardous emissions from any oil or gas exploration or production well (with its associated 

equipment) and hazardous emissions from any pipeline compressor or pump station shall not be 

aggregated with hazardous emissions from other similar units, whether or not such units are in a 

contiguous area or under common control, to determine whether such units or stations are major 

sources. 

(b) For radionuclides, "major source" shall have the meaning specified by 

the Administrator by rule. 

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

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

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

fugitive emissions of a stationary source shall not be considered in determining whether it is a 

major stationary source for the purposes of this paragraph, unless the source belongs to one of 

the following categories of stationary sources,_[-;-] 

(a) Coal cleaning plants (with thermal dryers)[t] 

(b) Kraft pulp mills[t] 

(c) Portland cement plants[t] 

(d) Primary zinc smelters[~] 

(e) Iron and steel mills[~] 

(f) Primary aluminum ore reduction plants[~] 

(g) Primary copper smelters[~] 

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

per day[t] 

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

(j) Petroleum refineries[t] 

(k) Lime plants[t] 

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

(m) Coke oven batteries[~] 

(n) Sulfur recovery plants[~] 

(o) Carbon black plants (furnace process)[~] 

(p) Primary lead smelters[~] 

( q) Fuel conversion plant[~] 

(r) Sintering plants[t] 

(s) Secondary metal production plants[;] 

(t) Chemical process plants[;] 

(u) Fossil-fuel boilers (or combination thereof) totaling more than 250 

million British thermal units per hour heat input[;] 

(v) Petroleum storage and transfer units with a total storage capacity 

exceeding 300,000 barrels[;] 

(w) Taconite ore processing plants[;] 

(x) Glass fiber processing plants[t] 

(y) Charcoal production plants[;] 

(z) Fossil fuel-fired steam electric plants of more than 250 million British 

thermal units per hour heat input[;] 

(aa) Any other stationary source category, which as of August 7, 1980 is 

being regulated under section 111 or 112 of the Federal Act. 

(3) A major stationary source as defined in part D oftitle I ofthe Federal Act, 

including: 

(a) [¥]for ozone non-attainment areas, sources with the potential to emit 1 00 

tons or more per year of volatile organic compounds or nitrogen oxides in areas classified as 

"marginal" or "moderate," 50 tons or more per year in areas classified as "serious," 25 tons or 

more per year in areas classified as "severe," and 10 tons or more per year in areas classified as 

"extreme"; except that the references in this paragraph to 100, 50, 25, and 10 tons per year of 

nitrogen oxides shall not apply with respect to any source for which the Administrator has made 

a finding, under section 182(f)(1) or (2) ofthe Federal Act, that requirements under section 

182(f) of the Federal Act do not apply; 

(b) [¥]for ozone transport regions established pursuant to section 184 of the 

Federal Act, sources with the potential to emit 50 tons or more per year of volatile organic 

compounds; 

(c) [¥]for carbon monoxide non-attainment areas (1) that are classified as 

"serious," and (2) in which stationary sources contribute significantly to carbon monoxide levels 

as determined under rules issued by the Administrator, sources with the potential to emit 50 tons 

or more per year of carbon monoxide; and 

(d) [¥]for particulate matter (PM 1 0) non-attainment areas classified as 

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

R. "Operating [P.]Qermit" or "permit" (unless the context suggests otherwise) 

means any permit or group of permits covering a source that is issued, renewed, modified or 

revised pursuant to this Part. 

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

a facility. 

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

20.2.70 NMAC Proposed Revisions Page 4 of 18 
U. "Part" means an air quality control regulation under Title 20, Chapter 2 of the 

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

V. "Part 70 source" means any source subject to the permitting requirements ofthis 

Part, as provided in 20.2.70.200 NMAC- 20.2.70.299 NMAC. 

W. "Permit modification" means a revision to an operating permit that meets the 

requirements of significant perrriit modifications, minor permit modifications, or administrative 

permit amendments, as defined in 20.2.70.404 NMAC. 

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

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

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

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

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

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

that must be removed prior to the application of a lifting or pulling force for the purpose of 

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

plants and concrete batch plants which meet this criteria. 

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

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

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

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

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

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

AA. "Proposed permit" means the version of a permit that the [D]gepartment 

proposes to issue and forwards to the Administrator for review in compliance with 20.2.70.402 

NMAC. 

AB. "Regulated air pollutant" means the following: 

(1) Nitrogen oxides, total suspended particulate matter, or any volatile organic 

compounds; 

(2) Any pollutant for which a national ambient air quality standard has been 

promulgated; 

(3) Any pollutant that is subject to any standard promulgated under section 111 of 

the Federal Act; 

(4) Any Class I or II substance subject to any standard promulgated under or 

established by title VI of the Federal Act; or 

(5) Any pollutant subject to a standard promulgated under section 112 or any other 

requirements established under section 112 ofthe Federal Act, including sections 112(g), G), and 

(r), including the following; 

(a) any pollutant subject to requirements under section 1120) of the Federal 

Act. If the Administrator fails to promulgate a standard by the date established pursuant to 

section 112(e) of the Federal Act, any pollutant for which a subject source would be a major 

shall be considered to be regulated on the date 18 months after the applicable date established 

pursuant to section 112(e) ofthe Federal Act; and 

(b) any pollutant for which the requirements of section 112(g)(2) of the 

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

112(g)(2) requirement. 

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

20.2.70 NMAC Proposed Revisions Page 5 of 18 
AD. "Responsible official" means one ofthe following: 

(1) For a corporation: a president, secretary, treasurer, or vice-president of the 

corporation in charge of a principal business function, or any other person who performs similar 

policy or decision-making functions for the corporation, or a duly authorized representative of 

such person if the representative is responsible for the overall operation of one or more 

manufacturing, production, or operating facilities applying for or subject to a permit and either a) 

the facilities employ more than 250 persons or have gross annual sales or expenditures exceeding 

$25 million (in second quarter 1980 dollars), orb) the delegation of authority to such 

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

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

respectively. 

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

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

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

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

US EPA). 

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

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

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

other purposes under 40 CFR, Part 70. 

AE. "Section 502(b)(10) changes" are changes that contravene an express permit 

term. Such changes do not include changes that would violate applicable requirements or 

contravene permit terms and conditions that are monitoring (including test methods), 

recordkeeping, reporting, or compliance certification requirements. 

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

equipment, process equipment or process for any purpose. 

AG. "Solid waste incineration unit" means a distinct operating unit of any facility 

which combusts any solid waste material from commercial or industrial establishments or the 

general public (including single and multiple residences, hotels, and motels). The term "solid 

waste incineration unit" does not include: 

(1) [I]!ncinerators or other units required to have a permit under section 3005 of 

the federal Solid Waste Disposal Act; 

(2) [M]materials recovery facilities (including primary or secondary smelters) 

which combust waste for the primary purpose of recovering metals; 

(3) [Q]gualifying small power production facilities, as defined in section 3(17)(C) 

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

defined in section 3(18)(B) ofthe Federal Power Act (16 U.S.C. 796(18)(B)), which bum 

homogeneous waste (such as units which bum tires or used oil, but not including refuse-derived 

fuel) for the production of electric energy or in the case of qualifying cogeneration facilities 

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

useful energy (such as heat) which are used for industrial, commercial, heating or cooling 

purposes; or 

( 4) [A ]f!ir curtain incinerators, provided that such incinerators only bum wood 

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

limitations established by the Administrator by rule. 

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

equipment, process equipment or process for any purpose. 

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

installation. or any combination thereof that emits or may emit any regulated air pollutant or any 

pollutant listed under section 112(b) of the Federal Act. 

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

partner of, the applicant or permittee. 

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

period of less than one year, after which it will be dismantled and removed from its current site 

or relocated to a new site. A temporary source may be semi-permanent, which means that is 

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

well head compressors which meet this criteria. 

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

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

preconstruction regulations promulgated under Parts C and D of the Federal Act. 

20.2.70.201 REQUIREMENT FOR A PERMIT: 

A. A Part 70 source may operate after the time that it is required to submit a timely 

and complete application under this Part only if: 

(1) the source is in compliance with an operating permit issued by the Department 

or EPA; or 

(2) a timely permit (including permit renewal) application has been submitted 

consistent with 20.2.70.300 NMAC. The ability to operate under these circumstances shall cease 

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

additional information identified as being needed to process the application. 

B. Revocation or termination of a pe1mit by the Department terminates the 

permittee's right to operate. 

C. The submittal of a complete operating permit application shall not protect any 

source from any applicable requirement, including any requirement that the source have a 

preconstruction permit under title I of the Federal Act or state regulations. 

D, Requirement for permit under 20.2.72 NMAC. 

(1) Part 70 sources that have an operating permit and do not have a permit issued 

under 20.2.72 NMAC or 20.2.74 NMAC shall submit a complete application for a permit under 

20.2. 72 NMAC within 180 days of [EFFECTIVE DATE OF THIS SUBSECTION- xx/xx/06]. 

The department may extend this deadline on a case-by-case basis based on a showing of good 

cause. 

(2) Part 70 sources that do not have an operating permit or a permit under 20.2. 72 

NMAC upon the effective date of this subsection shall submit an application for a permit under 

20.2. 72 NMAC within 60 days after submittal of an application for an operating permit. 

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

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

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

conditions in their operating permit to ensure compliance with these standards. 

20.2.70.300 PERlVIIT APPLICATIONS: 

20.2.70 NMAC Proposed Revisions Page 7 of 18 · 
A. Duty to apply[:-]!. For each Part 70 source, the owner or operator shall submit a 

timely and complete permit application in accordance with this Part. 

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

this Part is: 

(1) [¥]for first time applications, one that is submitted within twelve (12) months 

after the source commences operation as a Part 70 source, or as established in the transition 

schedule outlined in paragraph (4) of subsection B of20.2.70.300 NMAC; 

(2) [:F]for purposes of permit renewal, one that is submitted at least twelve (12) 

months prior to the date of permit expiration[;L 

(3) [F]for the acid rain portion of permit applications for initial Phase II acid rain 

sources under title IV of the Federal Act, by January 1, 1996 for sulfur dioxide, and by January 

1, 1998 for nitrogen oxides[;]~ 

(4) Transition schedule. /'L timely application for a Part 70 source which is in 

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

(a) :For sources, except natural gas processing plants, 1Nhich hwle been 

issued a permit, including a permit modification, pursuant to 20.2.72 NMAC, 20.2.74 N!-.4AC, or 

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

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

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

(b) For sources, except natural gas processing plants, '>vhich v,rere issued a 

permit, including a permit modification, pursuant to 20.2.72 NMAC, 20.2.74 NMAC, or 20.2.79 

NMAC prior to January 1, 1987, by June 19, 1995; 

(e) For all other sources, by December 19, 1995. 

C. Completeness of [A ].e,pplication[-:-L 

(1) To be deemed complete, an application must provide all information required 

pursuant to subsection D of20.2.70.300 NMAC, except that applications for permit 

modifications need supply such information only if it is related to the proposed change. 

(2) If, while processing an application, regardless of whether it has been 

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

is necessary to evaluate or take final action on that application, it may request such information 

in writing and set a reasonable deadline for a response. 

(3) Any applicant who fails to submit any relevant facts or who has submitted 

incorrect information in a permit application or in a supplemental submittal shall, upon becoming 

aware of such failure or incorrect submittal, promptly submit such supplementary facts or 

corrected information. In addition, an applicant shall provide further information as necessary to 

address any requirements that become applicable to the source after the date it filed a complete 

application but prior to release of a draft permit. 

( 4) The applicant's ability to operate without a permit, as set forth in paragraph (2) 

of subsection A of20.2.70.201 NMAC, shall be in effect from the date a timely application is 

submitted until the final permit is issued or disapproved, provided that the applicant adequately 

submits any requested additional information by the deadline specified by the [D].Qepartment. 

D. Content of [A]illJplication[-:L Any person seeking a permit under this Part shall do 

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

copies of the permit application, or more, as requested by the [D]f!epartment. An applicant may 

not omit information needed to determine the applicability of, or to impose, any applicable 

requirement, or to evaluate the fee amount required under 20.2.71 NMAC (Operating Permit 

20.2.70 NMAC Proposed Revisions Page 8 of 18 
Emission Fees). Fugitive emissions shall be included in the permit application in the same 

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

the list of sources contained in the definition of major source. All applications shall[-;-] meet the 

following requirements. 

(1) Be made on forms furnished by the [D].Qepartment, which for the acid rain 

portions of permit applications and compliance plans shall be on nationally-standardized forms 

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

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

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

operator of the source, any subsidiaries or parent companies, the company's state of 

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

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

agent(s) and the site contact(s) familiar with plant operations[~L · 

(3) State the date of the application[~L 

(4) Include a description of the source's processes and products (by Standard 

Industrial Classification Code) including any associated with alternative scenarios identified by 

the applicant, and a map, such as the 7.5 minute Topographic Quadrangle map published by the 

United States Geological Survey or the most detailed map available showing the exact location 

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

coordinates[~].:. 

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

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

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

defined in 20.2. 70.7 NMAC). This shall include: 

(a) [A]~ process flow sheet of all components of the facility which would be 

involved in routine operations and emissions; 

(b) [!]identification and description of all emissions points in sufficient 

detail to establish the basis for fees and applicability of requirements of the state and Federal 

Acts; 

(c) [B]~missions rates in tons per year, pounds per hour and in such terms as 

are necessary to establish compliance consistent with the applicable standard reference test 

method; 

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

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

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

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

monitoring devices or activities; · 

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

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

regulated pollutants; 

(g) [Afi]ifreguested by the department an operational plan defining the 

measures to be taken to mitigate source emissions during startups, shutdowns and emergencies; 

(h) [G]Qther relevant information as the [:9].Qepartment may reasonably 

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

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

20.2.70 NMAC Proposed Revisions Page 9 of 18 
(i) [F]for each alternative operating scenario identified by the applicant, all 

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

information determined to be necessary by the [f)]_Qepartment to define such alternative 

operating scenarios[~].:. 

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

source, their emissions, to the extent required by the [f)]_Qepartment, and any information 

necessary to determine applicable requirements[~].:. 

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

requirements, including: 

(a) [S]~ufficient information related to the emissions of regulated air 

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

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

determining compliance with each applicable requirement[~]_,_ 

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

requirements[~].:. 

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

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

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

NMAC (Operating Permit Emission Fees)[~l. 

[(10) For applications which are required under the transition schedule in 

paragraph (4) of subsection B of20.2.70.300 NM/\C, include a dispersion modeling analysis, 

using US EPA approved models and procedures, shovt'ing \\'hether emissions from the source 

vwuld cause air pollutant concentrations in excess of any national ambient air quality standard. 

Air pollutants which are not emitted in significant (as defined in 40 CFR 52.21 (b)(23)(i)) 

amounts during routine operations need not be modeled. 

(a) This requirement shall not apply to the following: 

(i) A Part 70 source issued a permit under 20.2.72 NA4AC, 20.2.74 

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

(ii) A Part 70 source subject to 20.2.14 NMP..C, 20.2.16 NMAC, 

20.2.19 NMAC, 20.2.31 NMAC, 20.2.32 NA4AC ifno physical or operational modifications that 

have resulted in increased particulate matter, sulfur dimcide, or nitrogen oxide emissions have 

occurred since the time modeling was performed for that facility as part of revisions to those 

regulations. 

(b) The Department may waive modeling 'vVith respect to ozone if the 

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

concentrations in excess of the national ambient air quality standard.] 

[fll)]f.!Q} Provide certification of compliance, including[.;.] all of the following. 

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

20.2.70.300 NMAC, of the source's compliance status for each applicable requirement. For 

national ambient air quality standards, certifications shall be based on the following. 

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

submitted with the application for a permit under 20.2.72 NMAC. 

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

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

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

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

20.2.70 NMAC Proposed Revisions Page 10 of 18 
(c) A statement that the source will continue to be in compliance with 

applicable requirements for which it is in compliance, and will, in a timely manner or at such 

schedule expressly required by the applicable requirement, meet additional applicable 

requirements that become effective during the permit termhL 

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

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

underlying applicable requirement or by the [f)]gepartment [-;-aru:!L 

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

monitoring and compliance certification requirements of the Federal Act. 

[~].(!!} For sources that are not in compliance with all applicable requirements 

at the time of permit application, provide a compliance plan that contains.;. all of the following. 

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

applicable requirements[~L 

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

such requirements for which it is not in compliance(~]~ 

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

actions with milestones, leading to compliance with such applicable requirements. The schedule 

of compliance shall be at least as stringent as that contained in any consent decree or 

administrative order to which the source is subject, and the obligations of any consent decree or 

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

such schedule of compliance shall be supplemental to, and shall not prohibit the [f)]gepartment 

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

which it is based[~L 

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

frequently than every six (6) months[-;-aru:!L 

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

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

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

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

with the acid rain emissions limitations. 

E. Certification[-:-L Any document, including any application form, report, or 

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

responsible official of truth, accuracy, and completeness. This certification and any other 

certification required under this Part shall state that, based on information and belief formed after 

reasonable inquiry, the statements and information in the document are true, accurate, and 

complete. 

20.2. 70.302 PERMIT CONTENT: 

A. Permit [G].£onditions[-:-L 

(1) The [f)]gepartment shall specify conditions upon a permit, including emission 

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

applicable requirements at the time of permit issuance or as specified in the approved schedule of 

compliance. The permit shall: 

(a) [F]for major sources, include all applicable requirements for all relevant 

emissions units in the major source. 

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

cause the source to be subject to this Part. 

(c) [&]~pecify and reference the origin of and authority for each term or 

condition, and identify any difference in form as compared to the applicable requirement upon 

which the term or condition is based; 

(d) [!]include a severability clause to ensure the continued validity of the 

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

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

[PJgepartment consistent with the fee schedule in 20.2.71 NMAC (Operating Permit Emission 

Fees); and 

(f) [F]for purposes of the permit shield, identify any requirement specifically 

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

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

(2) Each permit issued shall, additionally, include provisions stating [tlnw.-] the 

following. 

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

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

federally enforceable permit conditions constitutes a violation of the Federal Act[tl. 

(b) It shall not be a defense for a permittee in an enforcement action that it 

would have been necessary to halt or reduce the permitted activity in order to maintain 

compliance with the conditions of the permit[tl. 

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

reissued, or terminated for cause in accordance with 20.2.70.405 NMAC[tl. 

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

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

noncompliance shall not stay any permit condition[tL 

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

exclusive privilege[tL 

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

furnish any information that the [P]gepmtment may request in writing to determine whether 

cause exists for reopening and revising, revoking and reissuing, or termination of the permit or to 

determine compliance with the permit. Upon request, the permittee shall also furnish to the 

[P]gepartment copies of records required by the permit to be maintained. 

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

the application and approved by the [P]gepartment: 

(a) [&]~hall require that the permittee maintain a log at the permitted facility 

which documents, contemporaneously with any change from one operating scenario to another, 

the scenario under which the facility is operating; and 

(b) [&]~hall, for each such alternative scenario, meet all applicable 

requirements and the requirements of this Part. 

( 4) The [P]gepartment may impose conditions regulating emissions during startup 

and shutdown. 

(5) All permit terms and conditions which are required under the Federal Act or 

under any of its applicable requirements, including any provisions designed to limit a source's 

potential to emit, are enforceable by the Administrator and citizens under the Federal Act. The 

20.2.70 NMAC Proposed Revisions Page 12 of 18 
permit shall specifically designate as not being federally enforceable under the Federal Act any 

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

any of its applicable requirements. 

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

not relieve any person from civil or criminal liability for failure to comply with the provisions of 

the Air Quality Control Act, the Federal Act, federal regulations thereunder, any applicable 

regulations of the Board, and any other applicable law or regulation. 

(7) The [f) ]_department may inc! ude part or all of the contents of the application as 

terms and conditions of the permit or permit modification. The [f)]_department shall not apply 

permit terms and conditions upon emissions of regulated pollutants for which there are no 

applicable requirements, unless the source is major for that pollutant. 

(8) Fugitive emissions from a source shall be included in the operating permit in 

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

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

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

additionally: 

(a) [8]~tate that, where an applicable requirement of the Federal Act is more 

stringent than an applicable requirement of regulations promulgated under title IV of the Federal 

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

Administrator[~]: and 

(b) [G]~ontain a permit condition prohibiting emissions exceeding any 

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

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

increases in emissions that are authorized by allowances acquired pursuant to the acid rain 

program, provided that such increases do not require a permit modification under any other 

applicable requirement. No limit shall be placed on the number of allowances held by the acid 

rain source. The permittee may not use allowances as a defense to noncompliance with any 

other applicable requirement. Any such allowance shall be accounted for according to the 

procedures established in regulations promulgated under title IV of the Federal Act. 

B. Permit [f)]_duration[.;-].:. The [f)]_Qepartment shall issue operating permits for a 

fixed term of five (5) years. 

C. Monitoring[.;-]:. 

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

procedures or test methods, required to assure and verify compliance with the terms and 

conditions of the permit and applicable requirements, including any procedures and methods 

promulgated by the Administrator. 

(2) Where the applicable requirement does not require periodic testing or 

instrumental or noninstrumental monitoring (which may consist of recordkeeping designed to 

serve as monitoring), the permit shall require periodic monitoring sufficient to yield reliable data 

from the relevant time period that are representative of the source's compliance with the permit, 

as reported pursuant to subsection E of20.2.70.302 NMAC. Such monitoring requirements shall 

assure use of terms, test methods, units, averaging periods, and other statistical conventions 

consistent with the applicable requirement. 

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

maintenance, and, when appropriate, installation of monitoring equipment or methods. 

D. Recordkeeping[.;-1_ 

20.2.70 NMAC Proposed Revisions Page 13 of 18 
(1) The permit shall require recordkeeping sufficient to assure and verify 

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

measurements; 

measurement. 

(a) [+]!he date, place as defined in the permit, and time of sampling or 

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

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

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

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

{f) [+]!he operating conditions existing at the time of sampling or 

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

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

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

original strip-chart recordings for continuous monitoring instrumentation, and copies of all 

reports required by the permit. 

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

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

including[.;.] all ofthe following. 

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

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

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

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

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

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

requirements, including the date, time, duration and probable cause of such deviations, the 

quantity and pollutant type of excess emissions resulting from the deviation, and any corrective 

actions or preventive measures taken. Such reports shall include telephone, verbal or facsimile 

communication within twenty-four (24) hours of the start of the next business day and written 

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

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

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

compliance status with [all permit] terms and conditions contained in the permit [and all 

applicable requirements relevant to the source], including [those related to] emission limitations~ 

standards, or work practices. The reports shall be due to the [:9]gepartment within thirty (30) 

days of the end of the permittee's reporting period. Such compliance certifications shall be 

submitted to the Administrator as well as to the [D]gepartment and shall include: 

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

basis of the certification; 

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

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

(d) [+]!he method(s) used for determining the compliance status of the 

source, currently and during the reporting period identified in the permit; and 

(e) [S]~uch other facts as the [:9]gepartment may require to determine the 

compliance status of the source[-;--antll. 

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

determine the compliance status ofthe source. 

20.2.70 NMAC Proposed Revisions Page 14 of 18 
F. Portable and Temporary Sources[-:-1 The [&]gepartment may issue permits for 

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

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

conditions to assure that: 

(1) [+]1he source is installed at all locations in a manner conforming with the 

permit; 

(2) [+]!he source shall comply with all applicable requirements and all other 

provisions of this Part at all authorized locations; 

(3) [+]1he owner or operator shall notify the [&]gepartment in writing at least 

fifteen (15) calendar days in advance of each change in location; 

( 4) [N]gotification shall include a legal description of where the source is to be 

relocated and how long it will be located there; and 

(5) [B]~missions from the source shall not, at any location, result in or contribute 

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

under Part C oftitle I of the Federal Act. The [&]gepartment may require dispersion modeling to 

assure compliance at any location. 

G. Compliance[.;.].,_ To assure and verify compliance with the terms and conditions of 

the permit and with this Part, permits shall also[-:-] include all the following. 

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

required by law, the permittee shall allow authorized representatives of the [&]gepartment to 

perform the following: 

(a) [B]~nter upon the permittee's premises where a source is located or 

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

permit; 

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

conditions ofthe permit; 

(c) [I]inspect any facilities, equipment (including monitoring and air 

poliution control equipment), practices, or operations regulated or required under the permit; and 

(d) [S]~ample or monitor any substances or parameters for the purpose of 

assuring compliance with the permit or applicable requirements or as otherwise authorized by the 

Federal Act. 

(2) Require that sources required under paragraph (12) of subsection D of 

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

[&]gepartment at least semiannually, or more frequently if specified in the applicable 

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

schedule of compliance and requirements of paragraph (12) of subsection D of20.2. 70.300 

NMAC and shall contain: 

(a) [&]gates for achieving the activities, milestones, or compliance required 

in the schedule of compliance, and dates when such activities, milestones or compliance were 

achieved; and 

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

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

(3) Include such other provisions as the [&]gepartment may require. 

H. Operational Flexibility[ -:-1. 

(1) Section 502(b )(1 0) Changes 

20.2.70 NMAC Proposed Revisions Page 15 of 18 
(a) The permittee may make section 502(b)(10) changes, as defined in 

20.2. 70.7 NMAC, without applying for a permit modification, if those changes are not title I 

modifications and the changes do not cause the facility to exceed the emissions allowable under 

the permit (whether expressed as a rate of emissions or in terms of total emissions). 

(b) For each such change, the permittee shall provide written notification to 

the [:Q]gepartment and the Administrator at least seven (7) days in advance of the proposed 

changes. Such notification shall include a brief description of the change within the permitted 

facility, the date on which the change will occur, any change in emissions, and any permit term 

or condition that is no longer applicable as a result of the change. 

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

copy of the relevant permit. 

(d) If the written notification and the change qualify under this provision, 

the permittee is not required to comply with the permit terms and conditions it has identified that 

restrict the change. If the change does not qualify under this provision, the original terms of the 

permit remain fully enforceable. 

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

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

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

permitted facility solely for the purpose of complying with a federally enforceable emissions cap 

that is established in the permit in addition to any applicable requirements. Such terms and 

conditions shall include all terms and conditions required under 20.2. 70.302 NMAC to determine 

compliance. If applicable requirements apply to the requested emissions trading, permit 

conditions shall be issued only to the extent that the applicable requirements provide for trading 

such increases and decreases without a case-by-case approval. 

(b) The applicant shall include in the application proposed replicable 

procedures and permit terms that ensure the emissions trades are quantifiable and enforceable. 

The [:Q]gepartment shall not include in the emissions trading provisions any emissions units for 

which emissions are not quantifiable or for which there are no replicable procedures to enforce 

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

(c) For each such change, the permittee shall provide written notification to 

the [:Q]gepartment and the Administrator at least seven (7) days in advance of the proposed 

changes. Such notification shall state when the change will occur and shall describe the changes 

in emissions that will result and how these increases and decreases in emissions will comply with 

the terms and conditions of the permit. 

(d) The permittee and [:Q]gepartment shall attach each such notice to their 

copy of the relevant permit. 

I. Off-Permit Changes[.;-].:. 

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

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

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

violate any existing permit term or condition; 

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

Federal Act and are not title I modifications; 

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

20.2. 70.404 NMAC; and 

20.2.70 NMAC Proposed Revisions Page 16 of 18 
(d) [+]the permittee provides contemporaneous written notice to the 

[G].Qepartment and US EPA of each such change, except for changes that qualify as insignificant 

activities. Such written notice shall describe each such change, including the date, any change in 

emissions, pollutants emitted and any applicable requirement that would apply as a result of the 

change. 

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

result in emissions of a regulated air pollutant subject to an applicable requirement, but not 

otherwise regulated under the permit, and the emissions resulting from those changes. 

J. Permit Shield[:]_,_ 

(1) Except as provided in this Part, the [G]Qepartment shall expressly include in a 

Part 70 (20.2. 70 NMAC) permit a provision stating that compliance with the conditions of the 

permit shall be deemed compliance with any applicable requirements as of the date ofpermit 

issuance, provided that: 

(a) [SJ.~uch applicable requirements are included and are specifically 

identified in the permit; or 

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

permit modification, determines in writing that other requirements specifically identified are not 

applicable to the source, and the permit includes the determination or a concise summary thereof. 

(2) A Part 70 (20.2. 70 NMAC) permit that does not expressly state that a permit 

shield exists for a specific provision shall be presumed not to provide such a shield for that 

provision. 

(3) Nothing in this section or in any Part 70 (20.2. 70 NMAC) permit shall alter or 

affect the following: 

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

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

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

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

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

(c) [+)the applicable requirements of the acid rain program, consistent with 

section 408(a) of the Federal Act; or 

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

section 114 of the Federal Act, or the [G]Qepartment to obtain information subject to the New 

Mexico Air Quality Control Act, section 74-2-13 NMSA 1978. 

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

extended past the expiration date of the permit pursuant to subsection D of 20.2. 70.400 NMAC. 

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

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

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

scenario included pursuant to paragraph (3) of subsection A of20.2.70.302 NMAC. 

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

subsection A of20.2.70.404 NMAC, to minor permit modifications under subsection B of 

20.2.70.404 NMAC, to section 502(b)(10) changes under paragraph (1) of subsection H of 

20.2. 70.302 NMAC, or to permit terms or conditions for which notice has been given to reopen 

or revoke all or part under 20.2. 70.405 NMAC. 

20.2.70 NMAC Proposed Revisions Page 17 of 18 
20.2.70.304 EMERGENCY PROVISION[t]! 

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

unforeseeable events beyond the control of the permittee, including acts of God, which situation 

requires immediate corrective action to restore normal operation, and that causes the source to 

exceed a technology-based emission limitation under the permit due to unavoidable increases in 

emissions attributable to the emergency. An emergency shall not include noncompliance to the 

extent caused by improperly designed equipment, lack of preventive maintenance, or careless or 

improper operation. 

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

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

demonstrated through properly signed, contemporaneous operating logs, or other relevant 

evidence that: 

(1) An emergency occurred and that the permittee can identify the cause(s) of the 

emergency; 

(2) The permitted facility was at the time being properly operated; 

(3) During the period of the emergency the permittee took all reasonable steps to 

minimize levels of emissions that exceeded the emission standards or other requirements in the 

permit; and 

(4) The permittee fulfilled notification requirements under paragraph (2) of 

subsection E of 20.2.70.302 NMAC. This notice must contain a description of the emergency, 

any steps taken to mitigate emissions, and corrective actions taken. 

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

of an emergency has the burden of proof. 

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

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

20.2.7 N~1AC (EKcess Emissions during Malfunction, Startup, Shutdovm, or Scheduled 

Maintenance) for permit terms and conditions issued under 20.2.70 NMAC]. 

20.2.70 NMAC Proposed Revisions Page 18 of 18 
The Department proposes that the Board adopt the following revisions to 20.2.3 N:MACAmbient Air Quality Standards. 

20.2.3.9 LIMITATION OF APPLICABILITY TO 20.2.70 NMAC. The requirements 

ofthis part are not applicable requirements under 20.2.70 NMAC, as defined by that part. This 

section does not limit the applicability of this part to sources required to obtain a permit under 

20.2.72 NMAC, nor does it limit which terms and conditions of permits issued pursuant to 

20.2.72 NMAC are applicable requirements for permits issued pursuant to 20.2.70 NMAC. 

[20.2.3.9] 20.2.3.10 to 20.2.3.107 [RESERVED] 

NMED EXHIBIT 

C-2 
The Department proposes that the Board adopt the following revisions to 20.2.72 NMACConstruction Permits. 

20.2.72.216 NONATTAINMENT AREA REQUIREMENTS: 

A. The requirements of this section apply to: 

(1) A new source or modification of an existing source that [ :wffi.eh] will emit a 

regulated air contaminant such that the ambient impact of the contaminant would exceed the 

significant ambient concentration in 20.2.72.500 NMAC, Table 1, at any location that does not 

meet the New Mexico Ambient Air Quality Standard for the contaminant; [eF] 

(2) A new source or modification of an existing source that [ :wffi.eh] is not a major 

stationary source or major modification as defined in 20.2.79 NMAC and [:wffi.eh] that will emit 

a regulated air contaminant such that the ambient impact of the contaminant would exceed the 

significant ambient concentration in Table 1 at any location that does not meet the National 

Ambient Air Quality Standard for the contaminant["'"] ; or 

(3) An existing source that does not propose an increase in emissions and that will 

emit a regulated air contaminant such that the ambient impact ofthe contaminant would exceed 

the significant ambient concentration in 20.2.72.500 NMAC (Table 1) at any location that does 

not meet the national or New Mexico ambient air quality standard for the contaminant. 

B. A new source or modification of an existing source subject to this section shall 

offset the ambient impact of its emissions by: 

(1) Obtaining emission offsets for proposed emissions in an amount greater than 

one-to-one such that a net air quality benefit will occur; and 

(2) Ensuring emission offsets are quantifiable, enforceable, and permanent by 

meeting the following sections of20.2.79 NMAC: 

(a) 20.2.79.114 NMAC (Emission Offset Baseline) 

(b) 20.2.79.115 NMAC (Emission Offsets) 

(c) 20.2.79.117 NMAC (Air Quality Benefit) 

C. An existing source that is subject to this section shall demonstrate a net air quality 

benefit of at least a 20 percent reduction in ambient impact for each applicable contaminant. The 

20 percent reduction shall be calculated as the projected source impact subtracted from the 

existing source impact divided by the existing source impact. The net air quality benefit must 

also meet the requirements of20.2.79.117 NMAC (Air Quality Benefit). 

NMED EXHIBIT 

C-3 
NMED'S NOTICE OF FILING EXHIBITS 

The New Mexico Environment Department ("NMED") hereby gives notice that it filed 

its exhibits for the hearing in this matter, scheduled for August 1, 2006. 

Respectfully submitted, 

NEW MEXICO ENVIRONMENT DEPARTMENT 

Tannis L. Fox 

Deputy General Counsel 

Office of General Counsel 

P.O. Box 26110 

Santa Fe, New Mexico 87504 

(505) 827-1603 

Attorney for NMED 

Certificate of Service 

I certify that a copy of the foregoing pleading was served by mail on July 20, 2006 on 

Zachary Shandler, Assistant Attorney General, Office of the Attorney General, P.O. Box 1508, 

Santa Fe, NewMexico 87504-1508. 

lc;?hJ< 

Tannis L. Fox 
/"""-<.,. 

I,· --~~~'\ 

STATE OF NEW MEXICO)\' '·! ... : .. 

ENVIRONMENTAL IMPROVEME.NT BOARD 

IN THE MATTER OF THE PETITION 

FOR PUBLIC HEARING TO CONSIDER 

PROPOSED AMENDMENTS TO 

20.2. 70 NMAC, AIR QUALITY RULES, 

OPERATING PERMITS 

NMED EXHIBIT INDEX 

1. Resume of Richard Goodyear 

2. Direct Testimony of Richard Goodyear 

3. A. Proposed Amendments 20.2.70 NMAC 

3. B. Proposed Amendments 20.2.3.9 NMAC 

3. c. Proposed Amendments 20.2.72.216 NMAC 

4. Public Participation Documentation 

5. Affidavits of Publication 

No. EIB 05-12 (R) ·.' 
STATE OF NEW MEXICO 

ENVIRONMENTAL IMPROVEMENT BOARD 

IN THE MATTER OF THE PE"riTION 

FOR PUBLIC HEARING TO CONSIDER 

PROPOSED AMENDMENTS TO 

No. EIB 05-12 (R) 

20.2. 70 NMAC, AIR QUALITY RULES, 

OPERATING PERMITS 

PLEADING INDEX 

No. Date By Title 

1. 08/22/05 Hearing Notice of Docketing 

Administrator 

2; 04/17/06 Air Quality Bureau Revised Petition for Public Hearing 

3. 07/07/06 NMED Statement of Intent to Present Technical Evidence 

4. 07/20/06 NMED Notice of Filing of Exhibits; Exhibits 

5. 

6. 

7. 

8. 

9 

10. 

11. 

12. 

13. 

14. 

15. 

16. 

17. 

18. 

19. 

20. 

21. 

22. 

23. 

24. 

25. 

26. 

27. 

28. 

29. 

30. 

31. 

32. 
RICHARD GOODYEAR 

TITLE: 

Engineering Manager (Admin!ops) 

Registered professional engineer in NM 

EDUCATION: 

B.S., United States Military Academy, 1970 

M.S., Mechanical Engineering, Iowa State University, 1975 

EXPERIENCE (May 06): 

Air Permitting Experience with NMED/AQB: 13.8 years 

Total Environmental Experience: 17.8 years 

Total Technical Experience: 34.8 years 

Total Managerial Experience: 27.3 years 

TECHNICAL EXPERIENCE: 

Environmental 

• 1987- 1991: Planned, organized, and directed the environmental program of a military 

community - to include compliance with federal, state, and local laws on solid waste, 

radon, asbestos, hazardous waste, water quality, sewage treatment, and underground 

storage tanks. 

• 1992 - 1993: Processed construction permit applications for the state of New Mexico. 

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

ofNew Mexico. 

• 1996- present: Directs all air permitting programs for the state of New Mexico. 

Military 

1970 - 1991: Troop unit experience included positions of platoon leader and commander at 

engineer company level, and personnel officer, logistics officer, equipment maintenance officer, 

and executive officer at engineer battalion level. Other assignments included deputy project 

manager for research and development of a subsystem of a military rocket, assistant professor of 

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

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

TECHNICAL TRAINING 

EPA 413 - Control of Particulate Emissions 

EPA 415 - Control of Gaseous Emission 

EPA 423 - Dispersion of Air Pollution- Model Applications 

EPA 427 - Combustion Evaluation 

EPA 461 - Intermediate Permitting 

EPA 454- Effective Permit Writing NMED EXHIBIT 

#1 
EPA 400 - Introduction to Air Taxies (SI) 

Stress Management and Effective Communication Skills, 1997 

Dealing with Conflict and Negativity in the Workplace, 1997 

How to Deal with Employee Attitude Problems, 1998 

Communication and Conflict Management, 1998 

SFCC Management Development Program, 1998 

NMED Legal Training/Documentation, 1999 

Systematic Development of Informed Consent, 1999 

The Public Servant Manager, 2000 

7 Habits of Highly Successful People, 2000 

Management Conference, 2000 

Improving Teamwork, 2001 

Conflict Management, 2001 

Emotional Intelligence, 2001 

Recruiting and Interviewing Skills, 2001 

Organizational Courage in State Government: A Practical Guide for Documenting Discipline, 

2001 

New Mexico Public Servant Leadership Program, 2001 

Woodstock Institute for Negotiation - Negotiating, Collaborating, and Leading m Today's 

World, 2001 

Managing Organizational Performance, 2002 

SFCC Management Development Program, 2006 

Public Sector Employment Law for Managers and Supervisors, 2006 
STATE OF NEW MEXICO 

E~RONMENTALIMPROVEMENTBOARD 

IN THE MATTER OF THE PETITION 

FOR PUBLIC HEARING TO CONSIDER 

PROPOSED AMENDMENTS TO 

20.2.70 NMAC, AIR QUALITY RULES 

OPERATING PERMITS 

No. EIB OS-12(R) 

DIRECT TESTIMONY OF RICHARD GOODYEAR, P.E. 

I. INTRODUCTION 

The New Mexico Environment Department ("Department") comes before the 

Environmental Improvement Board ("EIB") to request changes to several Air Quality Control 

Regulations. The Department's major proposals are: 

1. The Department proposes to clarify that the New Mexico Ambient Air Quality 

Standards ("NMAAQS'') are applied to major sources under 20.2.72 NMAC- Construction 

Permits and are implemented in the operating permit as part of the incorporated construction 

permit. 

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

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

3. The Department proposes to allow discretion in requiring applicants to submit 

operational plans for startup and shutdown so that the plans that are submitted with Title V 

applications are appropriate and meaningful. 

4. Finally, the Department proposes to change the section on emergency operation in 

the Title V rule. 

The Department's proposals concern the EIB' s implementing Title V of the federal Clean 

Air Act ("CAA''), and two regulations that are part of the New Mexico State Implementation 

Plan ("SIP")- the construction permits rule (20.2. 72 NMAC) and the ambient air quality 

DIRECT TESTIMONY- PAGE 1 

NMED EXHIBIT 

#2 
standards rule (20.2.3 NMAC). These SIP rules have been in place since 1972 and 1970 

respectively, and have been revised over the years. Title V was adopted as part of the 1990 CAA 

Amendments. It was intended to consolidate into a single comprehensive enforceable document, 

called the "operating permit", all applicable requirements for "major sources". Under Title V, a 

source is considered to be "major" if it has the potential to emit more than one hundred (1 00) 

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

monoxide ("CO"), or particulate matter ("PM"); or more than ten (1 0) tons per year of a 

hazardous air pollutant ("HAP"); or twenty five (25) tons per year of all hazardous air pollutants. 

In 1992, the U.S. Environmental Protection Agency ("EPA") adopted regulations establishing the 

minimum requirements for state Title V programs. In 1993, the EIB adopted regulations for 

New Mexico's Title V program. See 20.2.70 NMAC- Operating Permits (formerly Air Quality 

Control Regulation 770 ("AQCR 770")). In 1994, the EPA granted interim approval ofNew 

Mexico's Title V program and, in 1996, it granted final and full approval. 

A significant issue in this hearing concerns the applicability of the NAAQS and 

NMAAQS to major sources subject to New Mexico's Title V program. The NAAQS and 

NMAAQS are designed to ensure clean and healthy air for the citizens and environment of New 

Mexico. They are set to prevent pollutant levels in ambient air that could affect the health of 

sensitive populations such as children, the elderly, and the infirm, cause damage to the 

environment including wildlife, crops, and building materials, or create haze that obscures 

visibility across our scenic state. The EPA has adopted NAAQS for NOx, SOx, PM, CO, lead, 

and ozone. The EIB has adopted NMAAQS for NOx, SOx, and CO, as well as total suspended 

particulates ("TSP"), hydrogen sulfide ("H2S"), and total reduced sulfur ("TRS"). The 

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

DIRECT TESTIMONY - PAGE 2 
theNAAQS. 

One of the Department's most important functions is to ensure compliance with the 

NAAQS and NMAAQS. By ensuring compliance with these standards, the Department prevents 

health and welfare impacts from large industrial facilities, prevents facilities that produce 

excessive dust like rock crushers and asphalt plants from locating nearer to residences and 

recreational areas, controls the emission of dangerous pollutants like H2S, which smells bad and 

is deadly in high concentrations, and minimizes environmental impacts like acid rain and haze. 

The Department ensures compliance with the NAAQS and NMAAQS in two ways. 

First, the Department operates a system of air quality monitors. However, it is expensive to 

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

pollutants to ensure compliance throughout the state. Therefore, the Department relies on air 

quality modeling, like the EPA and all of the states, to ensure that pollution sources comply with 

the NAAQS and NMAAQS. Modeling is particularly useful for predicting air quality impacts 

from pollution sources, especially in the complex terrain ofNew Mexico. 

Most pollution sources in New Mexico comply with the NAAQS and NMAAQS. The 

construction permit regulation, 20.2.72 NMAC, requires all new sources to demonstrate 

compliance with the NAAQS and NMAAQS before commencing construction (20.2.72.200.A.l 

NMAC). However, some sources were existing when the EIB adopted the construction permit 

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

made a modification (20.2. 72.200.A.2 NMAC). The regulation defines "modification" as a 

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

potential emission rate of a regulated pollutant or the emission of a regulated pollutant not 

previously emitted by the source (20.2.72.7.P NMAC). In some cases, these existing sources did 

DIRECT TESTIMONY- PAGE 3 
not comply with the NAAQS and NMAAQS. When these sources make a modification, the 

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

long as they offset their impact on the applicable standard (20.2.72.208.D NMAC). 

Since the EIB adopted these requirements in 1972, many existing sources that did not 

comply with the NAAQS and NMAAQS have made modifications. Most of these sources now 

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

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

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

never reviewed under the co~struction permit regulation, and some of them continue to exceed 

the NMAAQS and have never complied with the offset provision. Of this last category of 

sources, some are "major" under Title V. 

For all major sources, regardless of their date of construction, the operating permit 

regulation currently requires compliance with the NAAQS and NMAAQS. However, the 

regulation does not require all major sources to conduct air dispersion modeling to.demonstrate 

compliance with the NMAAQS. As a result, some major sources that were never reviewed 

under the construction permit regulation, because they existed before the construction permit 

regulation and were never modified, were able to avoid the obligation to demonstrate compliance 

with the NMAAQS under the operating permit regulation. 1 

This loophole was not exploited by all major sources in this category. Some of them voluntarily 

conducted air dispersion modeling and reduced emissions to comply with the NMAAQS. Others 

have done the same to settle enforcement actions for unrelated air quality violations. Eight (8) 

1 The requirement for air dispersion modeling differed for the NAAQS and NMAAQS, and all major sources have 

complied with the requirement for the NAAQS. 

DIRECT TESTIMONY- PAGE 4 
major sources in their current configuration have not conducted air dispersion modeling for 

NMAAQS.2 

The Department believes that it is important to hold these sources accountable for their 

pollution by first determining whether they are causing an exceedance of the state standards and 

by then requiring corrective actions to comply with the NMAAQS, such as raising stack heights, 

taking enforceable limitations on hours of operation, or replacing old compressor engines. 

Since 1997, the Department has worked with Title V sources to obtain voluntary 

compliance with the NMAAQS. Over the years, the Department met numerous times with Title 

V sources, including at least four (4) public meetings (Jan 8, 2001, Oct 8, 2002, Sep 21, 2004, 

July 6, 2006), to hear and respond to their concerns. In addition to holding public meetings, the . 

Department met with numerous stakeholders, including industry and public representatives, on 

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

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

final public meeting on this issue in Santa Fe on July 6, 2006, to discuss the proposed regulatory 

changes with the public. Industry, environmental and public members were invited. Seven 

industry representatives attended this meeting. The Department revised its proposal for Part 70 

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

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

preempt the Department from enforcing the NMAAQS by petitioning the EIB to delete the 

NMAAQS from the applicable requirement definition. Some of these sources also appealed 

Title V permits that identified the NMAAQS as an applicable requirement or that required 

2 The owners and sources include: Transwestem!Roswell Compressor Station, Transwestem/Thoreau Compressor 

Station; El Paso Electric/Rio Grande Station; HLBrown!Bluitt Gas Plant; Frontier/ Lusk Compressor Station; 

Versado/Buckeye Compressor Station; Versado/Eunice North Compressor Station; Versado/Saunders Gas Plant. 

DIRECT TESTIMONY - PAGE 5 
compliance plans. In response, the Department filed its own petition. Before a hearing could be 

held, the EIB stayed the petitions to allow the legislature an opportunity to resolve the dispute in 

its 2003 session. 

At the urging of these sources, the Department requested an appropriation from the 

legislature to study and update the NMAAQS. The NMAAQS were adopted by the EIB and 

approved by EPA in 1970. In 1995, the EIB repealed the NMAAQS that were obsolete. 

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

24-hour NOx NMAAQS, were too stringent and should be deleted. To address these arguments, 

the Department conducted an extensive literature survey, which found that more than one-half of 

the reported studies supported the 24-hour NOx NMAAQS.3 Nonetheless, because these sources 

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

the legislature for a more formal study. However, the legislature did not approve the request. 

Beginning in May 2003 and extending through April2005, El Paso Natural Gas 

Company ("EPNG") appealed to the EIB the issuance of eleven Title V permits, disputing the 

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

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

Some of the parties that submitted Notices oflntent to Present Technical Testimony opposing the 

Department included the New Mexico Oil and Gas Association ("NMOGA"), Phelps Dodge 

Corporation ("PD"), and Waste Management ofNew Mexico, Inc. ("WMI''). In late October 

2004, EPNG approached the Department requesting negotiations to settle its permit appeals. 

These negotiations commenced immediately and continued until the Department finalized 

settlement agreements with both EPNG and NMOGA in June 2005. Consequently, on June 6, 

2005, the Department withdrew its petition for hearing. The regulatory changes proposed by the 

3 The Department also found that nearly two-thirds of the reported studies supported the SOx NMAAQS. 

DIRECT TESTIMONY- PAGE 6 
Department in this rulemaking are based on the concepts or specifics of the settlement agreement 

with EPNG. 

II. PROPOSED REGULATORY CHANGES 

As mentioned, the Title V operating permits rule, Part 70, has been in place for over 10 

years. The Department's experience over that time has led us to believe that it is necessary to 

make some changes to reduce confusion and eliminate unnecessary requirements, as well as to 

remedy the ambient standards issue. Although there are numerous changes in the sections 

presented in our proposal, most of them are not substantive and serve only to comply with the 

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

discussion addresses the substantive changes. 

A. 20.2. 70.5 NMAC 

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

of a section" to 20.2. 70.5 NMAC. The new language conforms Part 70 with the EIB's other air 

quality regulations, and alerts the reader that certain sections may have been revised after the 

effective date of the regulation. 

B. Applicable requirements, 20.2.70.7.E NMAC 

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

20.2.70.7.E NMAC. The term clarifies the applicability of the NAAQS to Title V sources by 

negating a recent argument raised by some members of the regulated community. The 

introductory paragraph currently states that the applicable requirements include "all of the 

following, as they apply to emissions units at a Part 70 source." Some members ofthe regulated 

community have argued that this language precluded enforcement ofNAAQS because the 

NAAQS are applicable to Part 70 sources, not emission units. The argument contradicts the 

DIRECT TESTIMONY - PAGE 7 
principle of construction that a regulation should be harmonized with other parts of the 

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

unit" is defined as "any part or activity of a stationary source that emits or has the potential to 

emit any regulated air pollutant or any [HAP]" (20.2.70.7. J NMAC). The NAAQS apply to 

each such part or activity of a stationary source; if there is more than one part or activity, the 

NAAQS apply to the cumulative emissions. To eliminate any confusion on this issue and ensure 

enforcement of the NAAQS, the Department proposes to clarify that the listed requirements 

apply to Title V sources, as well as emission units, as applicable. 

C. Stationary source, 20.2. 70. 7.AI NMAC 

The Department proposes to clarify the definition of "stationary source" by adding the 

phrase "or any combination thereof' so that the definition reads that "'[s]tationary source' or 

'source' means any building, structure, facility, or installation, or any combination thereof that 

emits or may emit any regulated air pollutant or any pollutant listed under section 112(b) of the 

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

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

entities, such as national laboratories and military bases, are "stationary sources" subject to Part 

70, rather than the individual buildings, structures, facilities, and installations which comprise 

them. 

D. Requirement for a construction permit, 20.2.70.20l.D NMAC 

In light of recent settlements (including the EPNG settlement) that have or will result in a 

significant decrease of emissions from some of the largest, oldest, and least controlled industrial 

facilities in New Mexico, and the availability of other approaches for reducing emissions at the 

few remaining sources for which NMAAQS compliance may still be an issue, the Department 

DIRECT TESTIMONY- PAGE 8 
believes that the NMAAQS does not need to be an explicit, applicable requirement under the 

operating permit rule. We've retained the national ambient air quality standards as an applicable 

requirement for Title V sources because they are health-based. The changes we propose do not 

remove the NMAAQS requirement from the Title V sources, but only change the program in 

which it will apply. The NMAAQS would be applied to major sources under 20.2.72 NMACConstruction Permits and would be implemented in the operating permit as part of the 

incorporated construction permit. In order to achieve this goal we propose to make changes to 3 

different regulations: 

a. The Title V permitting rule, 20.2.70 NMAC at section 20l.D; 

b. The state ambient air quality standards rule, 20.2.3 NMAC at section 9; and 

c. The new source review permitting rule, 20.2.72 NMAC at section 216. 

1. Title V permitting rule, 20.2.70 NMAC at section 20l.D 

The addition of paragraph 201.D to 20.2. 70 NMAC will allow NMED to ensure that 

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

under either 20.2.72 NMAC (Construction Permits) or 20.2.74 NMAC (Permits- Prevention of 

Significant Deterioration (PSD)) comply with the requirements under 20.2.72 NMAC. 20.2.72 

NMAC requires a modeling demonstration to show whether emissions comply with New Mexico 

and National Ambient Air Quality Standards. Violation of these standards is addressed in 

section 216 of20.2.72 NMAC. The deadline of 180 days ensures that the landfills and the four 

grandfathered Title V sources act expeditiously. The provision for the Department to grant an 

extension to this deadline reflects the potential problems that a source may face in trying to 

determine how to achieve the required progress toward compliance and in the coordination that 

may be needed with equipment suppliers. Since May 1, 2006, when we submitted a revised 

DIRECT TESTIMONY- PAGE 9 
paragraph 20 l.D to the EIB, we have a better appreciation for the impact of this paragraph on 

landfills. New Mexico has 7landfills with Title V permits and o~e application in process.

4 All 

but one have modeled for state and federal standards, have shown compliance, and have 

conditions in their Title V permits to ensure compliance. For the one exception (Clovis), the 

Department agreed that its emissions were so low that no modeling was necessary. There is no 

reason to have these sources obtain a construction permit, which would be required by the 

previous section 20.2. 70.20 l.D of our proposal. Hence, the Department proposes the additional 

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

In new section 20 l.D(l ), the first sentence was in our previous proposal and can only 

apply to sources that already have a Title V permit. However, there will be new landfill sources 

in the future as they get bigger and trip the threshold for applicability of Title V. Hence, 

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

For either category we want to exclude sources that want to model and show full compliance in 

the Title V program, because most ofthe landfills have already done so. Paragraph (3) 

establishes this exclusion and may also exclude any of the 8 other sources on the Department's 

list that can meet the exclusion requirement. For example, Versado told the Department that it 

was in the process of modeling for the company's sources on the list. If it shows compliance 

with all standards and request appropriate conditions in its Title V permits, there is no need to go 

through the construction permit process. The 60 day time in paragraph (2) allows an applicant to 

submit a Title V application and request the exclusion before an NSR permit would be due. 

2. State ambient air quality standards rule, 20.2.3 NMAC at section 9 

We need to add section 9 to 20.2.3 NMAC because 20.2 .. 70 NMAC and the federal rule 

4 Carlsbad/Sand Point Landfill, Clovis Regional Landfill, Northeast New Mexico Regional Landfifl, Otero/Lincoln 

landfill, Santa Fe Caja Del Rio Landfill, Camino Real Landfill, Rio Rancho Landfill, Sandoval County Landfill. 

DIRECT TESTIMONY- PAGE 10 
on which it was based, 40 CFR Part 70, require any regulation that is part of the State 

Implementation Plan to be an applicable requirement for a· Title V source. 20.2.3 NMAC is part 

of the New Mexico SIP. Section 9 removes the NMAAQS from the applicability requirements 

for all Title V sources, but the new language also ensures that sources that request a permit under 

the construction permit rule, 20.2.72 NMAC, know that these standards must continue to be 

addressed in their application. The new language also alerts Title V sources that when the 

NMAAQS result in conditions in their construction permit, those conditions are applicable 

requirements for the Title V permit. 

3. New source review permitting rule, 20.2.72 NMAC at section 216 

Section 216 of20.2.72 NMAC is changed to move sources that are causing violations 

toward compliance in a way that is consistent with past practice for minor sources. The changes 

in paragraphs A(l) and A(2) are clarifications of existing language and do not change the 

requirements. Paragraph A(3) is added to address the Title V sources that would need to apply 

for a construction permit. I want to note that since May 1, 2006, when we submitted this 

proposed paragraph to the EIB, we have added the words "or New Mexico" to include the state 

ambient air quality standards. Failure to include them was an oversight at the time. This - ' 

paragraph also addresses all other major and minor sources that may be causing a violation of 

standards, but do not submit an application that falls under A(1) or A(2), such as the remaining 

four Title V sources that do have construction permits but haven't modeled. It is the 

Department's intention that any such minor or major source would have to comply with the new 

paragraph C upon submittal of any permit revision under section 219 of20.2.72 NMAC. New 

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

of 20% reduction in ambient impact that for years has been expressed in our written modeling 

DIRECT TESTIMONY- PAGE 11 
guidance to permit applicants. Industry has accepted this concept in the past even though it was 

not a regulatory requirement. The formula for determining the projected source impact based on 

a reduction of20% and the reference to 20.2.79.117 NMAC serve to provide consistency among 

different sources and cases. 

E. Deletion of transition schedule, 20.2. 7 .300.B( 4) NMAC 

This section established the schedule to submit applications for existing sources subject 

to the Title V rule at the time of its approval. All such applications were submitted; 

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

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

One of the items that the current regulation requires as part of the Title V permit 

application is an operational plan. The Department proposes to revise 20.2. 70.300.D(5)(g) 

NMAC to allow discretion in requiring applicants to submit operational plans for startup, 

shutdown, and emergencies. The federal rule, 40 CFR Part 70, does not require the submittal of 

operational plans in applications. Title V sources should comply with the terms and conditions 

of their permits at all times, including during startup and shutdown, and should provide the same 

notification of violations as required at all other times. The Department has found that the range 

of facilities subject to the operational plan requirement is too broad to allow us to provide 

practical, generally applicable guidance. Also, it is very difficult to forecast and address all the 

possible circumstances that could cause a malfunction or emergency. As a result, the operational 

plans have varied widely in quality and enforceability. In practice, emissions may be minimized 

better by taking steps that are different from those set forth in a plan that may have been 

submitted several years ago. Operational plans for simple equipment, such as engines, don't 

appear to provide much value; whereas, such a plan for complex equipment such as sulfur 

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

G. . Content of permit application, 20.2. 7.300.D(10)(a) NMAC 

The original section D(lO) of20.2.7 NMAC established a one-time NAAQS modeling 

requirement for existing sources subject to the Title V rule at the time of its approval. 

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

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

sources should base any certification of compliance with the NAAQS for new and renewal Title 

V applications. A key element of the Title V program is the requirement for responsible officials 

to certify the truth, accuracy, and completeness of any document submitted to the permitting 

agency. Under the CAA, certification is a minimum requirement for state Title V programs. 

Accordingly, Part 70 requires major sources to certify their compliance with all applicable 

requirements. The Department's proposal clarifies that certifications of compliance for new 

sources will be based on the modeling submitted with a previous construction permit application. 

This approach is logical since any new emissions unit or source must obtain a construction 

permit and perform modeling. For sources renewing their permit, the Department proposes that 

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

permit. Again, this approach is logical since terms and conditions of construction permits are 

brought into the most current operating permit. This proposed change should only address the 

NAAQS since they are intended to be the only ambient standard that is directly applicable to a 

Title V source. Nevertheless, certification with permit conditions inherently reflects compliance 

with the NMAAQS, because some conditions of construction permits are created to ensure 

compliance with these standards. 

DIRECT TESTIMONY- PAGE 13 
H. Permit content, 20.2. 70.302E(3) Nl\1AC 

The Department proposes to revise section 302.E.3 of20.2.270 NMAC to clarify that 

annual compliance certifications are based on compliance with the terms and conditions in the 

permit. The changes in words here do not really change the requirement; they conform the 

language of the changed sentence to the federal language at 40 CFR § 70.6(c)(5). In 1993, the 

Department's deviation from the federal language created confusion about what applicable 

requirements the annual compliance certification actually addresses. Responsible officials have 

been reluctant to sign certifications of compliance that generically refer to all applicable 

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

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

requirements in the operating permit; if we make a mistake, we can re-open the permit at any 

time to fix the problem. Nor does this regulatory change allow a source to avoid accountability 

for complying with all applicable requirements if they are not identified in the permit. The 

Department would take enforcement action if a source failed to comply with an applicable 

requirement even if it was not listed in the permit. 

I. Emergency provision, 20.2. 70.304.D NMAC 

The Department proposes to revise this section to conform our rule to the federal rule 

language at 40 CFR § 70.6(g)(5). Currently, sources permitted under 20.2. 70 NMAC have some 

permit conditions that are subject to 20.2. 7 NMAC- Excess emissions during malfunction, 

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

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

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

permits rule, but 20.2.7 NMAC does not apply to any federal requirement found in the Code of 

DIRECT TESTIMONY- PAGE 14 
Federal Regulations ("CFR"), which contains its own provisions for dealing with violations of 

the CFR. When these federal and state applicable requirements are incorporated in an operating 

permit, they bring with them their O\Vn emergency and upset provisions. The operating permit 

rule does allow new conditions to be created to ensure compliance with these other requirements, 

if these requirements do not already include adequate monitoring provisions to ensure 

compliance. Yet, the existing language at section 304.D does not allow 20.2.7 NMAC to apply 

to these new conditions created under the authority of20.2.70 NMAC, resulting in confusion 

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

is no real benefit to having this distinction. With this revision, the rule will require Title V 

sources to report violations of the terms and conditions in their permits and claim affirmative 

defenses for such violations in a manner consistent with sources permitted under 20.2. 72 NMAC. 

III. IMPACT ON REGULATED COMMUNITY, PUBLIC AND NMED; EJ 

CONCERNS; AND IMPACT ON SMALL BUSINESS 

The EIB has indicated that it is interested in the impact of proposed regulations on the 

regulated community, the public and NMED resources. The amendments proposed by NMED 

would affect, as stated, eight sources, as far as NMED is aware. The sources would be required 

to conduct modeling for NMAAQS, which would be approximately $10,000 to $30,000 per 

source. If modeling demonstrated non-compliance with state standards, the sources would be 

required to install pollution control equipment to make progress toward achievement of the 

standards in accordance with 20.2.72 NMAC. NMED does not know whether any of these 

sources would be out of compliance with state standards and, if so, what type of pollution control 

equipment would need to be installed. Therefore, NMED cannot estimate costs for such 

equipment. It is important to note that other Title V sources have already been required to model 

for state standards and install pollution control equipment to satisfy the requirements of20.2.72 

DIRECT TESTIMONY- PAGE 15 
NMAC, if necessary. Therefore, requiring these eight sources to do the same "levels the playing 

field" and requires the eight sources to bear business costs that other sources already have borne. 

The impact to the public would be healthier, cleaner air, if any of the sources are out of 

compliance with state standards and must install pollution control equipment. Such actions 

would be particularly beneficial to the local communities in which the sources are located, which 

is mostly in the southeast part of the state. This part of the state is rural and has a relatively 

lower income level, raising environmental justice concerns. Therefore, any improved air quality 

. could have a positive impact with respect to environmental justice concerns. For example, El 

Paso Electric Company, one of the eight sources, is located in Sunland Park, which is located on 

the border, and which is a socioeconomically disadvantaged community with a large Hispanic 

population. If EL Paso Electric Company were required to reduce its emissions, this would have 

a health benefit for this community. 

NMED would be required to review the modeling for the eight sources, which requires 

between eight and 40 hours of staff time per modeling exercise. The NMED Air Quality Bureau 

is able to absorb thi~ work. If an NSR permit is required as a result, the permitting process 

would take more staff time, but it is difficult to estimate precisely how much time. The Air 

Quality Bureau, however, is confident that it can absorb this work. It is possible that if a permit 

is required, a hearing would be held, requiring more NMED resources and possibly EIB 

resources, although the likelihood of a hearing is not great because the sources would be required 

to reduce emissions if a permit is required. 

The Small Business Regulatory Relief Act requires agencies to submit proposed rules to 

the Small Business Regulatory Relief Commission ("Commission") if the proposed rules will 

have an adverse impact on small business. Small business is defined as businesses with less than 

DIRECT TESTIMONY- PAGE 16 
50 employees. As far as NMED is aware, none of the sources is a small business under that act. 

NMED has submitted a letter to the Commission stating that the proposed rules will not have an 

adverse impact on small business. 

The impact on the landfills will be negligible because all eight landfills affected except 

for one have already conducted modeling for state standards. The one landfill that did not 

conduct modeling did not do so because NMED found that its emissions were so low that it did 

not need to conduct modeling. 

IV. CONCLUSION 

After 12 years of experience with the operating permits program, the Department 

requests the EIB to adopt these proposals. By making these clarifications and changes, the EIB 

will provide a practical and reasonable way for major and minor sources to fulfill their obligation 

to comply with the NAAQS and NMAAQS. By focusing on a small group of sources that have 

been able to avoid provisions of our rules that would cause demonstration of compliance with 

ambient standards, the EIB can prevent or reduce emission impacts that are harmful to public 

health and the environment, and obtain emission reductions from some of the oldest and dirtiest 

facilities in New Mexico. Additionally, the EIB can make changes that will reduce the 

bureaucracy and potential for confusion in conducting the air permitting program without 

reducing the effectiveness of the program. 

DIRECT TESTIMONY- PAGE 17 
The Department proposes that the Board adopt the following revisions to 20.2. 70 1\.TJvl-'\C -

Operating Permits. 

20.2. 70.5 

section. 

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

20.2.70.7 DEFINITIONS: In addition to the terms defmed in 20.2.2 Nlvf..AC (Definitions), 

as used in this Part the following defmitions shall apply.[:-] 

A. "Acid rain source" has the meaning given to "affected source" in the regulations 

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

Federal Act. 

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

and Indian [+]:tribes and rPJ12ueblos, that are within 50 miles ofthe source. 

C. "Air pollutant" means ail air pollution agent or combination of such agents, 

. including any physical, chemical, biological, radioactive (including source material, special 

nuclear material, and byproduct material) substance or matter which is emitted into or otherwise 

enters the ambient air. Such term includes any precursors to the formation of any air pollutant, 

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

purpose for which the term "air pollutant" is used. This excludes water vapor, nitrogen (N2), 

carbon dioxide (C02), oxygen (02), methane and ethane. 

D. "Air pollution controi equipment" means any device, equipment, process or 

combination thereof, the operation of which would limit, capture, reduce, confine, or otherwise 

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

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

sulfur recovery units, acid plants, bagbouses, precipitators, scrubbers, cyclones, water sprays, 

enclosures, catalytic converters, and steam or water injection . 

. E. 11Applicable requirement 11 means all of the following, as they apply to a Part 70 

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

promulgated or appro'ved by the Board or US EPA through rulemaking at the time of permit 

issuance but have future-effective compliance dates)[-:-L 

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

implementation plan approved by US EPA, or promulgated by US EPA through rulemaking, 

under title I of the Federal Act to implement the relevant requirements of the Federal Act, 

including any revisions to that plan promulgated in 40 CPR, Part 52[;1 

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

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

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

pertinent[tl. 

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

including section 111 ( d)[t]~ 

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

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

Act[-;-1. 

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

the Federal Act or the regulations promulgated thereunder[-;-].:. 

20.2.70 NMAC Proposed Revisions NMED EXHIBIT 

#3A 

Page 1 of 18 
(6) Any requirements established pursuant to section 504(b) or section 114(a)(3) 

of the Federal Act[~]~ 

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

section 129 of the Federal Act[;].:. · 

(8) Any standard or other requirement for consumer and commercial products 

under section 183(e) ofthe Federal Act[;].:. 

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

Federal Act[;].:. 

(10) Any standard or other requirement of the regulations promulgated to protect 

stratospheric ozone under title VI of the Federal Ad, unless the Administrator has determined 

that such requirements need not be contained in a title V permit[~]~ 

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

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

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

Federal Act[;--a:rull 

(13) Any regulation adopted by the Board pursuant to the New Mexico Air Quality 

Control Act, section 74-2-S(B) NMSA 1978. 

F. "CFR" means the Code of Federal Regulations. 

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

public participation or affected program review. 

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

or the [&Jgepartment, that limits the quantity, rate or concentration, or combination thereof, of 

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

to the operation or maintenance of a source to assure continuous reduction. 

I. "Emissions allowable under the permit" means: 

(1) any state or federally enforceable permit term or condition that establishes an 

emission limit (including a work practice standard) requested by the applicant and approved by 

the [Ii].Qepartrnent or determined at issuance or renewal to be required by an applicable 

requirement; or 

(2) any federally enforceable emissions cap that the permittee has assumed to 

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

J. "Emissions unit" means any part or activity of a stationary source that emits or 

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

112(b) of the Federal Act. This term is not meant to alter or affect the defmition of the term 

"unit" for purposes oftitle IV ofthe Federal Act. 

K. Federally enforceable" means all limitations and conditions which are 

enforceable by the Administrator, including those reqUirements developed pursuant to 40 CPR 

Parts 60 and 61, requirements within the New Mexico State Implementation Plan, and any permit 

requirements established pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 

CFRPart 51, Subpart I, including 40 CPR 51.165 and 40 CFR 51.166. 

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

[If]gepartrnent that has met all review requirements of 20.2. 70.400 J\TMAC- 20.2. 70.499 

NMAC. 

M. · "Fugitive emissions" are those emissions which could not reasonably pass 

through a stack, chimney, vent, or other functionally-equivalent opening. 

20.2.70 NMAC Proposed Revisions Page 2 of 18 
N. nGeneral permit" means an operating permit that meets the requirements of 

20.2.70.303 NMAC. 

0. · "Hazardous air pollutant" means an air contaminant that has been classified as 

a hazardous air pollutant pursuant to the Federal Act. 

P. 11 Insignificant activities" means those activities which have been listed by the 

[P]gepartment and approved by the Administrator as insignificant on the basis of size, emissions 

or production rate. 

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

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

of the same person(s)) in which all of the pollutant emitting activities at such source belong to 

the same Major Group (i.e., all have the same two-digit code), as described in the Standard 

Industrial Classification Manual, 1987, and that is described in paragraphs (1 ), (2) or (3) below. 

(1) A major source under section 112 of the Federal Act, which is defined as the 

following. [c] · 

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

stationary sources located vvithin a contiguous area and under common control that emits or has 

the potential to emit, in the aggregate, 10 tons or more per year of any hazardous air pollutant 

which has been listed pursuant to section 112 (b) of the Federal Act, 25 or more tons per year of 

any combination of such hazardous air pollutants (including any major source of fugitive 

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

quantity as the Administrator may establish by rule. Notwithstanding the preceding sentence, 

hazardous emissions from any oil or gas exploration or production well (with its associated 

equipment) and hazardous emissions from any pipeline compressor or pump station shall not be 

aggregated with hazardous emissions from other similar units, whether or not such units are in a 

contiguous area or under common control, to determine whether such units or stations are major 

sources. 

(b) For radio nuclides, "major source" shall have the meaning specified by 

the Administrator by rule. 

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

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

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

fugitive emissions of a stationary source shall not be considered in determining whether it is a 

major stationary source for the purposes of this paragraph, unless the source belongs to one of 

the following categories of stationary sourcesJ.;.J 

(a) Coal cleaning plants (with thermal dryers)H 

(b) Kraft pulp rnills[t] 

(c) Portland cement plants[;-] 

(d) Primary zinc smelters[~] 

(e) Iron and steel mills[t] 

(f) Primary aluminum ore reduction plants[;] 

(g) Primary copper smelters[;] 

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

per day[~] 

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

G) Petroleum refmeries[;-] 

(k) Lime plants[;] 

20.2.70 NM.t...C Proposed Revisions Page 3 ofl8 
(I) Phosphate rock processing plants[~] 

(m) Coke oven batteries[;] 

(n) Sulfur recovery plants[;] 

(o) Carbon black plants (furnace process)[;] 

(p) Primary lead smelters H 

( q) Fuel conversion plant[;] 

(r) Sintering plants[~] 

(s) Secondary metal production plants[;] 

(t) Chemical process plants[;] 

(u) Fossil-fuel boilers (or combination thereof) totaling more than 250 

million British thermal units per hour heat input[;] 

(v) Petroleum storage and transfer units with a total storage capacity 

exceeding 300,000 barrels[;] 

(w) Taconite ore processing plants[;] 

(x) Glass fiber processing plants[;] 

(y) Charcoal production plants[;] 

(z) Fossil fuel-fired steam electric plants of more than 250 million British 

thermal units per hour heat input[;] 

. (aa) Any other stationary source category, which as of August 7, 1980 is 

being regulated under section 111 or 112 of the Federal Act. 

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

including: 

(a) [F]for ozone non-attainment areas, sources with the potential to emit 100 

tons or more per year of volatile organic compounds or nitrogen oxides in areas classified as 

"marginal" or "moderate," 50 tons or more per year in areas classified as "serious," 25 tons or 

more per year in areas classified as "severe," and 1 0 tons or more per year in areas classified as 

"extreme"; except that the references in this paragraph to 100, 50, 25, and 10 tons per year of 

. nitrogen oxides shall not apply with respect to any source for which the Administrator has made 

a finding, under section 182(£)(1) or (2) ofthe Federal Act, that requirements under section 

182(£) of the Federal Act do not apply; 

(b) [F]for ozone transport regions established pursuant to section 184 of the 

Federal Act, sources with the potential to emit 50 tons or more per year of volatile organic 

compounds; 

(c) [F]for carbon monoxide non-attainment areas (1) that are classified as 

"serious," and (2) in which stationary sources contribute significantly to carbon monoxide levels 

as determined under rules issued by the Administrator, sources with the potential to emit 50 tons 

or more per year of carbon monoxide; and · 

(d) [F]for particulate matter (PMl 0) non-attainment areas classified as 

"serious," sources with the potential to emit 70 tons or more per year of PM1 0. 

R. t'Operating [I!Jnermit" or "permit" (unless the conte;.,_1: suggests otherwise) 

means any permit or group of permits covering a source that is issued, renewed, modified or 

revised pursuant to this Part. 

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

a facility. 

T. "Own ern means the person or persons who ovm. a facility or part of a facility.· 

20.2. 70 1\TMA.C Proposed Revisions Page 4 of 18 
U. "Part" means an air quality control regulation under Title 20, Chapter 2 of the 

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

V. "Part 70 source" means any source subject to the permitting requirements ofu1is 

Part, as provided in 20.2. 70.200 1\TMAC - 20.2. 70.299 NMAC. 

'W. "Permit modification" means a revision to an operating permit that meets the 

requirements of significant pemiit modifications, minor permit modifications, or administrative 

permit amendments, as defined in 20.2. 70.404 NMAC. · 

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

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

Y. "Portable [8]~ource" means any plant that is mounted on any chassis or skids 

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

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

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

that must be removed prior to the application of a lifting or pulling force for the purpose of 

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

plants and concrete batch plants which meet tbis criteria 

z. "Potential to emit" means the maximum capacity of a stationary source to emit 

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

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

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

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

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

AA. "Proposed permit'' means the version of a permit that the [If]ct:epartment 

proposes to issue and forwards to the Administrator for review in compliance with 20.2. 70.402 

Nl\1AC. 

AB. "Regulated air pollutant" means the folloVving: 

(1) Nitrogen oxides, total suspended particulate matter, or any volatile organic 

compounds; 

(2) Any pollutant for which a national ambient air quality standard has been 

promulgated; 

(3) Any pollutant that is subject to any standard promulgated under section 111 of 

the Federal Act; 

(4) Any Class I or Il substance subject to any standard promulgated under or 

established by title VI of the Federal Act; or 

(5) Any pollutant subject to a standard promulgated under section 112 or any other 

requirements established under section 112 of the Federal Act, including sections 112(g), G), and 

(r), including the following; 

(a) any pollutant subject to requirements under section 112G) of the Federal 

Act. If the Administrator fails to promulgate a standard by the date established pursuant to 

section 112(e) of the Federal Act, any pollutant for which a subject source would be a major 

shall be considered to be regulated on the date 18 months after the applicable date established 

pursuant to section 112(e) of the Federal Act; and 

(b) any pollutant for which the requirements of section 112(g)(2) of the 

Federal Act have been met, but only V\~th respect to the individual source subject to a section 

112(g)(2) requirement. 

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

20.2.70 NMA.C Proposed Revisions Page 5 of 18 
AD. nResponsible official" means one ofthe foUovf.cUg: 

(1) For a corporation: a president, secretary, treasurer, or vice-president of the 

corporation in charge of a principal business function, or any other person who performs similar 

policy or decision-making functions for the corporation, or a du1y authorized representative of 

such person if the representative is responsjble for the overall operation of one or more 

manufacturing, production, or operating facilities applying for or subject to a permit and either a) 

the facilities employ more than 250 persons or have gross annual sales or expenditures exceeding 

$25 million (in second quarter 19 80 dollars), or b) the delegation of authority to such 

representative is approved in advance by the [P]Q,epartment. 

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

respectively. . 

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

execl?-tive officer or ranking elected official. For the purposes of this Part, a principal executive 

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

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

US EPA). 

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

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

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

other purposes under 40 CFR, Part 70. 

AE. "Section 502(b)(10) changes" are changes that contravene an express permjt 

term. Such changes do not include changes that would violate applicable requirements or 

contravene permit terms and conditions that are monitoring (inchiding test methods), 

recordkeeping, reporting, or compliance certification requirements. 

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

equipment, process equipment or process for any purpose. 

AG. "Solid waste incineration unit" means a distinct operating unit of any facility 

which combusts any solid waste material from commercial or industrial establishments or the 

general public (including single and multiple residences, hotels, and motels). The term "solid 

waste incineration unit" does not include: 

(1) [±]incinerators or other units required to have a permit under section 3005 of 

the federal Solid Waste Disposal Act; 

(2) [M]materials recovery facilities (including primary or secondac'}' smelters) 

which combust waste for the primary purpose of recovering metals; 

(3) [Q]gualifying small power production facilities, as defined in section 3(17)(C) 

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

defined in section 3(18)(B) ofthe Federal Power Act (16 U.S.C. 796(18)(8)), which burn 

homogeneous waste (such as uruts which burn tires or used oil, but not including refuse-derived . 

fuel) for the production of electric energy or in the case of qualifying cogeneration facilities 

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

useful energy (such as heat) whlch are used for industrial, commercial, heating or cooling 

purposes; or 

( 4) [A ]_gil curtain incinerators, provided that such incinerators only burn wood 

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

limitations established by the Admjnistrator by rule. 

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

equipment, process equipment or process for any purpose. . 

Al. "Stationary source" or 11 source" means any building, structure, facility, orinstallation, or any combination thereof that emits or may emit any regulated air pollutant or any 

pollutant listed under section 112(b) of the Federal Act. 

AJ. "Subsidiary" means a business 'concern which is o-wned or controlled by, or is a 

partner of, the applicant or permittee. 

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

period of less than one year, after which it will be dismantled and removed from its current site 

or relocated to a new site. A temporary source may be semi-permanent, which means that is 

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

well head compressors which meet this criteria. 

AL. "Title I [MJmodification" means any modification under sections Ill or 112 of 

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

preconstruction regulations promu~gated under Parts C and D of the Federal Act. 

20.2.70.201 REQUIREl\1ENT FOR A PERMIT: 

A. A Part 70 source may operate after the time that it is required to submit a timely 

and complete application under this Part only if: 

(1) the source is in compliance with an operating permit issued by the Department 

or EPA; or 

(2) a timely permit (including permit renewal) application has been submitted 

consistent with 20.2.70.300 NMAC. The ability to operate under these circumstances shall cease 

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

additional information identified as being needed to process the application. 

B. Revocation or termination of a permit by the Depa,_-tment terminates the 

permittee's right to operate. 

C. The submittal of a complete operating permit application shall not protect any 

source from any applicable requirement, including any requirement that the s0urce have a 

preconstruction permit under title I of the Fegeral Act or state regulations. 

D, Requirement for permit under 20.2.72 NMAC. 

(1) Part 70 sources that have an operating permit and do not have a permit issued 

under 20.2.72 NMAC or 20.2.74 NMAC shall submit a complete application for a permit under 

20.2. 72 NMAC v.rithin 180 days of [EFFECTIVE DATE OF THIS SUBSECTION- xx/xx/06]. 

The department may extend this deadline on a case-by-case basis based on a showing of good 

cause. 

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

N1vfAC upon the effective date of this subsection shall submit an aoplication for a permit under 

20.2. 72 NMAC within 60 days after submittal of an application for an operating permit. 

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

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

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

conditions in their operating permit to ensure compliance with these standards. 

20.2.70.300 PERMIT APPLICATIONS: 

20.2.70 NMAC Proposed Revisions Page7ofl8 
A... Duty to apply[:-]!. For each Part 70 source, the o-vvner or operator shall submit a 

timely and complete permit application in accordance Vilith this Part. 

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

this Part is: 

(1) [¥]for first time applications, one that is submitted ·within tvvelve (12) months 

after the source commences operation as a Part 70 source, or as established in the transition 

schedule outlined in paragraph (4) of subsection B of20.2.70.300 N1vfAC; · 

(2) [F]for purposes of permit renewal, one that is submitted at least tvvelve (12) 

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

(3) [F]for the acid rain portion of permit applications for initial Phase II acid rain 

sources under title IV of the Federal Act, by January 1, 1996 for sulfur dioxide, and by January 

1, 1998 for nitrogen oxides[~]~ 

E4) Transition schedule. A .. timely application for a Part 70 source which is in 

operation on or be:fure December 19, 1995 is one that is submitted: 

(a) For sources, eKcept natural gas processing plants, r;,rhich have been 

issued a permit, including a permit modification, pursuant to 20.2.72 "N1vtAC, 20.2.74 Nl\L'\C, or 

20.2.79 l'&U ... C on or after ][llluary I, I 987, by February 2, 1995, except that persons owning 

more than one source in this category may submit applications for half of their sources by 

February 2, 1995 and submit the remaining applications by },{arch 19, 1995; 

(b) For sources, eJccept natural gas processing plants, \Vbich were issued a· 

permit, including a permit modification, pursuant to 20.2.72 N14A,C,·20.2.74 }J11J' ... C, or 20.2.79 

l'lliMCpriorto January 1, 1987,byJune 19, 1995; 

(c) For all other sources, by December 19, 1995. 

C. Completeness of [A]_wplication[:-].:.. 

(1) To be deemed complete, an application must provide all information required 

pursuant to subsection D of20.2.70.300 NMAC, except that applications for permit 

modifications need supply such information only if it is related to the proposed change. 

(2) If, while processing an application, regardless of whether it has been 

determined or deemed to be complete, the [.D]Q,epartment determines that additional information 

is necessary to evaluate or take final action on that application, it may request such information 

in writing and set a reasonable deadline for a response. 

(3) Any applicant who fails to submit any relevant facts or who has submitted 

incorrect information in a permit application or in a supplemental submittal shall, upon beconiing 

aware of such failure or incorrect submittal, promptly submit such supplementary facts or 

corrected information. In addition, an applicant shall provide further information as necessary to 

address any requirements that become applicable to the source after the date it filed a complete 

application but prior to release of a draft permit. . 

(4) The applicant's ability to operate without a permit, as set forth in paragraph (2) 

of subsection A of20.2.70.201 NMAC, shall be in effect from the date a timely application is 

submitted until the fmal permit is issued or disapproved, provided that the applicant adequately 

submits any requested additional information by the deadline specified by the (If]Q,epartment. 

D. Content of [A ].ill)plication[ :-t Any person seeking a permit under this Part shall do 

so by filing a written application with the [D]Q,epartment. The applicant shall submit three (3) 

copies of the permit application, or more, as requested by the [&J.gepartment. An applicant may 

ncit omit information needed to determine t.1.e applicability of, or to impose, any applicable 

requirement, or to evaluate the fee amount required under 20 .2. 71 1\TM..-\C (Operating Permit 

20.2.70 NMAC Proposed Revisions Page 8 of 18 
Emission Fees). Fugitive emissions shall be included i11 the permit application in the same 

manner as stack emissions, regardless of whether the source category in question is included i.n 

the list of sources contained in the definition of major source. All applications shallH meet the 

follmvinf!: requirements. 

(1) Be made on forms furnished by the [&]gepartrnent, which for the acid rain 

portions of permit applications and compliance plans shall be on nationally-standardized forms 

to the extent required by regulations promulgated under title TV of the Federal Act[;-]"" 

. (2) State the company's name and address (and, if different, plant name and 

address), together with the names and addresses of the owner(s), responsible official and the 

operator of the source, any subsidiaries or parent companies, the company's state of 

incorporation or principal registration to do business and corporate or partnership relationship to 

other permittees subject to this Part, and the telephone numbers and names of the owners' 

agent(s) and the site contact(s) familiar with plant operations[;-]"" · 

(3) State the date of the application[;-]:. 

· (4) Include a description ofthe source's processes and products (by Standard 

Industrial Classification Code) including any associated with alternative scenarios identified by 

the applicant, and a map, such as the 7.5 minute Topographic Quadrangle map published by the 

United States Geological Survey or the most detailed map available showing the exact location 

of the source. The location shall be identified by latitude and longitude or by UTM 

coordinates [;-1 

(5) For all emissions of all air pollutants for which the source is major and all 

emissions of regulated air pollutants, provide all emissions information, calculations and 

computations for the source and for each emissions unit, except for insignificant activities (as 

defined in 20.2. 70.7 N1v1AC). This shall include: 

(a) [A]E: process flow sheet of all components of the facility which would be 

involved in routine operations and emissions; 

(b) [±]identification and description of all emissions points in sufficient 

detail to establish the basis for fees and applicability of requirements ofthe state and Federal 

Acts; 

(c) [g]~missions rates in tons per year, pounds per hour: and in such terms as 

are necessary to establish compliance consistent -vvith the applicable standard reference test 

method; 

(d) [S]_§pecific information such as that regarding fuels, fuel use, raw 

materials, or production rates, to the extent it is needed to determine or regulate emissions; 

(e) [±]identification and full description, including all calculations and the 

basis for all control efficiencies presented, of air pollution control equipment and compliance 

monitoring devices or activities; · 

(f) [+]!he maximum and standard operating schedules of the source, as well 

as any work practice standards or limitations on source operation which affect emissions of 

regulated pollutants; 

(g) [AE:]ifrequested by the department an operational plan defining the 

measures to be taken to mitigate source emissions during startups, shutdo'Wils and emergencies; 

(h) [G]Qther relevant information as the [&]gepartment may reasonably 

require or which are required by any applicable requirements (including information related to 

stack height limitations developed pursuant to section 123 of the Federal Act); and 

20.2.70 NMAC Proposed- Revisions Page9ofl8 
(i) [F]for each alternative operating scenario identified by the applica.'1t, all 

of the information required in subparagraphs (a) through (h) abo.ve, as well as additional 

information determined to be necessary by the [BJ4epartment to define such alternative 

operating scenarios[tt 

(6) Provide a list of insignificant activities (as defined in 20.2.70.7 NM.A.C) at the 

source, their emissions, to the extent required by the [&J4epartment, and any information 

necessary to determine applicable requirements[tl. 

(1) Provide a citation and description of all applicable air pollution control 

requirements, including: . 

(a) [S]~ufficient information related to the emissions of regulated air 

pollutants to verify the requirements that are applicable to the source; and 

(b) [A]~ description of or reference to any applicable test method for 

determining compliance Vi~th each applicable requirement[;-l. 

(8) Provide an explanation of any proposed exemptions from othen:vise applicable 

requirements[~].:. 

(9) Provide other specific information that may be necessary to implement and 

enforce other requirements of the state or Federal Acts or to determine the applicability of such 

requirements, including information necessary to collect any permit fees owed under 20.2.71 

NMAC (Operating Permit Emission Fees)[~].:. 

[ (1 0) For applications \Vhich are required under the transition schedule in 

paragraph (4) of subsection B of20.2.70.300 }il\.{AC, include a dispersion modeling analysis, 

using US EPA approved models and procedures, showing whether emissions from the source 

would cause air pollutant concentrations in excess of any national ambient air quality standard. 

Air pollutants which are not emitted in significant (as defined in 40 CFR 52.2l(b)(23)(i)) 

amounts during routine operations need not be modeled. 

(a.) This requirement shall not apply to the follov;ing: 

(i) i'£ Part 70 source issued a permit under 20.2.72 N11i\C, 20.2.74 

Nl\1A.C, 20.2.79 l'JMAC after Janumy 1, ln6; or 

(ii) A Part 70 source subject to 20.2.14 l'~M/\,C, 20.2.16 NMAC, 

20.?.19 NMAC, 20.2.31 NMl\:C, 20.2.32 N11AC if no physical or operational modifications that 

ha:r.'e resulted in increased particulate matter, sulfur dimtide, or nitrogen made emissions have 

occurred since the time modeling was performed for that facility as part of revisions to those 

regulations. 

(b) The Department may waive modeling with respect to ozone if the 

Department determines that emissions from the source are not likely to cause ozone 

concentrations in excess ofthe national ainbient air quality standard.] 

[~J.QQl -rProvide certification of compliance, including[-:] all of the folloWing. 

(a) A certification, by a responsible official consistent with subsection E of 

20.2.70.300 NMAC, of the source's compliance status for each applicable requirement. For 

national ambient air quality standards. certifications shall be based on the followin£. 

(i) For first time applications, this certification shall be based on modeling 

submitted with the application for a permit under 20.2. 72 NMAC. 

(ii) For permit renewal applications. this certification shall be based on · 

compliance with the relevant terms and conditions of the current operatin£ permit. 

(b) A statement of methods used for determining compliance, including a 

description of monitoring, recordkeeping, and reporting requirements and test methods[tl. 

20.2.70 NMAC Proposed Revisions Page 10 of 18 
(c) A statement that the source Virill conti.L"1Ue to be in compliance -vv:ith 

applicable requirements for wbich it is in compliance, and Virill, ip. a timely manner or at such 

schedule expressly required by the applicable requirement, meet additional applicable 

requirements that become effective during the permit termH.:. 

(d) A schedule for submission of compliance certifications during the permit 

term, to be submitted no less frequently than annually, or more frequently if specified by the 

underlying applicable requirement or by the [ff]gepartment [;--aOO:].:. 

(e) · A statement indicating the source's compliance status with any enhanced 

monitoring ar1d compliance certification requirements of the Federal Act. 

[fR1lC!.D For sources that are not in compliance with all applicable requirements 

at the time of permit application, provide a compliance plan that contains-:- all of the following. 

(a) A description 0fthe compliance status of the source v.rith respect to all 

applicable requirements[~].:. 

(b) A narrative description of how the source v.rill acbieve compliance v.rith 

such requizements for which it is not in compliance[~].:. 

(c) A schedule of remedial measures, including an enforceable sequence of 

actions with milestones, leading to compliance v.rith such applicable requirements. The schedule 

of compliance shall be at least as stringent as that contained in any consent decree or 

administrative order to which the source is subject, and the obligations of any consent decree or 

administrative order shall not be in any way diminished by the schedule of compliance. Any 

such schedule of compliance shall be supplemental to, and shall not prohibit the [D]gepartrnent 

from taking any enforcement action for noncompliance with, the applicable requirements on 

which it is based[;-].:. 

(d) A schedule for submission of certified progress reports no less 

frequently than every six (6) months[;-and].:. 

(e) For the portion of each acid rain source subject to the acid rain 

provisions of title N of the Federal Act, the compliance plan content requirements specified in 

this paragraph, except as specifically superseded by regulations promulgated under title N of the 

Federal Act with regard to the schedule and method(s) the source v.rill use to achieve compliance 

with the acid rain emissions limitations. 

E. Certification[-:-].:. Any document, including any application form, report, or 

compliance certification, submitted pursuant to this Part shall contain certification by a 

responsible official oftruth, accuracy, and completeness. This certification and any other 

certification required under this Part shall state that, based on information and belief forri:ied after 

reasonable inquiry, the statements and information in the document are true, accurate, and 

complete. 

20.2. 70.302 

A. 

PERMIT CONTENT: 

Permit [G]£onditionsH.:. 

(1) The [ffJQ.epartment shall specify conditions upon a permit, including emission 

limitations and sufficient operational requirements and limitations, to assure compliance with all 

applicable requirements at the time of permit issuance or as specified in the approved schedule of 

compliance. The permit shall: 

(a) [F]for major sources, include all applicable requirements for all relevant 

emissions units in the major source. 

20.2.70 NMAC Proposed Revisions Page ll of 18 
(b) [¥]for any non-major source subject to 20.2.70.200 }..TJ\1AC20.2. 70.299 NMAC, include all applicable requirements which apply to emission.s units that 

cause the source to be subject to this Part. 

(c) [&]~ecify and reference the origin of and authority for each tenn or 

condition, and identify any difference in form as compared to the applicable requirement upon 

which the term or condition is based; 

(d) [±]include a severability clause to ensure the continued validity of the 

various permit requirements in the event of a challenge to anY portions of the permit; 

(e) [I]jnch.ide a provision to ensure that the permittee pays fees to the 

[±l-Jgepartment consistent with the fee schedule in 20.2. 71 l\TMAC (Operating Permit Emission 

Fees); and 

(f) [F)for purposes of the pennit shield, identify any requirement specifically 

identified in the permit application or significant permit modification that the [If)gepartment has 

determined is not applicable to the source, and state the basis for any such determination .. 

(2) Each permit issued shall, additionally, include provisions stating[~] the 

follovving. 

(a) The permittee shall comply with all terms and conditions of the permit. 

Any permit noncompliance is grounds for enforcement action. In addition, noncompliance with 

federally enforceable permit conditions constitutes a violation of the Federal ActH!. 

(b) It shall not be a defense for a permittee in an enforcement action that it 

would have been necessary to halt or reduce the permitted activity in order to maintain 

compliance with the conditions of the permit[-;-t 

(c) The permit may be modified, reopened and revised, revoked and 

reissued, or terminated for cause in accordance with 20.2.70.405 NMAC[-;-1 

(d) The filing of a request by the permittee for a permit modification, 

revocation and reissuance, or termination, or of a notification of planned changes or anticipated 

noncompliance shall not stay any permit condition[tl. 

(e) The permit does not convey any property rights of any sort, or any 

exclusive privilege[-;-1 

(f) Within the period specified by the [ff]gepartment, the permittee shall 

furnish any information that the [If]gepartment may request in writing to determine whether 

cause exists for reopening and revising, revoking and reissuing, or termination of the permit or to 

determine compliance ·with the permit. Upon request, the permittee shall also furnish to the 

[P].Qepartment copies ofrecords required by the permit to be maintained. 

(3) The terms· and conditions for all alternative operating scenarios identified in 

the application and approved by the [If)gepartment: 

(a) [&)§hall require that the permittee maintain a log at the permitted facility -

which documents, contemporaneously with any change from one operating scenario to another, 

the scenario under which the facility is operating; and 

(b) [&]§hall, for each such alternative scenario, meet all applicable 

requirements and the requirements of this Part. 

(4) The [PJ.Qepartment may impose conditions regulating emissions during startup 

and shutdown. 

(5) All permit terms and conditions which are required under the Federal Act or 

under any of its applicable requirements, incll)ding any provisions designed to limit a source's 

potential to emit, are enforceable by the Administrator and citizens under the Federal Act. The 

20.2.70 NMAC Proposed Revisions Page 12 ofl8 
permit shall specifically designate as not being federally enforceable under the Federal Act any 

terms or conditions included in the permit that are not required u,nder the Federal Act or under 

any of its applicable requirements. 

(6) The issuance of a permit, or the filing or approval of a compliance plan, does 

not relieve any person from civil or criminal liability for failure to comply with the provisions of 

the Air Quality Control Act, the Federal Act, federal regulations thereunder, any applicable 

regulations of the Board, and any other applicable law or regulation. 

(7) The [DJ.Qepartrnent may include part or all of the contents of the application as 

terms and conditions of the permit or permit modification. The [DJ.Qepartment shall not apply 

permit terms and ·conditions upon emissions ofregulated pollutants for which there are no 

applicable requirements, unless the source is major for that pollutant. 

(8) Fugitive emissions from a source shall be included in the operating permit in 

the same manner as stack emissions, regardless of whether the source category in question is 

included in the list of sources contained in the definition of major source. 

(9) The acid rain portion of operating permits for acid rain sources shall 

additionally: 

(a) [&]~tate that, where an applicable requirement of the Federal Act is more 

stringent than an applicable requirement of regulations promulgated under title IV of the Federal 

Act, both provisions shall be incorporated into the permit and shall be enforceable by the 

Administrator[:-]; and 

(b) [GJ.~ontain a permit condition prohibiting emissions exceeding any 

allowances that the acid rain source la-wfully holds under title IV of the Federal Act or the 

regulations promulgated thereunder. No permit modification under this Part shall be required for 

increases in emissions that are ·authorized by allowances acquired pursuant to the acid rain 

program, provided that such increases do not require a permit modification under any other 

applicable requirement. No limit shall be placed on the number of allowances held by the acid 

rain source. The permittee may not use allowances as a defense to noncompliance with any 

other applicable requirement. Any such allowance shall be accounted for according to the 

procedures established in regulations promulgated under title IV of the Federal Act. 

B. Pennit [D]guration[:].:. The [f)]gepartment shall issue operating permits for a 

fixed term of five (5) years. 

C. Monitoring[:-t 

(1) Each permit shall contain all emissions monitoring requirements, and analysis 

procedures or test methods, required to assure and verify compliance with the terms and 

conditions of the permit and applicable requirements, including any procedures and methods 

promulgated by the Administrator. 

(2) Where the applicable requirement does not require periodic testing or 

instrumental or noninstrumental monitoring (which may consist of recordkeeping designed to 

serve as monitoring), the permit shall require periodic monitoring sufficient to yield reliable data 

from the relevant time period that are representative of the source's compliance with the permit, 

as reported pursuant to subsection E of 20.2. 70.302 NMAC. Such monitoring requirements shall 

assure use of terms, test methods, units, averaging periods, and other statistical conventions 

consistent with the applicable requrrernent. 

(3) The pennit shall also contain specific requirements concerning t.'J.e use, 

maintenance, and, when appropriate, installation of monitoring equipment or methods. 

D. Recordkeeping[:l 

20.2.70 NMAC Proposed Revisions Page 13 ofl8 
(1) The permit shall require record.keeping sufficient to assure and verify 

compliance Vv1th the terms and conditions of the permit, including recordkeeping. of: 

(a) [+]:the date, place as defined in the permit, and time of sampling or 

measurements; 

(b) [+]:the date(s) analyses were perfonned; 

(c) [+]1he company or entity that performed the analyses; 

(d) [+]!he analytical techniques or methods used; 

(e) [+]!h~ results of such analyses; and 

(f) [+]!he operating conditions existing at the time of s~pling or 

measurement. 

(2) Records of all monitoring data and support information shall be retained for a 

period of at least five (5) years from the date of the monitoring sample, measurement, report, or 

application. Supporting information includes all calibration and maintenance records and all 

original strip-chart recordings for continuous monitoring instrumentation, and copies of all 

reports required by the permit. 

E. Reporting[-:-].=. The permit shall require reporting sufficient to assure and verify 

compliance with the terms and conditions of the permit and all applicable requirements, 

including[.;.] all of the following. 

(1) Submittal of reports of any required monitoring at least every six (6) months. 

The reports shall be due to the [±:}]gepartrnent "Within forty-five (45) days of the end ofthe 

permittee's reporting period. All instances of deviations from permit requirements, including 

emergencies, must be ciearly identified in such reports. All required reports must be certified by 

a responsible official consistent with subsection E of 20.2. 70.300 1--lMAC[;l 

(2) . Prompt reporting of all deviations (including emergencies) from permit 

requirements, including the date, time, duration and probable cause of such deviations, the 

quantity and pollutant type of excess emissions resulting from the deviation, and any corrective 

actions or preventive measures taken. Such reports shall include telephone, verbal or facsimile 

communication within twenty-four (24) hours of the start of the next business day and V/Titten 

notification v.rithin ten (1 0) days[~].=. 

(3) Submittal of compliance certification reports at least every twelve (12) months 

(or more frequently if so specified by an applicable requirement) certifying the source's 

compliance status with [all permit] terms and conditions contained in the permit [and all 

applicable requirements relevant to the source], including [those related to J emission limitations~ 

standards, or Work practices. The reports shall be due to the [±:}]4epartment within thirty (30) 

days of the end of the permittee's .reporting period. Such compliance certifications shall be 

submitted to the Administrator as well as to the [:Q.]gepartment and shall include: 

(a) [+]!he identification of each term 9r condition of the permit that is the 

basis of the certification; 

(b) [+]!he compliance status of the source; 

(c) [:w:Jwhether compliance was continuous or intermittent; 

(d) [+]!he method(s) used for determining the compliance status ofthe 

source, currently and during the reporting period ide1;1tified in the permit; and 

(e) [S]~uch other facts as the [&]gepartment may require to determine the 

compliance status of the source[-;-aB€lJ~ 

( 4) Such additional provisions as may be specified by W.l.e Administrator to 

determine the compliance status of the source. 

20.2. 70 NMAC Proposed Revisions Page 14 of 18 
F. Portable and Temporary Sources[:-1. Tne ~].Qepartment may issue permits for 

portable and temporary sources which allow such sources to relocate without undergoing a 

pennit modification. Such permits shall not apply to acid rain sources and snail include 

conditions to assure that: 

(1) [+]~e source is installed at all locations in a manner conforrrJ.ng 'With the 

permit; 

(2) [+]~e source shall comply with all applicable requirements and all other 

provisions of this Part at all authorized locations; 

(3) [+]!he o-wner or operator shall notify the [D].Qepartment in writing at least 

fifteen (15) calendar days in advance of each change in location; 

(4) [N]gotification shall include a legal description of where the source is to be 

relocated and how long it will be located there; and 

(5) [B]~missions from the source shall not, at any location, result in or contribute 

to an exceedance of a national ambient air quality standard or increment or visibility reqUirement 

under Part C of title I of the Federru Act. The [tf].Qepartment may require dispersion modeling to 

assure compliance at any location. · 

G. Compliance[-:-],_ To assure and verify compliance with the terms and conditions of 

the permit and with this Part, permits shall also[-:-] include all the following. 

(1) Require that, upon presentation of credentials and other documents as may be 

required by law, the permittee shall allow authorized representatives of the [&]gepartment to 

perform the following: 

(a) [B]~nter upon the permittee's premises where a source is located or 

emission related activity is conducted, or where records must be kept under the conditions of the 

permit; 

(b) [H]have access to and copy any records that must be kept under the 

conditions of the permit; 

(c) [±]inspect any facilities, equipment (including monitoring and air 

pollution control equipment), practices, or operations regulated or required under the permit; and 

(d) [&]~ample or monitor any substances or parameters for the purpose of 

assuring compliance with the permit or applicable requirements or as otherwise authorized by the 

Federal Act. 

(2) Require that sources required under paragraph (12) of subsection D of 

20.2.70.300 NMAC to have a schedule of compliance submit progress reports to the 

~]gepartrnent at least semiannually, or more frequently if specified in the applicable 

requirement or by the [D]gepartment. Such progress reports shall be consistent with the 

schedule of compliance and requirements of paragraph (12) of subsection D of20.2.70.300 

NMAC and shall contain: 

(a) [&].Qates for achieving the activities, milestones, or compliance required 

in the schedule of compliance, and dates when such activities, milestones or compliance were 

achieved; and 

(b) [A]~ exp]anation of why any dates in the schedule of compliance were 

not or -vvill not be met, and any preventive or corrective measures adopted. 

(3) IncJude such other provisions as the [D].Qepartrnent may require. 

H. Operational Flexibility[:-1 . 

(1) Section 502(b )(1 0) Changes 

20.2.70 NM.i>,C Proposed Revisions Page 15 of 18 
(a) The permittee may make section 502(b )(1 0) changes, as defined in 

20.2.70. 7 NlVlAC, without applying for a permit modification, if those changes are not title I 

modifications and the changes do not caus~ the facility to exceed the emissions allowable under 

the permit (whether expressed as a rate of emissions or in terms of total emissions). 

(b) For each such change, the permittee shall provide written notification to 

the [±f].Qepartrnent and the Administrator at least seven (7) days in advance of the proposed 

changes. Such notification shall in,clude a brief description of the change v-,rithin the permitted 

facility, the date on which the change will occur, any change in emissions, and any permit term 

or condition that is no longer applicable as a result of the change. 

(c) The permittee and [Jd.].Qepartment shall attach each such notice to their 

copy of the relevant permit. 

(d) If the ·written notification and the change qualify under this provision, 

the permittee is not required to comply with the permit terms and conditions it has identified that 

restrict the change. If the change does not qualify under this provision, the original terms of the 

permit remain fully enforceable. 

(2) Emissions trading within a facility[-:-1 

(a) The [&].Qepartment shall, if an applicant requests it, issue permits that 

contain terms and conditions allowing for the trading of emissions increases and decreases in the 

permitted facility solely for the purpose of complying with a federally enforceable emissions cap 

that is established in the permit in addition to any applicable requirements. Such terms and 

conditions shall include all terms and conditions required under 20.2. 70.302 N1v1AC to det~rmine 

compliance. If applicable requirements apply to the requested emissions trading, permit 

conditions shall be issued only to the extent that the applicable requirements provide for trading 

such increases and decreases without a case-by-case approval. 

(b) The applicant shall include in the application proposed replicable 

procedures and permit terms that ensure the emissions trades are quantifiable and enforceable. 

The [I}]gepartment shall not include in the emissions trading provisions any emissions units for 

which emissions are not quantifiable or for which there are no replicable procedures to enforce 

the emissions trades. The permit shall require compliance with all applicable requirements. 

(c) For each such change, the permittee shall provide written notification to 

the [ff].Qepartment and the Administrator at least seven (7) days in advance of the proposed 

changes. Such notification shall state when the change will occur and shall describe the changes 

in emissions that will result and how these increases and decreases in emissions will comply with 

the terms and conditions of the permit. 

(d) The permittee and [±}]gepartment shall attach each such notice to their 

copy of the relevant permit. 

I. Off-Permit Changes[-:-]!. 

(1) Permittees are allowed to make, v,r:ithout a permit modification, changes that 

are not addressed or prohibited by the operating permit, if: 

(a) [B]~ach such change meets all applicable requirements and shall not 

violate any existing permit term or condition; 

(b) [SJ.~uch changes are not subject to any requirements under title IV ofthe 

Federal Act and are not title I modifications; 

(c) [&]~uch changes are not subject to permit modification procedures under 

20.2.70.404 NlVlA.C; and 

20.2.70 NMAC Proposed Revisions Page 16 of 18 
(d) [+]!he permittee provides contemporaneous ·written notice to the 

[D Jflepartrnent and US EPA of each such change, except for changes that qualify as insignificant 

acti·vities. Such vnitten notice shall describe each such change, including the date, any change in 

emissions, pollutants emitted and any applicable requirement that would apply as a result of the 

change. 

(2) The permittee shall keep a record describing changes made at the source that 

result in emissions of a regulated air pollutant subject to an applicable requirement, but not 

otherwise regulated under the permit, and the emissions resulting from those changes. 

J. Permit Shield[:-1 

(1) Except as provided in this Part, the [D]gepartment shall expressly include in a 

Part 70 (20.2.70 NMAC) permit a provision stating that compliance with the conditions of the 

permit shall be deemed compliance with any applicable requirements as of the date of permit 

issuance, provided that: 

(a) [£-]~uch applicable requirements are included aii.d are specifically 

identified in the permit; or 

(b) [+].!he [&]gepartment, in acting on the permit application or significant 

permit modification, determines in writing that other requirements specifically identified are not 

applicable to the source, and the permit includes the determination or a concise summary thereof. 

(2) A Part 70 (20.2. 70 1\TMAC) permit that does not expressly state that a permit 

shield exists for a specific provision shall be presumed not to provide such a shield for that 

proVISIOn. 

(3) Nothing in this section or in any Part 70 (20.2. 70 NMAC) permit shall alter or 

affect the follmvi.ng: 

(a) [+].!he provisions of section 303 ofthe Federal Act-- Emergency 

Powers, including the authority of the Administrator under that section, or the provisions of the 

New Mexico Air Quality Control Act, section 74-2-10 NMSA 1978; 

(b) [+]the liability of an o¥.rner or operator of a source for any violation of 

applicable requirements prior to or at the time of permit issuance; 

(c) [+]!he applicable requirements of the acid rain program, consistent with 

section 408(a) of the Federal Act; or 

(d) [+]the· ability of US EPA to obtain information from a source pursuant to 

section 114 of the Federal Act, or the [& ]gepartment to obtain information subj"ect to theN ew 

Mexico Air Quality Control Act, section 74-2-13 NMSA 1978. 

(4) . The permit shield shall remain in effect ifthe permit terms and conditions are 

extended past the expiration date of the permit pursuant to subsection D of20.2.70.400 NMAC. 

(5) The permit shield shall extend to terms and conditions that allow emission 

increases and decreases as part of emissions trading within a facility pursuant to paragraph (2) of 

subsection H of 20.2.70.302 NMAC, and to all terms and conditions under each operating 

scenario included pursuant to paragraph (3) of subsection A of20.2.70.302 NMAC. 

(6) The permit shield shall not extend to administrative amendments under 

subsection A of 20.2.70.404 NMAC, to minor permit modifications under subsection B of 

20.2.70.4041\TMAC, to section 502(b)(l0) changes under paragraph (1) of subsection H of 

20.2.70.3021\TMAC, or to permit terms or conditions for which notice has been given to reopen 

or revoke all or part under 20.2.70.405 NMAC. 

20.2.70 NMAC Proposed Revisions Page 17 of 18 
20.2.70.304 E:MERGENCY PROVISION[.;-]:. 

A. An "emergency" means any situation arising from sudden and reasonably 

unforeseeable events beyond the control of the permittee, including acts of God, which situation 

requires immediate corrective action to restore normal operation, and that causes the source to 

exceed a technology-based emission limitation under the permit due to unavoidable increases in 

emissions attributable to the emergency. An emergency shall not include noncompliance to the 

ex'ient caused by improperly designed equipment, lack of preventive maintenance, or careless or 

improper operation. 

B. An emergency constitutes an affirmative defense to an action brought for 

noncompliance with such technology-based emission limitations if the permittee has 

demonstrated through properly signed, contemporaneous operating logs, or other relevant 

evidence that: 

(1) An emergency occurred and that the permittee can identify the cause(s) of the 

emergency; 

(2) The permitted facility was at the tiine being properly operated; 

(3) During the period of the emergency the permittee took all reasonable steps to 

minimize levels of emissions that exceeded the emission standards or other requirements in the 

permit; and 

( 4) The permittee fulfilled notification requirements under paragraph (2) of 

subsection E of20.2.70.302 NMAC. This notice must contain a description ofthe emergency,-

any steps taken to mitigate emissions, and corrective actions taken. 

C. In any enforcement proceeding, the permittee seeking to establish the occurrence 

of an emergency has the burden of proof. 

D. This provision is in addition to any emergency or upset provision contained in any 

applicable requirement[, except that Part 70 sources srroll not be subject to the provisions of 

20.2.7 i'JAMC (Excess Emissions during Malfunction, Star---tup, Shutdovm, or Scheduled 

Maintenance) for permit terms and conditions issued under 20.2.70 }JA.MC]. 

20.2.70 NMAC Proposed Revisions Page 18 of 18 
Tne Department proposes that the Board adopt the following revisions to 20.2.3 NMAC-

.<\mbient Air Quality Standards. 

20.2.3.9 LIMITATION OF APPLICABILITY TO 20.2.70 1\TM-..\.C. The requirements 

of this part are not applicable requirements under 20.2.70 NlviAC. as defined bv that oart. This 

section does not limit the aoolicabilitv offris oart to sources required to obtain a permit ooder 

20.2.72 NV.LAC, nor does it limit which terms and conditions of permits issued pursuant to 

20.2. 72 N.MAC are applicable requirements for permits issued pursuant to 20.2. 70 NJ\1AC. 

[20.2.3.9} 20.2.3.10 to 20.2.3.107 [RESERVED] 

NMED EXH.IBIT 

#38 
Tne Depa.."'iment proposes that the Board adopt the follov-ri...ng re·visions to 20.2. 72 NMACConstruction Permits. 

20.2.72.216 NONATTAINM.ENT AREA REQUIREMENTS: 

A. The requirements of this section apply to: 

(1) · A new source or modification of an existing source that [wf:l±e!:I] will emit a 

regulated air contaminant such that the ambient impact of the contarrlli.J.ant would exceed the 

significant ambient concentration in 20.2.72.500 NMAC, Table 1, at any location that does not 

meet the New Mexico Ambient Air Quality Standard for the contaminant; [ef] 

(2) A new source or modification of an existing source that [:wfii.efi] is not a major 

stationary source or major modification as defined in 20.2.79 NMAC and [¥fl:rieh] that vvill emit 

a regulated air contarillnant such that the ambient impact of the contaminant would exceed the 

significant ambient concentration in Table 1 at any location that does not meet the National · 

Ambient Air Quality Standard for the contaminant[,] : or 

(3) An existing source that does not propose an increase in emissions and that will 

emit a regulated air contaminant such that the ambient impact.ofthe contaminant would exceed 

the significant ambient concentration in 20.2.72.500 NMAC (Table 1) at any location that does 

not meet the national or New Mexico ambient air guality standard for the contaminant. 

B. A new source or modification of an existing source subject to this section shall 

offset the ambient impact of its emissions by: 

(1) Obtaining emission offsets for proposed emissions in an amount greater than 

one-to-one such that a net air quality benefit will occur; and · 

(2) Ensuring emission offsets are quantifiable, enforceable, and permanent by 

meeting the following sections of20.2.79 NMAC: 

(a.) 20.2.79.114 NMAC (Emission Offset Baseline) 

(b) 20.2.79.115 NMAC (Emission Offsets) 

(c) 20.2.79.117NMAC (AirQualityBene:fit) 

C. An existing source that is subject to this section shall demonstrate a net air quality 

benefit of at least a 20 percent reduction in ambient impact for each applicable contaminant. The 

20 percent reduction shall be calculated as the projected source impact subtracted from the 

existing source impact divided by the existing source.impact. The net air quality benefit must 

also meet the requirements of20.2.79.117 NMAC (Air Qualitv Benefit). 

NMED EXHIBIT 

#3C 
Trujillo, Rita, NMENV 

Distribution List Name: Stakeholder List 

Members: 

A.S. Shankar (ANAN@dynegy.com) 

Amy Welch (amy_p_welch@yahoo.com) 

Andy Nowak (anowak@cybermesa.com) 

Andy Price (andy.price@elpaso.com) 

Ann Wagner (awagne@motycorp.com) 

Anna Garcia (agarcia@getf.org) 

Annabelle Allison (aallison@aqcp.com) 

ANAN@dynegy.com 

amy_p_welch@yahoo.com 

anowak@cybermesa.com 

andy .price@elpaso.com 

awagne@molycorp.com 

agarcia@getf.org 

aallison@aqcp.com 

Anthony Walker (awalker@ppco.com) awalker@ppco.com 

Barbara Walz (barwal@tristategtorg) barwal@tristategtorg 

Barry Holman (bholman@giantcom) bholman@giant.com 

Becky Moore (bead@chevron.com) bead@chevron.com 

Ben Luce (lucein@cybennesa.com) lucein@cybennesa.com 

Beth Janello (bjanello@sandiapueblo.nsn.us) 

bjanello@sandiapueblo.nsn.us 

Bill Blankenship (billx@lanl.gov) billx@lanl.gov 

Bill Jaco (billj@misspotash.com) billj@misspotash.com 

Bill Scott (bscott@modrall.com) bscott@modrall.com 

Bill Underwood (bu@gknet.com) bu@gknet.com 

Billy Claxton {billy.claxton@holloman.af.mil) 

billy.claxton@holloman.af.mil 

Bob Andreoli (andreolr@wsmr.anny.mil) 

andreolr@wsmr.army. mil 

Bob Holdeman (bholdeman@csra.com) bholdeman@csra.com 

Brian Braden (bbraden@nmia.com) bbraden@nmia.com 

Brinda Ramanathan (seratinatech@plateautel.net) 

seratinatech@plateautel. net · 

Bruce Gantner (Bgantner@BR-inc.com) Bgantner@BR-inc.com 

Bruce Nicholson (BrucNichol@aol.com) BrucNichol@aol.com 

Bryon Chandler (Byron.L.Chandler@conocophillips.com) 

Buddy Shaw (shawbd@bp.com) 

Cliff Larsen (ziti1 @juno.com) 

Byron.L.Chandler@conocophillips.com 

shawbd@bp.com 

ziti1@juno.com 

Cris Casti}lo (castilloc@epenergy.com) 

castilloc@epenergy.com 

Curtis DeVore (cdevore@trinityconsultants.com) 

cdevore@trinityconsultants.com 

Dan Conway (con_engr@itis.com) con_engr@itis.com 

Dan Frich (dfrich@foamex.com) dfrich@foamex.com 

Daniel Salgado (dan_salgado@kindermorgan.com) 

dan_salgado@kindennorgan.com 

Daniel Schnee (daniel.schnee@elpaso.com) 

daniel.schnee@elpaso.com 

Danna Dewlen (dewl@chevron.com) dewl@chevron.com 

Daphne Economou {deconomou@liaise.org) 

deconomou@ fiaise.org 

daron page (page.daron@epamail.epa.gov) 

page.daron@epamail.epa.gov 

Dave Baker (bakerenv@swcp.com) bakerenv@swcp.com 

Dave Strasser (faithinc@flash.net) faithinc@flash.net 

David Bays (david.bays@wi.lliams.com) david.bays@williams.com 

David Hacker (david_hacker@crux.nmhu.edu) 

david_hacker@crux.nmhu.edu 

1 

NMED EXHIBIT 

#4 
David Martineau (dmartineau@kmg.com) dmartineau@kmg.com 

David Neleigh (neleigh.david@epamail.epa.gov) 

neleigh.david@epamail.epa.gov 

Dawn Meyers (dawn_meyers@kindennorgan.com) 

dawn_meyers@kindermorgan.com 

Dean Kaster (dkaster@kcsenergy.com) dkaster@kcsenergy.com 

Dean Metcalf (dean.metcalf@xcelenergy.com) 

dean.metcalf@xcelenergy.com 

Debbie Beaver (debbie.beaver@williams.com) 

debbie.beaver@williams.com 

Deborah Seligman (seligman@nmoga.org) 

seligman@nmoga.org 

Dennis Vaughn (drvaughn@phelpsdodge.com) 

drvaughn@phelpsdodge.com 

Don Whaley (don@navajo-refining.com) don@navajo-refining.com 

Don White (don.white@cannon.af.mil) don.white@cannon.af.mil 

Dorinda Mancini (dmancini@giant.com) dmancini@giant.com 

Doug Meiklejohn (dmeiklejohn@nmelc.org) 

dmeiklejohn@nmelc.org 

Doug Price (doug.price@navajo-refining.com) 

doug.price@navajo-refining.com 

Ed Hasely (lhasely@br-inc.com) lhasely@br-inc.com 

Ed Lasnik (elasnik@tristategt.org) elasnik@tristategt.org 

Frank Gallegos (frank.e.gallegos@intel.com) 

frank.e.gallegos@intel.com 

Frank Kenney (kenneyconsulting@zianetcom) 

kenneyconsulting@zianet.com 

Frank Kozeliski (fakoz@cia-g.com) fakoz@cia-g.com 

Frank Scott (fscott@avoniteinc.com) fscott@avoniteinc.com 

Gale Henslee (gale.henslee@xcelenergy.com) 

gale.henslee@xcelenergy.com 

Gary Henderson (gary.henderson@erm.com) 

gary.henderson@erm.com 

Gary Hofferber (Gary_Hofferber@kne.com) 

Gary_Hofferber@kne.com 

George Zanter (gzanter@herzogcompanies.com) 

gzanter@herzogcompanies.com 

Herb Harless (hharless@sidrich.com) hharless@sidrich.com 

Hugh Church (churchhw@aol.com) churchhw@aol.com 

Israel Tavarez (itavarez@cabq.gov) itavarez@cabq.gov 

J.D. Bullington Qdaci@aol.com) jdaci@aol.com 

Jack Braun Qebraun@duke-energy.com) jebraun@duke-energy.com 

J~ma McDonald ( Jana.McDonald@oldcastlematerials.com) 

Jana. Me Donald @oldcastlematerials.com 

Jarrett Airhart (nja@soudenniller.com) 

nja@soudermiller.com 

Jay Drybread Qay.drybread@honeywell.com) 

jay.drybread@honeywell.com 

Jeanne Bassett Ubassett@nmpirg.org) jbassett@nmpirg.org 

Jennifer Goldman Uennifergoldman@ogap.org) 

jennifergold man@ogap. org 

Jennifer Knowlton jknowlton@ypcnm.com 

Jerry Hereden Oerry.hereden@williams.com) 

jerry. hereden@williams.com 

Jerry Jordan Uerry@hlboperating.com) 

jerry@hlboperating.com 

Jerry Walker Qwalker@tristategt.org) 

jwalker@tristategt.org 

Jim Abbey (Jim.Abbey@dvn.com) Jim.Abbey@dvn.com 

Jim Jordan Qjordan@wm.com) jjordan@wm.com 

Jim Luther (James.G.Luther@Bhpbilliton.com) 

James. G. Luther@Bhpbilliton.com 

JoAnn Cobb Qcobb@bjservices.com) jcobb@bjservices.com 

2 
John Bartlit Qrbartlit@aol.com) jrbartlit@aol.com 

John Cofer Qohn.e.cofer@usa.conoco.com) 

john.e.cofer@usa.conoco.com 

John Hudspeth (john.hudspeth@xcelenergy.com) 

john.hudspeth@xcelenergy.com 

Joni Arends Qarends@nuclearactive.org) 

jarends@nucfearactive.org 

Joshua Epel Qbepel@duke-energy.com) jbepel@duke-energy.com 

Joyce Miley Qoyce.m.miley@conocophillips.com) 

joyce.m.miley@conocophillips.com 

Karl Tonander (ket@millereng.com) ket@millereng.com 

Ken Havens (Ken_Havens@kindermorgan.com) 

Ken Havens@kindermorgan.com 

Krishan Wahi (kkwahi@graminc.com) kkwahi@graminc.com 

Kristen Howell (kristen.howell@williams.com) 

kristen.howell@williams.com 

Kristin Koblis (kmkoblis@duke-energy.com) 

kmkoblis@duke-energy.com 

Larry Mapes (eljm@hometownenergy.com) 

eljm@hometownenergy .com 

Larry Messinger (lmessinger@peabodyenergy.com) 

Lori Suppes (lsuppes@tristategt.org) 

Louis Rose (lrose@montand.wm) 

Margaret Lowe (lowemj1 @bp.com) 

Mark Asoian (asoian@vail.net) 

Mark Bareta (mark.bareta@williams.com) 

Mark Hiles (mhiles@peabodyenergy.com) 

lmessinger@peabodyenergy.com 

lsu ppes@tristategt org 

lrose@montand.com 

lowemj1 @bp.com 

asoian@vail. net 

mark.bareta@wilfiams.com 

mhiles@peabodyenergy.com 

Mark Rodriguez (mrodrig 1 @elpasoelectric.com) 

mrodrig1 @elpasoelectric.com 

Michael Mack (mmack@ameramex.com) mmack@ameramex.com 

Michael Porto (michael.porto@holloman.af.mil) 

michael.porto@holloman.af.mil 

Mike Ratte (michael_ratte@urscorp.com) 

michaef_ratte@urscorp.com 

Nancy Norem (nnorem@pnm.com) nnorem@pnm.com 

Naomi Cortez (cortezn@epenergy.com) cortezn@epenergy.com 

Nathan Cote (nathan.cote@holloman.af.mil) 

nathan.cote@holfoman.af.mil 

Neal Butt (nbutt@cabq.gov) nbutt@cabq.gov 

Nick Kasperik (nkasperik@peabodyenergy.com) 

nkasperik@peabodyenergy.com 

Pat Nelson (nelsonconsulting@qwest.net) 

nelsonconsulting@qwest.net 

Patrick Josey (Patrick.Josey@elpaso.com) 

Patrick.Josey@elpaso.com 

Paul Wade (pwade@classonetech.com) pwade@classonetech.com 

Peter Botes (botespj@texaco.com) botespj@texaco.com 

PNM Raton (rps@bacavalley.com) rps@bacavalley.com 

Preston Batula (pbatula@hanover-co.com) 

pbatula@hanover-co.com 

Ralph Gruebel (gruebel@graminc.com) gruebel@graminc.com 

Ralph Williams (rwilfiams@classonetech.com) 

rwilliams@classonetech. com 

Randy Brogdon (RZB@gknet.com) RZB@gknet.com 

Randy Moorman (nmpirg@pirg.org) nmpirg@pirg.org 

Reid Allan (rsa@millereng.com) rsa@millereng.com 

Rex Ishmael (rex.ishmael@hal!iburton.com) 

rex. ishmael@halliburton. com 

Richard Duarte (ricardo.duarte@elpaso.com) 

ricardo.duarte@elpaso.com 

3 
Richard Virtue (wirtue@virtuelaw.com) 

wirtue@virtuelaw.com 

Rick Moore (moore@grandcanyontrust.org) 

moore@grandcanyontrust.org 

Rick Simmons (rsimmons@herzogcompanies.com) 

rsimmons@herzogcompanies.com 

Rob Clifford (rcliffor@apsc.com) rcliffor@apsc.com 

Rob Liles (Rliles@trinityconsultants.com) 

Rliles@trinityconsultants.com 

Rod Ventura (rventura@nmelc.org) rventura@nmelc.org 

Ron Dutton (Ron.Dutton@xcelenergy.com) 

Ron LePiatt (rleplatt@westerngas.com) 

Russ Stokes (rstokes@cghtomato.com) 

Russell Coryell (rcoryell@epelectric.com) 

Sam Cudney (sam@ensewice.com) 

Sandra Miller (sandra.miller@elpaso.com) 

Ron. Dutton @xcelenergy. com 

rleplatt@westerngas.com 

rstokes@cghtomato.com 

rcoryell@epelectric. com 

sam@ensewice.com 

sandra.miller@elpaso.com 

Sara Hutson (shutson@waid.com) shutson@waid.com 

Sarah Chavez (sarah.t.chavez@intel.com) 

Sarah Piltch (spiltch@nmelc.org) 

Scott Honan (shonan@molycorp.com) 

Scott Oliver (SOiiver@hanover-co.com) 

Scott Vail (sgvail@imcglobal.com) 

Sharon Kennedy (skennedy@giant.com) 

Sheary Gulp (sheary.culp@valero.com) 

Sheri Kolowski (scrite@cybermesa.com) 

sarah. t.chavez@intel.com 

spiltch@nmelc. org 

shonan@molycorp.com 

SOiiver@hanover -co.com 

sgvail@imcglobal.com 

skennedy@giant.com 

sheary.culp@valero.com 

scrite@cybermesa.com 

sherron (sherron@oglebay.onco.com) sherron@oglebay.onco.com 

Sonia Phillips (sonia.phillips@xcelenergy.com) 

sonia.phillips@xcelenergy. com 

Stan Curry (JSC@gknet.com) JSC@gknet.com 

Stuart Faith {fei@flash.net) fei@flash.net 

Terry Christian (terry.christian@warren-equipment.com) 

terry.christian@warren-equipment.com 

Terry Nelson (tnelson3@wm.com) tnelson3@wm.com 

Tom Hutchins (hutchinst@epenergy.com) 

hutchinst@epenergy.com 

Tommy Arnwine (ArnwiTH@Idng.com) AmwiTH@Idng.com 

Tony Dorame (tpenviron@aol.com) tpenviron@aol.com 

Victoria Brind'Amour (vicky.brindamour@sca.com) 

vicky.brindamour@sca.com 

Vijay Kurki-Gowdra (vkurkigowdra@marathonoil.com) 

vkurkigowdra@marathonoil.com 

W.K. Keenan (wkkeenan@equilon.com) wkkeenan@equilon.com 

Wayne Leipold (wleipold@phelpsdodge.com) 

wleipold@phelpsdodge.com 

William C.B. Underwood (bu@gknet.com) 

bu@gknet.com 

4 
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GARY E. JOHNSON 

GOVDU{OR 

January 19, 2001 

Dear Interested Party: 

State of New Mexico 

ENVIRONMENT DEPARTMENT 

AIR QUALITY BUREAU 

2048 Galisteo 

Santa Fe, New Mexico 87505 

Telephone (505) 827-1494 

Fax (505) 827-1523 

PETER MAGGIORE 

SECRE'I'ARY 

PAUL R. RTTZMA 

DEPIJTY SEc::RE'rAAY 

On the 8th ofJanuary, the New Mexico Environment Department's Air Quality Bureau held a meeting 

in Albuquerque to discuss how to implement the applicability of state ambient air standards, 20 

NMAC 2. 03, to Title V sources and the effect the implementation may have on these sources. During 

the discussion numerous points were identified on the negative effects of implementation and some 

possible solutions. 

There were many good recommendations that resulted from this meeting and the Bureau is 

considering each recommendation on its O"WTI merit. The facilitator's notes of the meeting and the 

recommendations made are attached. 

One major point that was identified was a need to clarifY the content of the letter dated December 15, 

2000. In the Jetter it is stated " ... AQB has determined that 20 NMAC 2.3 is an applicable 

requirement for all Title V Operating Permits." The AQB, based on historical notes and the hearing 

record, believes that state standards are an applicable requirement for all Title V Operating Permits. 

The December 15th letter was intended to facilitate discussion on the applicability and possible 

implementation. 

The Department has not made a final decision on how to apply state standards to Title V sources and 

the debate on the issue is not concluded. We will contact you to discuss a path forward. 

I would Like to thank everyone who participated in the meeting. We value your input. 

Sincerely, 

~ Sandra Ely 

Air Quality Bureau Chief 
GARY E. JOHNSON 

GOVERNOR 

September 25, 2002 

Dear Interested Party: 

State of New Mexico 

ENVIRONMENT DEPARTMENT 

AIR QUALITY BURBA U . 

2048 Galisteo Street 

Santa Fe, New Mexico 87505 

Telephone (505) 827-1494 

Fax (505) 827-1523 

JOHN R. D'ANTONIO, JR. 

SECRETARY 

The New Mexico Environment Department is preparing to present testimony to the Environmental Improvement 

Board concerning the Industry Working Group's petition to amend 20.2.70 N:MAC, Operating Permits and has 

requested that the EIB hold a hearing on the same day regarding a related Department proposal. The bearings 'on 

the proposed amendments are scheduled before the Environmental Improvement Board on November 8, 2002. 

This letter is to· announce an informational meeting to be held by the Air Quality Bureau on October 7, 2002, 

regarding the proposed changes to 20.2. 70 NMAC. 

Regulation 20.2.70 NMAC is the air quality regulation that establishes the requirements for obtaining an air 

quality operating permit. Air quality operating permits are required for major sources of air pollution; that is, 

those sources that emit 100 tons per year or more of an air poilu taut, or 10 tons per year of any one hazardous air 

pollutant, or 25 tons per year of any combination of hazardous air pollutants. 

The proposed amendments relate to the following issues: (I) Whether and how New Mexico Ambient Air Quality 

Standards (NMAAQS) and the National Ambient Air Quality Standards (NAAQS) would continue to be included 

in operating permits as applicable requirements; (2) To what extent would modeling be required for new permit 

applications and renewals, and; (3) In cases where modeling shows that emissions from a major source will result 

in-ambient impacts in excess ofNMAAQS, what would be required in a compliance plan. There are several other 

amendments proposed to the regulation as well. 

The Air Quality Bureau will be holding a public meeting on the proposed regulatory changes on October 7 at 1 :30 

p.m. in the library reading room at the Wheelwright Museum of the American Indian (website 

www.wheelwright.org), 704 Camino Lejo, Santa Fe. If you are interested in attending this meeting, please contact 

Rita Trujillo of the Air Quality Bureau at (505) 955-8024 or via e-mail at rita_ trujillo@mnenv.state.nm.us. 
GARY E. JOHNSON 

GOVERNOR 

State of New ldexico 

ENVIRONMENT DEPARTMENT 

AIR QUALITY BUREAU 

2 048 Galisteo Street 

Santa Fe, New Mexico 87505 

Telephone (505) 827-1494 

Fax (505) 827-1523 

Informational Meeting Regarding Proposed Revisions to 

20.2.70 NMAC- Operating Permits 

and the Applicability of Ambient Air Quality Standards 

October 8, 2002 

AGENDA 

Introductions (15 minutes) 

Air Quality Bureau Presentation (30 minutes) 

JOHN R. D'ANTONIO, JR. 

SECRETARY 

•!• What are the New Mexico Ambient Air Quality Standards (NMAAQS) and the 

National Ambient Air Quality Standards (NAAQS)? 

•!•. The Applicability ofNMAAQS and NAAQS to Operating Permits 

•!• The Department's Proposal for Revision of 20.2. 70 NMAC- Operating Permits 

Break (15 minutes) 

Questions and Comments 

Adjourn (by 4:30p.m.) 
Page 1 of 1 

Trujillo, Rita, NMENV 

From: Rita Trujillo [rita_trujillo@rimenv.state.nm.usJ 

Sent: Thursday, September 09, 2004 8:30AM 

To: Rita Trujillo 

Cc: Debra McElroy; Lester Drapela; Sandra Ely; Eric Ames; Richard Goodyear 

Subject: Meeting on NM Proposal for Revisions to 20.2. 70 NMAC 

The Environment Department, Air Quality Bureau, will be presenting our proposed revisions to 20.2.70 NMAC- Operating Permits 

at a public meeting to be held at the Runnels building auditorium, 1190 Sl Francis Drive (comer of St. Francis Drive and Alta Vista 

Street), Santa Fe, on Tuesday, September 21, from 2:00p.m. until4:00 p.m. 

The Department's proposal can be downloaded at o_ttg://www.nmenv.state.nm.us/agQlp_fQJ;U:~gs.html. The Environmental 

Improvement Board has scheduled a hearing on these proposed revisions for Thursday, November 4 at 9:30a.m. at the State 

Capitol Building (Roundhouse) in Santa Fe. 

We are looking forward to seeing you at this meeting. Please call me if you have any questions or have any trouble downloading 

any of the documents from our website. 

Rita Trujillo 

Air Quality Bureau 

New Mexico Environment Department 

2044 Galisteo 

Santa Fe, NM 87505 

(505) 955-8024 

e-mail: rita_trujillo@nmenv.state.nm.us 

7/17/2006 
Ralph Williams; Jerry Hereden; Terry Nelson; Sam Cudney; RiC?k Moore; Richard Duarte; Paul 

Seby; Norma McCaiian; Nancy Norem; Myke Lane; Mimi Adams; Michael Porto; Louis Rose; 

Kristin Koblis; Joshua Epel; John Bartlit; Jodie Gonzales; Jimmy Rivera; Jennifer Goldman; 

Jeanne Bassett; Don \Vhaley; Domonic Lees; Dennis Vaughn; Deborah Seligman; Daniel 

Schnee; Chris Mechels; Bruce Nicholson; Bruce Gantner; Andy Price; Andy Nowak; Adam 

Rankin; Reed Zars; W.K. Keenan; Vijay Kurki-Gowdra; Sheary Culp; Scott Vail; Russell 

Coryell; Ron LePlatt; Rick Loveless; PNM Raton; Paul Peacock; Michael Sims; Margaret Lowe; 

Lori Suppes; Larry Campbell; Joyce Miley; John Hudspeth; Joe King; Jerry Walker; Jerry 

Jordan; Jennifer Knowlton; Herb Harless; Harry Wang; George Zanter; Ed Hasely; Donald K. 

Judd; Debbie Beaver; Day Thomas; Dawn Meyers; David Pavlich; David Bays; Dan Frich; Chris 

Parks; Bob Andreoli; Billy Claxton; Bill Jaco; Benjamin Woods; Barry Holman; Ann Wagner; 

A.S. Shankar; Amy Welch; Andrew Frye; Bill Blankenship; Bill Scott; Bob Robeda; Cale 

Swanson; Cliff Larsen; Curtis DeVore; Doug Meiklejohn; Heather Anderson; Hugh Church; J.D. 

Bullington; Joe K.innikin; K. Barnett, Jr.; Krishan Wahi; Mark Vigil; Paul Robinson; Ralph 

Gruebel; Richard Harris; Scott Oliver 
New Mexico Environment Department 

Public Meeting on Proposed Revisions to 20.2.70 NMAC, Santa Fe, NM September 21, 2004 

Name Affiliation Address Phone E-mail 

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Trujillo, Rita, NMENV 

From: 

Sent: 

To: 

Subject: 

Trujillo, Rita, NMENV 

Thursday, June 29, 2006 9:46 AM 

Andy Nowak (anowak@cybennesa.com); Andy Price (andy.price@elpaso.com); Bruce 

Gantner (Bruce Gantner); Bruce Nicholson (BrucNichol@aol.com); Chris Mechels 

(cmechels@att.net); Daniel Schnee (daniel.schnee@elpaso.com); Dave Strasser 

(faithinc@flash.net); Deborah Seligman (seligman@nmoga.org); Dennis Vaughn 

(drvaughn@phelpsdodge.com); Don Whaley (don@navajo-refining.com); Jeanne Bassett 

Qbassett@nmpirg.org); Jennifer Goldman Uennifergoldman@ogap.org); Jimmy Rivera 

-7 Orivera@cajadelrio.corri); Jodie Gonzales Qgonzales@cajadelrio.com); John Bartlit 

Qrbartlit@aol.com); Joshua Epel Qbepel@duke-energy.com); Kristin Kobfis (kmkoblis@dukeenergy.com); Louis Rose (Louis Rose); Michael Lane (michael.k.lane@williams.com); Michael 

Porto (michael.porto@holloman.af.mil); Mimi Adams (madams12@earthlink.net); Nancy 

Norem (nnorem@pnm.com); Nonna McCallan (nmccallan@mindspring.com); Pat Nelson 

(nelsonconsulting@qwest.net); Paul Seby (pmseby@52801aw.com); Ralph Williams 

(rwiHiams@classonetech.com); Reed Zars (rzars@lariatorg); Richard Duarte 

(ricardo.duarte@eiR§.S.O~~Rrn); Rick Moore (moore@grandcanyontrust.org); Sam Cudney 

(sam@enservice.com); Terry Nelson (tnelson3@WDlCom) 

Meeting on Proposed Regulations 

We have propqsed revisions to regulations for applying state standards to major sources of 

air pollution. We will be holding a public meeting on July 6 at 2:00p.m. on the second 

floor of the Colgate Building, 2040 Pacheco Street (south of the intersection with St. 

Michael's Drive), Santa Fe to discuss the proposal. 

The proposed revisions are posted on our web site at 

http://www.nmenv.state.nm.us/aqb/prop_regs.html. 

Please let me know if you plan to attend this meeting. 

Thank you. 

Rita Trujillo 

Air Quality Bureau 

New Mexico Environment Depa~tment 

2044 Galisteo 

Santa Fe, NM 87505 

Phone: (505) 955-8024 

Fax: (505) 827-1543 

1 
New Mexico Environment Department 

Parts 3, 70, and 72 Revisions Public Meeting 

Name Affiliation 

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NEW·MEXICO 

ENVIRONMENTAL , IMPROVEMENT BOARD · NOTICE OF PUBLIC MEETlNG 

AND RUlE MAKING HEARING I 

The New Mexico Environmental 

Improvement Board ('Board') wiU 

hold a public rule making hearing on August 1, 2006 al9:00 a.m. at 

the State Capitol BuDding, Room # 

321, Santa Fe, New Mexico, lo 

consider the matter ol EiB 

05·12(A) to revise 202.3 NMAC 

(Ambient Air QualitY Standards), 

20.2.70 NMAC (Operating f'ennits) 

and 20.2.72 NMAC (Construction). Permits). · The proponent of the regulatory change is the New Mexico EllVI· 

ronment Department ('NMED'). Proposed revisions to 20.2. 70 

NMAC: .. · . NMED proposes to amend the 

definition of 'applicable. require- ment' lri the rule by removing the 

New Mexico Ambient IW Oua\i~ 

Standanls ('NMMQS'); to clan~ 

the procedure for affected source! 

lo submH dispersion modenng tot 

and to ce~ltv compliance witn tho 

National Ambient Air Qualliy Sian' 

dards· ('NMOS'); and to require that sources permitted under . 20.2.70 NMAC mue V pBmlHs) obtain a 20.2.72 NMAC or 20.2.74 

NMAC permit If they have· not 

done so pre\I!Dilsiy. NMED's pro· posal c!erifies that ceriUications of 

compliant:! tor new sources under 

202.10.300.0.11 NMAC \vifl be 

based on the modefing submitted i with the construction penmll appfl· cation and for sources reneWing · their pennl on compliance wilfi 

the tenns and condiUons ol the 

pennll NMED proposes to revise 

20.2.70.302.E.3 NMAC lo clarify that annual compftanee certifications are based on compliance with the terms and condiUons In 

the pi!JTTlit. 

NMED proposes to revise 

20.2.70.300.DI5)(g) NMAC to give NMED di~cretlon m requiring ap· 

1 pll~ants to submit operational plans lor stari·up and shutdown. I NMED proposes to revi'se 

20.2.70.304.0 NMAC to malch the 

equivalent federal.language in 40 

CFR 70.S. With this revision the 

rule· wiU require Title V soilrces to 

report violations of the terms and 

conditions In their permits and 

claim afflnnallve defenses for such 

viola!ions In a mamer consistent 

with other penniHed sources. Cur· 

renlfy, sources permitled under 

20.2.70 NMAC have some permit conditions that are subject to 

202.7 NMAC and other condiUons 

that are nol 

Proposed revision to 20.2.3 NMAC: ·. ' 

NMED proposes to adO section 

20.2.3.9 NMAC to 20.2.3 NMAC, 

which would provide that 20.2.3 

RMAC would not ap~ly to 20.2.70 

NMAC • Operating Pennits. The . proposed revision to 20.2.70 

·NMAC that requires sources that 

have not obtained a penn» under 

202.n NMAC (Construction Per· 

mils) or 20.2.74 NMAC (Permits • Prevention ol Significant Deterioration) ensures that all sources In ' 

New Mextro will meet the r~ulre- i 

ments of 20.2.3 NMAC. This is a · revision to the New Mexico Stale • Implementation Plan. . I Proposed revisions to 20.2.72 

NMAC: 

NMt:D propose. ·" revise 

20.2.72.216 NMAC so that fi wilt 

aprly to existlr-9, sources. !hat do no propose an mcrease 111 emts· 

sions but wilt ~mit a regulated air 

contaminant exceeding the signil\- canl concentration tor that poilu!· 

ant listed In 20.2. 72.500 NMAC at 

any location !hal does not meet 

the NAAQS tor the contaminant In 

addition, subsection C Is added to 

require that existing sources su~ 

ject to the section must demon· 

Strate a net air quality benetn of al 

least a 20 percent ~uctlon In 

amblen! impact lor e.ac~ i!JlPIIcable 

j contamtnant. · The proposed changes may be 

reviewed during .regular business 

hours at thir NMED Air Quauty Bureau office, 2044 GaliSteo: San· 

Ia Fe, "New Mexico. A ·lui text ol 

NMED's proposed changes are available on NMED's weti sHa at 

www.nmenv.state.nm.us, or by j' 

contacting Alta Trujillo al (505) 9 5 ·5 • 8 · o 2 4 o r rtta.trupllo@slate nm.us. · The hearing wilt be. conducted • In accordance with 20.1.1 NMAC 

(Rulemaldng Procedures) En\tlronmental Improvement Board; the 

Environmental Improvement Act, 

Section 74+9 NMSA 1978; .the 

Air Quality Control Act Section 

72·2·6 NMSA 1978; and other ap- plicable procedures. . All Interested persons will be 

given reasonab. le opportunity at 

the hearing to submit relevant ev> 

dence, data, views and argumen!s, oraHy or In writing, to llllrbduce · exhibits, and to examine wHnesS: es. Persons wishing to present technical testimony must file with 

the Boanl a wrinen noti~ of \ntenl 

to do so. The notice of intent shalt. 

(1) Identity the person tor whom 

lhe wftness(es) wiA testily; · (2) Identity eaCh technical witness 

that the person Intends to present 

and stale the gualll\cations of the 

witness, inc\udmg a description of 

their eaucal\on and worll back· 

ground; , (3) summarize or Include a copy of · the dlrect testimony of each tech· 

nlcal witness and state the antic!· 

paled duration clthe testimony of 

lhatwilness; · (4) fist and describe, or attach, 

each exhlbtt anticipated to be of· 

tered bv that person at the hear· ~·and 

(5)' attach the text of any rilcommended modlflcallons to \he proposed changes. Notices ol Intent lor the hearing 

must be received In the Office ol --the Board not· later than 5:00 pm o0n July 7, 2006, ·and should rei· erence the docket number, EIB 

05-t2(R), and the date of the 

hearing. Notices of lnlenllo pres· 

ent teChnical testimony should be 

Submitted to: 

Joyce Medina, 

Board Administrator 

Ofttce of the Envirorvriental 

Improvement Board 

Harold Runnels Building 

1190 Sl Francis Dr., 

Room N-2150 /2153 

Santa Fe, NM B7502 

Phone: (505} 827-2~25, 

Fax {505) 8~7·2836 

Any mamber o.f the general public may testifv at the nearing. No prlor notlftea6ori is regutred fo 

present non-technical testunony at 

the hearing. Any such member 

may also ofter eXhibits In connec· lion with his testimony, so long as !he exhibit is not unduly repe!H10Us 

of the \esHmony, A member ol the general pubDc 

who wishes to submit a written 

statement tor the record, In lieu of 

providing oral tesllmony at the 

hearing, Shall flle the written statement prior to the hearing, or sub· 

mil ft at the hearing. Persons having a disability and 

mietfmg help In being a part of this 

hearing process sl\ould contact 

Judy Bentley by July 18, 2006 at 

the NMED Personnel Services 

Bureau, P.O. Box 26110, 1190 Sl 

Francis· Drive, Santa Fe, New 

Mexico, 8750~1 telephone 505·827·9872. TDT users please aa:ess her number via the New 

Mexico Fle\ay Network at 

1-B00-659-833t. 

The Boanl may deUberate and 

rule on the proposed amendments 

at the close tit the hearing or the 

Board may convene a meeting a!· 

ter !he hearing to consider action • on !he proposal 'tournai: May 31, 2005 

.::., 

NMED EXHIBIT 

#5 
STATE OF NEW MEXICO 

County of Bernalillo SS 

Bill Tafoya, being duly sworn, declares and says that he is Classified 

Advertising Manager of The Albuquerque Journal, and that this newspaper is 

duly qualified to publish legal notices or advertisements within the meaning of 

Section 3, Chapter 167, Session Laws of 1937, and that payment therefore has 

been made of assessed as court cost; that the notice, copy of which is hereto 

attached, was published in said paper in the regular daily edition, for 

_1__ times, the first pub].ication being · on the ~ day of 

vr/lo~ . 20~/;~~·d !,h_._sub~equent consecutive publications on __ _ 

~~ ··v 20. 

~ -

efore me, a Notary Public, in and 

for the County of Bernalillo and State of New Mexico this 

~day of )yJ\ 0 :J of 20(2.~ 

PRICEJ:? \ le lc; 1_ ~ Statement to come at end of month. 

E:J!n Sloane 

ACCOUNT NUMBER _,_~Pr--"""''---'---='---'<--+- NOT AnY PUBLIC - STATE OF NEW MEXICO 

CLA-22-A (R-1193) M.y Commiss.ion Eltpires• lf-:-a'-(0 

/ 
New Mexico Commission of :Public Records 

Administrative Law Division 

1205 Camino Carlos Rey 

Santa Fe, NM 87507 

505-4 76-7907 

Affidavit of Publication in the New Mexico Register -----

I certify that the agency noted below has published legal notices or rules in the New Mexico 

Register, and that payment has been assessed by invoice for said legal notice or publication, 

which appeared on the date and in the volume and issue number noted0 b 

Date of Publication: 5/31/2006 Agency: c0~4,. . "'-:> ~ Volume: XVIJ Issue # : 10 EIB - A1r Qual .._0'\'\ "\2. • .., 1

·''!. 7s ~ 

Contact: Joyce Medina A,..OJ.. .·1 ··S>,:1> 

Invoice# : NMR-2006- 338 2044 Galisteo ~/' ~- ~~\ 

Amount: $33.00 Santa Fe, NM 87502- : JU~ ~~~~! ~-:._ 

D . . ~ ~~~~~;~:z-~:lnt f· .. ~ escnpt10n: '.;. · --··''ie~r~ , 

Notice Notice of Public Meeting \ l~· 

Attest: oL .11-..--L....JL..f<~~~~---~-~-­ Publisher,~Regi ter 

Administrative Law Division 

New Mexico Commission of Public Records 

Notice to Publishing Agency 

~ ..iLJotr Oe: -'t"'i ~az a. s1.:-;: · 

Date: 6/1/2006 

Enclosed are your agency's proof copies of the legal notices or rules which were published in the New 

Mexico Register. These document the fact that your Notice ofRulemaking, Proposed Rule, or 

Adopted Rule has been published in the New Mexico Register. 

Form SRC-2002-04 
510 New Mexicl ;gister I Volume XVII, Number 10 I ty 31, 2006 

requires sources that have not obtained a 

pem1it under 20.2.72 NMAC (Construction 

Permits) or 20.2.74 NMAC (Permits -

Prevention of Significant Deterioration) 

ensures that all sources in New Mexico will 

meet the requirements of 20.2.3 NMAC. 

This is a revision to the New Mexico State 

Implementation Plan. 

Proposed revisions to 20.2.72 NMAC: 

NMED proposes to revise 20.2.72.216 

NMAC so that it will apply to existing 

sources that do not propose an increase in 

emissions but will emit a regulated air contaminant exceeding the significant concentration for that pollutant listed in 

20.2.72.500 NMAC at any location that 

does not meet the NAAQS for the contaminant. In addition, subsection C is added to 

require that existing sources subject to the 

section must demonstrate a net air quality 

benefit of at least a 20 percent reduction in 

ambient impact for each applicable contaminant. 

The proposed changes may be reviewed 

during regular business hours at the NMED 

Air Quality Bureau office, 2044 Galisteo, 

Santa Fe, New Mexico. A full text of 

NMED's proposed changes are available on 

NMED's web site at 

www.nmenv.state.nm.us, or by contacting 

Rita Trujillo at (505) 955-8024 or rita.trujillo@state.nm.us. 

The hearing will be conducted in accordance with 20.1.1 NMAC (Rulemaking 

Procedures) Environmental Improvement 

Board; the Environmental Improvement 

Act, Section 74-1-9 NMSA 1978; the Air 

Quality Control Act Section 72-2-6 NMSA 

1978; and other applicable procedures. 

All interested persons will he given rea~onable opportunity at the hearing to submit 

relevant evidence, data, views and arguments, orally or in writing, to introduce 

exhibits, and to examine witnesses. Persons 

wishing to present technical testimony must 

file with the Board a written notice of intent 

to do so. The notice of intent shall: 

( l) identify the person for whom the 

witness(es) will testify; 

(2) identify each technical witness that 

the person intends to present and state the 

qualifications of the witness, including a 

description of their education and work 

background; 

(3) summarize or include a copy of the 

direct testimony of each technical witness 

and state the anticipated duration of the testimony of that witness; 

( 4) list and describe, or attach, each 

exhibit anticipated to be offered by that person at the hearing; and 

(5) attach the text of any recommended 

modifications to the proposed changes. 

Notices of intent for the hearing must be 

received in the Office of the Board not later 

than 5:00 pm on July 7, 2006, and should 

reference the docket number, EIB 05-12(R), 

and the date of the hearing. Notices of intent 

to present technical testimony should be 

submitted to: 

Joyce Medina, Board Administrator 

Office of the Environmental Improvement 

Board 

Harold Runnels Building 

1190 St. Francis Dr., Room N-2150 /2153 

Santa Fe, NM 87502 

Phone: (505) 827-2425, Fax (505) 827-

2836 

Any member of the general public may testity at the hearing. No prior notification is 

required to present non-technical testimony 

at the hearing. Any such member may also 

offer exhibits in connection with his testimony, so long as the exhibit is not unduly 

repetitious of the testimony. 

A member of the general pub I ic who wishes to submit a written statement for the 

record, in I ieu of providing oral testimony at 

the hearing, shall file the written statement 

prior to the hearing, or submit it at the hearing. 

Persons having a disability and needing 

help in being a part of this hearing process 

should contact Judy Bentley by July 18, 

2006 at the NMED, Personnel Services 

Bureau, P.O. Box 26110, 1190 St. Francis 

Drive, Santa Fe, New Mexico, 87502, telephone 505-827-9872. TDY users please 

access her number via the New Mexico 

Relay Network at l-800-659-8331. 

The Bc3.rd mo.y deliberate and rut!.! oo the 

proposed amendments at the close of the 

hearing or the Board may convene a meeting after the hearing to consider action on 

the proposal. 

NEW MEXICO LIVESTOCK 

BOARD 

NEW MEXICO LIVESTOCK BOARD 

NOTICE OF RULE MAKING AND 

ADOPTJON OF RULE HEARING, 

SETTING MILL LEVY AND 

REGULAR BOARD MEETING 

NOTICE JS HEREBY GIVEN that a 

rules hearing, setting mill levy and regular 

board meeting will be held on Tuesday, 

June 13, 2006, at the New Mexico 

Livestock Board, 300 San Mateo NE Suite 

l 000, Albuquerque, New Mexico at 9:00 

a.m. The Board will initiate rule changes 

regarding Food Safety, Meat and Poultry 

Inspection, set the mill levy and discuss 

other matters of general business. 

Copies of the agenda can be obtained by 

contacting Daniel Manzanares, Executive 

Director, New Mexico Livestock Board, 

300 San Mateo NE Suite l 000, 

Albuquerque, NM 87108-1500, (505) 841-

6161. 

Anyone who requires special accommodations is requested to notify the New 

Mexico Livestock Board office at (505) 

841-6161 of such needs at least five days 

prior to the meeting. 

NEW MEXICO 

STATE MINE 

INSPECTOR 

NOTJCE OF PUBLIC MEETING AND 

HEARING 

OF THE NEW MEXICO MINE 

SAFETY ADVISORY BOARD 

The New Mexico Mine Safety Advisory 

Board will hold a public meeting beginning 

at l 0:00A.M. Wednesday, June 14. 2006 

in the Association of Commerce and 

Industry Conference Room located on the 

4th floor of Association of Commerce and 

Industry building located at 2201 Buena· 

Vista SE in Albuquerque, New Mexico. 

During the meeting, the Mine Safety 

Advisory Board will conduct a public hearing on proposed rules for mine safety submitted by the State Mine Inspector. The 

Commission will consider a new rule, 

11.8.2 NMAC - Emergency Notification. 

The new rule implements Laws 2006, chapters I 02 and I 06 which establish a Mine 

Accider.~ Rapid Response System and 

require that the State Mine Inspector be 

immediately notified of mine accidents. 

The Board will also consider the repeal of 

rules Ml 69-0 (aka 19.7.4), Ml 73-2 (aka 

19.7.8), SIM 76-1 (aka 19.7.16), Ml 79-1 

(aka 19.7.18), Ml 79-2 (aka 19.7.19) and 

SIM 89-1 (aka 19.7.21) NMAC. To view 

proposed rule, go to the State Mine 

Inspector's homepage , at 

http://www. bmi.state.nm.us/. Copies of the 

proposed rule changes are also available 

from the New Mexico Bureau of Mine 

Safety, 801 Leroy Place, Socorro, NM 

87801 or by calling 505/835-5460. At the 

conclusion of the hearing, the Mine Safety 

Advisory Board may deliberate and make a 

recommendation to the State Mine 

Inspector on the proposed rule changes. 

A copy of the agenda for the meeting/hearing will be available at least 24 hours before 

the meeting and may be obtained by con-
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

Mr. Richard L. Goodyear, P.E. 

Permit Programs Manager 

Air Quality Bureau 

New Mexico Environment Department 

1190 St. Francis Drive 

P.O. Box 26110 

Santa Fe, NM 87502-6110 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

SEP 1 0 2004 

RE: 20.2.70 New Mexico Administrative Code (NMAC), section 304.D, 20.2.7 NMAC 

(Excess Emissions during Malfunction, Startup, Shutdown, or Scheduled Maintenance) 

Dear Mr. Goodyear: 

Thank you for your email in which you requested comments regarding proposed changes 

to 20.2. 70 NMAC, section 304.D. 

The proposed change that would make 20.2.70 NMAC, section 304.D. match 40 Code of 

Federal Regulations 70.6(g)(5) is consistent with Part 70 requirements and incorporates the 

State's upset rule as an applicable requirement of its title V program. 

However, there is a problem with Section 20.2. 7.1 09. Although the State is not making 

changes to Section 20.2. 7.109 directly, that provision now becomes applicable to all title V 

sources with this change. Section 20.2. 7.109 is not consistent with the Environmental Protection 

Agency's (EPA) interpretation of the Clean Air Act as outlined in a 1999 memorandum, State 

Implementation Plans (SIPs): Policy Regarding Excess Emissions During Malfunctions, Startup, 

and Shutdown. Section 20.2.7.109 states: 

20.2.7.109 OPERATIONS 1N VIOLATION: Operation of any process equipment or air 

pollution control equipment in a manner inconsistent with any Air Quality Control 

Regulation which is a result of malfunction, startup, shutdown or scheduled maintenance 

is a violation of an applicable Air Quality Control Regulation unless the owner or 

operator of the facility has complied with the notification requirements of 20.2. 7.110 

NMAC in a timely manner and has demonstrated to the Department's satisfaction that... 

Internet Address (URL) - http://vvww.epa.gov/earth1 r6/ 

Recycled/Recyclable- Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer) 
2 

Section 20.2.7.109 is inconsistent with EPA's interpretation ofthe Clean Air Act because 

the provision can be interpreted to exempt emissions from compliance with SIP limits. Because 

excess emissions might aggravate air quality so as to prevent attainment or interfere with 

maintenance of the ambient air quality standards, EPA views all excess emissions as violations 

of the applicable emission limitation. However, the State or EPA can exercise enforcement 

discretion to refrain from taking enforcement action in certain circumstances. Also, the State has 

discretion to provide an affirmative defense to actions for penalties brought for excess emissions 

that arise during certain malfunction, startup, and shutdown episodes. Please see the enclosed 

1999 memo on excess emissions for details and model language. Also, Region 6 will be glad to 

provide any further information. 

I thank you for the opportunity to comment, and I hope that this is helpful. If you have 

any questions, please call me at (214) 665-7250 or Daron Page of my staff at (214) 665-7222. 

Sincerely yours, 

Enclosure 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

MEMORANDUM 

SUBJECT: State Implementation Plans (SIPs): Policy Regarding 

Excess Emissions During Malfunctions, Startup, and 

Shutdown 

FROM: Steven A. Herman 

TO: 

Assistant Administrator for Enforcement and Compliance 

Assurance 

Robert Perciasepe 

Assistant Administrator for Air and Radiation 

Regional Administrators, Regions I - X 

The Environmental Protection Agency's (EPA's) policy for 

SIPs regarding excess emissions during malfunctions, startup, 

shutdown, and maintenance is contained in memoranda from Kathleen 

Bennett, formerly Assistant Administrator for Air, Noise and 

Radiation dated September 28, 1982 and February 15, 1983. A 

recent review of SIPs suggests that several contain provisions 

that appear to be inconsistent with this policy, either because 

they were inadvertently approved after EPA issued the 1982-1983 

guidance or because they were part of the SIP at that time and 

have never been removed. In order to address these provisions in 

a consistent manner, today we are reaffirming and supplementing 

the 1982-83 policy. In so doing, we are taking this opportunity 

to clarify several issues of interpretation that have arisen 

since that time. This updated policy will clarify the types of 

excess emissions provisions states may incorporate into SIPs so 

that they can in turn provide greater certainty to the regulated 

community. 

As EPA stated in its 1982 memorandum, because excess 

emissions might aggravate air quality so as to prevent attainment 

or interfere with maintenance of the ambient air quality 

standards, EPA views all excess emissions as violations of the 

applicable emission limitation. Nevertheless, EPA recognizes 

that imposition of a penalty for sudden and unavoidable 
- 2 -

malfunctions caused by circumstances entirely beyond the control 

of the owner or operator may not be appropriate. Accordingly, a 

State or EPA can exercise its "enforcement discretion" to refrain 

from taking an enforcement action in these circumstances. 

The main question of interpretation that has arisen 

regarding the old policy is whether a State may go beyond this 

"enforcement discretion" approach and include in its SIP a 

provision that would, in the context of an enforcement action for 

excess emissions, excuse a source from penalties if the source 

can demonstrate that it meets certain objective criteria (an 

"affirmative defense") . This policy clarifies that States have 

the discretion to provide such a defense to actions for penalties 

brought for excess emissions that arise during certain 

malfunction, startup, and shutdown episodes. 

In the context of malfunctions, EPA recognizes that even 

equipment that is properly designed and maintained can sometimes 

fail. At the same time, EPA has a fundamental responsibility 

under the Clean Air Act to ensure that SIPs provide for 

attainment and maintenance of the national ambient air quality 

standards ("NAAQS")and protection of prevention of significant 

deterioration (PSD) increments. Thus, EPA cannot approve an 

affirmative defense provision that would undermine the 

fundamental requirement of attainment and maintenance of the 

NAAQS, or any other requirement of the Clean Air Act. See 

sections 110{a) and (1) of the Clean Air Act, 42 U.S.C. § 7410(a) 

and (1) . 1 Accordingly, an acceptable affirmative defense 

provision may only apply to actions for penalties, but not to 

actions for injunctive relief. This restriction insures that 

both State and federal authorities remain able to protect air 

quality standards and PSD increments. 

Furthermore, this approach is appropriate only when the 

respective contributions of individual sources to pollutant 

concentrations in ambient air are such that no single source or 

small group of sources has the potential to cause an exceedance 

of the NAAQS or PSD increments. 2 Where a single source or small 

1Pursuant to Section 110{1), EPA may not approve a SIP 

revision if "the revision would interfere with any applicable 

requirement concerning attainment and reasonable further 

progress, or any other applicable requirement of this chapter." 

See also CAA § 193, 42 U.S.C. § 7515, and the definitions of 

"emission limitation" and "emission standard" contained in CAA 

§ 302 (k)' 42 u.s.c. § 7602 (k). 

2 In the case of lead and sulfur dioxide, attainment 

problems usually are caused by one or a few sources and an 
- 3 -

group of sources has the potential to cause an exceedance of the 

NAAQS or PSD increments, EPA believes an affirmative defense 

approach will not be adequate to protect public health and the 

environment, and the only appropriate means of dealing with 

excess emissions during malfunction, startup, and shutdown 

episodes is through an enforcement discretion approach. 3 

The EPA is also taking this opportunity to clarify that it 

does not intend to approve SIP revisions that would enable a 

State director's decision to bar EPA's or citizens' ability to 

enforce applicable requirements. Such an approach would be 

inconsistent with the regulatory scheme established in Title I of 

the Clean Air Act. The EPA is also adding contemporaneous record 

keeping and notification criteria to make its policy regarding 

these types of events consistent with its enforcement approach. 

Finally, EPA is clarifying how excess emissions that occur 

during periods of startup and shutdown should be addressed. In 

general, because excess emissions that occur during these periods 

are reasonably foreseeable, they should not be excused. However, 

EPA recognizes that, for some source categories, even the best 

available emissions control systems might not be consistently 

effective during startup or shutdown periods. In areas where the 

respective contributions of individual sources to pollutant 

concentrations in ambient air are such that no single source or 

small group of sources has the potential to cause an exceedance 

of the NAAQS or PSD increments, these technological limitations 

may be addressed in the underlying standards themselves through 

narrowly-tailored SIP revisions that take into account the 

potential impacts on ambient air quality caused by the inclusion 

of these allowances. In these instances, as part of its 

justification of the SIP revision, the State should analyze the 

affirmative defense is not appropriate. This situation can be 

particularly aggravated where a short-term standard (e.g., where 

exceedances or violations are based on a few hour period) is also 

in place. Although this policy is generally applicable for other 

NAAQS, enforcement discretion is the only appropriate approach 

for dealing with excess emissions during startup, shutdown, and 

malfunction in a specific area where a single source or a small 

group of sources has the potential to cause nonattainment of a 

short-term NAAQS. 

3 In American Trucking Association v. EPA, 175 F. 3d 1027 

(D.C. Circ., 1999), the court remanded the PM2.5 NAAQS to the 

EPA. The Agency has not determined whether this policy is 

appropriate for PM2.5 NAAQS. 
- 4 -

impact of the potential worst-case emissions that could occur 

during startup and shutdown. 4 

In addition to this approach, States may address this problem 

through the use of enforcement discretion or they may include a 

general affirmative defense provision in their SIPs for short and 

infrequent startup and shutdown periods along the lines outlined 

in the attachment. As mentioned above, however, in those areas 

where a single source or small group of sources has the potential 

to cause an exceedance of the NAAQS or PSD increments, issues 

relating to excess emissions arising during startup and shutdown 

may only be addressed through an enforcement discretion approach. 

All Regions should review the SIPs for their States in light 

of this clarification and take steps to insure that excess 

emissions provisions in these SIPs are consistent with the 

attached guidance. 

Attachment 

4

States may account for such emissions by including them in 

their routine rule effectiveness estimates. Rule effectiveness 

estimates may be prepared in accordance with an EPA policy 

document entitled "Guidelines for Estimating and Applying Rule 

Effectiveness for Ozone/Carbon Monoxide State Implementation Plan 

Base Year Inventories." (EPA-452/R-92-010) November 1992. 
Attachment 

POLICY ON EXCESS EMISSIONS DURING MALFUNCTIONS, STARTUP, AND 

SHUTDOWN 

Introduction 

This policy specifies when and in what manner state 

implementation plans (SIPs) may provide for defenses to 

violations caused by periods of excess emissions due to 

malfunctions, 1 startup, or shutdown. Generally, since SIPs must 

provide for attainment and maintenance of the national ambient 

air quality standards and the achievement of PSD increments, all 

periods of excess emissions must be considered violations. 

Accordingly, any provision that allows for an automatic 

exemption2 for excess emissions is prohibited. 

However, the imposition of a penalty for excess emissions 

during malfunctions caused by circumstances entirely beyond the 

control of the owner or operator may not be appropriate. States 

may, therefore, as an exercise of their inherent enforcement 

discretion, choose not to penalize a source that has produced 

excess emissions under such circumstances. 

This policy provides an alternative approach to enforcement 

discretion for areas and pollutants where the respective 

contributions of individual sources to pollutant concentrations 

in ambient air are such that no single source or small group of 

sources has the potential to cause an exceedance of the NAAQS or 

PSD increments. Where a single source or small group of sources 

has the potential to cause an exceedance of the NAAQS or PSD 

increments, as is often the case for sulfur dioxide and lead, 3 

EPA believes approaches other than enforcement discretion are not 

appropriate. In such cases, any excess emissions may have a 

significant chance of causing an exceedance or violation of the 

applicable standard or PSD increment. 

1The term excess emission means an air emission level which 

exceeds any applicable emission limitation. Malfunction means a 

sudden and unavoidable breakdown of process or control equipment. 

2The term automatic exemption means a generally applicable 

provision in a SIP that would provide that if certain conditions 

existed during a period of excess emissions, then those 

exceedances would not be considered violations. 

3This policy also does not apply for purposes of PM2.5 

NAAQS. In American Trucking Association v. EPA, 175 F. 3d 1027 

(D.C. Circ., 1999), the court remanded the PM2.5 NAAQS to the 

EPA. The Agency has not determined whether this policy is 

appropriate for PM2.5 NAAQS. 
- 2 -

Except where a single source or small group of sources has 

the potential to cause an exceedance of the NAAQS or PSD 

increments, states may include in their SIPs affirmative 

defenses 4 for excess emissions, as long as the SIP establishes 

limitations consistent with those set out below. If approved 

into a SIP, an affirmative defense would be available to sources 

in an enforcement action seeking penalties brought by the state, 

EPA, or citizens. However, a determination by the state not to 

take an enforcement action would not bar EPA or citizen action. 5 

In addition, in certain limited circumstances, it may be 

appropriate for the State to build into a source-specific or 

source-category-specific emission standard a provision stating 

that the otherwise applicable emission limitations do not apply 

during narrowly defined startup and shutdown periods. 

I. AUTOMATIC EXEMPTIONS AND ENFORCEMENT DISCRETION 

If a SIP contains a provision addressing excess emissions, 

it cannot be the type that provides for automatic exemptions. 

Automatic exemptions might aggravate ambient air quality by 

excusing excess emissions that cause or contribute to a violation 

of an ambient air quality standard. Additional grounds for 

disapproving a SIP that includes the automatic exemption approach 

are discussed in more detail at 42 Fed. Reg. 58171 (November 8, 

1977) and 42 Fed. Reg. 21372 (April 27, 1977). As a result, EPA 

will not approve any SIP revisions that provide automatic 

exemptions for periods of excess emissions. 

The best assurance that excess emissions will not interfere 

with NAAQS attainment, maintenance, or increments is to address 

excess emissions through enforcement discretion. This policy 

provides alternative means for addressing excess emissions of 

criteria pollutants. However, this policy does not apply where a 

single source or small group of sources has the potential to 

cause an exceedance of the NAAQS or PSD increments. Moreover, 

4

The term affirmative defense means, in the context of an 

enforcement proceeding, a response or defense put forward by a 

defendant, regarding which the defendant has the burden of proof, 

and the merits of which are independently and objectively 

evaluated in a judicial or administrative proceeding. 

5

Because all periods of excess emissions are violations and 

because affirmative defense provisions may not apply in actions 

for injunctive relief, under no circumstances would EPA consider 

periods of excess emissions, even if covered by an affirmative 

defense, to be "federally permitted releases" under EPCRA or 

CERCLA. 
- 3 -

nothing in this guidance should be construed as requiring States 

to include affirmative defense provisions in their SIPs. 

II. AFFIRMATIVE DEFENSES FOR MALFUNCTIONS 

The EPA can approve a SIP revision that creates an 

affirmative defense to claims for penalties in enforcement 

actions regarding excess emissions caused by malfunctions as long 

as the defense does not apply to SIP provisions that derive from 

federally promulgated performance standards or emission limits, 

such as new source performance standards (NSPS) and national 

emissions standards for hazardous air pollutants (NESHAPS) . 6 In 

addition, affirmative defenses are not appropriate for areas and 

pollutants where a single source or small group of sources has 

the potential to cause an exceedance of the NAAQS or PSD 

increments. Furthermore, affirmative defenses to claims for 

injunctive relief are not allowed. To be approved, an 

affirmative defense provision must provide that the defendant has 

the burden of proof of demonstrating that: 

1. The excess emissions were caused by a sudden, 

unavoidable breakdown of technology, beyond the control of the 

owner or operator; 

2. The excess emissions (a) did not stem from any activity 

or event that could have been foreseen and avoided, or planned 

for, and (b) could not have been avoided by better operation and 

maintenance practices; 

3. To the maximum extent practicable the air pollution 

control equipment or processes were maintained and operated in a 

manner consistent with good practice for minimizing emissions; 

4. Repairs were made in an expeditious fashion when the 

operator knew or should have known that applicable emission 

limitations were being exceeded. Off-shift labor and overtime 

must have been utilized, to the extent practicable, to ensure 

that such repairs were made as expeditiously as practicable; 

5. The amount and duration of the excess emissions 

(including any bypass) were minimized to the maximum extent 

practicable during periods of such emissions; 

6

To the extent a State includes NSPS or NESHAPS in its SIP, 

the standards should not deviate from those that were federally 

promulgated. Because EPA set these standards taking into account 

technological limitations, additional exemptions would be 

inappropriate. 
- 4 -

6. All possible steps were taken to minimize the impact of 

the excess emissions on ambient air quality; 

7. All emission monitoring systems were kept in operation 

if at all possible; 

8. The owner or operator's actions in response to the 

excess emissions were documented by properly signed, 

contemporaneous operating logs, or other relevant evidence; 

9. The excess emissions were not part of a recurring 

pattern indicative of inadequate design, operation, or 

maintenance; and 

10. The owner or operator properly and promptly notified 

the appropriate regulatory authority. 

The EPA interprets these criteria narrowly. Only those 

malfunctions that are sudden, unavoidable, and unpredictable in 

nature qualify for the defense. For example, a single instance 

of a burst pipe that meets the above criteria may qualify under 

an affirmative defense. The defense would not be available, 

however, if the facility had a history of similar failures 

because of improper design, improper maintenance, or poor 

operating practices. Furthermore, a source must have taken all 

available measures to compensate for and resolve the malfunction. 

If a facility has a baghouse fire that leads to excess emissions, 

the affirmative defense would be appropriate only for the period 

of time necessary to modify or curtail operations to come into 

compliance. The fire should not be used to excuse excess 

emissions generated during an extended period of time while the 

operator orders and installs new bags, and relevant SIP language 

must limit applicability of the affirmative defense accordingly. 

III. EXCESS EMISSIONS DURING STARTUP AND SHUTDOWN 

In general, startup and shutdown of process equipment are 

part of the normal operation of a source and should be accounted 

for in the planning, design, and implementation of operating 

procedures for the process and control equipment. Accordingly, 

it is reasonable to expect that careful and prudent planning and 

design will eliminate violations of emission limitations during 

such periods. 

A. SOURCE CATEGORY SPECIFIC RULES FOR STARTUP AND SHUTDOWN 

For some source categories, given the types of control 

technologies available, there may exist short periods of 

emissions during startup and shutdown when, despite best efforts 

regarding planning, design, and operating procedures, the 
- 5 -

otherwise applicable emission limitation cannot be met. 

Accordingly, except in the case where a single source or small 

group of sources has the potential to cause an exceedance of the 

NAAQS or PSD increments, it may be appropriate, in consultation 

with EPA, to create narrowly-tailored SIP revisions that take 

these technological limitations into account and state that the 

otherwise applicable emissions limitations do not apply during 

narrowly defined startup and shutdown periods. To be approved, 

these revisions should meet the following requirements: 

1. The revision must be limited to specific, narrowlydefined source categories using specific control strategies 

(e.g., cogeneration facilities burning natural gas and using 

selective catalytic reduction); 

2. Use of the control strategy for this source category 

must be technically infeasible during startup or shutdown 

periods; 

3. The frequency and duration of operation in startup or 

shutdown mode must be minimized to the maximum extent 

practicable; 

4. As part of its justification of the SIP revision, the 

state should analyze the potential worst-case emissions that 

could occur during startup and shutdown; 

5. All possible steps must be taken to minimize the impact 

of emissions during startup and shutdown on ambient air quality; 

6. At all times, the facility must be operated in a manner 

consistent with good practice for minimizing emissions, and the 

source must have used best efforts regarding planning, design, 

and operating procedures to meet the otherwise applicable 

emission limitation; and 

7. The owner or operator's actions during startup and 

shutdown periods must be documented by properly signed, 

contemporaneous operating logs, or other relevant evidence. 

B. GENERAL AFFIRMATIVE DEFENSE PROVISIONS RELATING TO 

STARTUP AND SHUTDOWN 

In addition to the approach outlined in Section II(A) above, 

States may address the problem of excess emissions occurring 

during startup and shutdown periods through an enforcement 

discretion approach. Further, except in the case where a single 

source or small group of sources has the potential to cause an 

exceedance of the NAAQS or PSD increments, States may also adopt 

for their SIPs an affirmative defense approach. Using this 
- 6 -

approach, all periods of excess emissions arising during startup 

and shutdown must be treated as violations, and the affirmative 

defense provision must not be available for claims for injunctive 

relief. Furthermore, to be approved, such a provision must 

provide that the defendant has the burden of proof of 

demonstrating that: 

1. The periods of excess emissions that occurred during 

startup and shutdown were short and infrequent and could not have 

been prevented through careful planning and design; 

2. The excess emissions were not part of a recurring 

pattern indicative of inadequate design, operation, or 

maintenance; 

3. If the excess emissions were caused by a bypass (an 

intentional diversion of control equipment), then the bypass was 

unavoidable to prevent loss of life~ personal injury, or severe 

property damage; 

4. At all times, the facility was operated in a manner 

consistent with good practice for minimizing emissions; 

5. The frequency and duration of operation in startup or 

shutdown mode was minimized to the maximum extent practicable; 

6. All possible steps were taken to minimize the impact of 

the excess emissions on ambient air quality; 

7. All emission monitoring systems were kept in operation 

if at all possible; 

8. The owner or operator's actions during the period of 

excess emissions were documented by properly signed, 

contemporaneous operating logs, or other relevant evidence; and 

9. The owner or operator properly and promptly notified the 

appropriate regulatory authority. 

If excess emissions occur during routine startup or shutdown 

periods due to a malfunction, then those instances should be 

treated as other malfunctions that are subject to the malfunction 

provisions of this policy. (Reference Part I above). 

bennell899a.wpd/August11, 1999