From: "Schooley, Ted, NMENV" <ted.schooley@state.nm.us>

To: Catherine Penland/R6/USEPA/US@EPA

Cc: Emad Shahin/R6/USEPA/US@EPA, "Goodyear, Richard, NMENV" 

<richard.goodyear@state.nm.us>

Date: 05/26/2010 04:38 PM

Subject: RE: Docket ID No. EPA-R06-OAR-2007-0993, Proposed Approval of New Mexico State 

Implementation Plan Revision to Meet Interstate Transport Requirements

Cathy,

Change the wording of the sentence in question as follows:

1. Section 208.D says that the state of New Mexico will deny a permit for a source that doesn’t meet 

standards anywhere in the state unless the criteria for an exception in section 216 or in regulation 

20-.2.79 NMAC are met.

Ted Schooley

Technical Services Manager

3 Please consider the environment before printing this e-mail.

From: Penland.Catherine@epamail.epa.gov [mailto:Penland.Catherine@epamail.epa.gov] 

Sent: Wednesday, May 26, 2010 11:22 AM

To: Schooley, Ted, NMENV

Subject: Fw: Docket ID No. EPA-R06-OAR-2007-0993, Proposed Approval of New Mexico State 

Implementation Plan Revision to Meet Interstate Transport Requirements

Ted,

Could you please clarify Richard's first statement, regarding denying permits "anywhere in the state", 

along with anything else you might think necessary to assure Interstate Transport Requirements are 

being met through this SIP.

Thank you,

Catherine G. Penland

EPA Region 6 - 6PD-R

Phone: (214) 665-7122

Fax: (214) 665-6762

penland.catherine@epa.gov

----- Forwarded by Catherine Penland/R6/USEPA/US on 05/26/2010 12:11 PM -----

Docket ID No. EPA-R06-OAR-2007-0993, Proposed Approval of New Mexico State 

Implementation Plan Revision to Meet Interstate Transport Requirements
Goodyear, Richard, NMENV to: Catherine Penland 05/24/2010 03:06 PM

Regarding paragraph 2 on page 12 of the April 16, 2010 WildEarth Guardians comments on Docket ID 

No. EPA-R06-OAR-2007-0993, Proposed Approval of New Mexico State Implementation 

Plan Revision to Meet Interstate Transport Requirements, I submit the following response:

1. Section 208.D says that the state of New Mexico will deny a permit for a source that doesn’t meet 

standards anywhere in the state unless the criteria for an exception in section 216 or in regulation 

20-.2.79 NMAC are met. 

20.2.72.208 BASIS FOR DENIAL OF PERMIT: The Department shall deny any 

application for a permit or permit revision if considering emissions after controls: 

 A. It appears that the construction, modification or permit revision will not meet 

applicable regulations adopted pursuant to the Air Quality Control Act; 

 B. The source will emit a hazardous air pollutant or an air contaminant in excess of 

any applicable New Source Performance Standard or National Emission Standard for Hazardous 

Air Pollutants or a regulation of the board; 

 C. For toxic air pollutants, see 20.2.72.400 NMAC - 20.2.72.499 NMAC; 

 D. The construction, modification, or permit revision will cause or contribute to air 

contaminant levels in excess of any National Ambient Air Quality Standard or New Mexico

Ambient Air Quality Standard unless the ambient air impact is offset by meeting the 

requirements of either 20.2.79 NMAC or 20.2.72.216 NMAC, whichever is applicable; 

 2. Section 216 deals only with nonattainment areas, as does regulation 20.2.79 NMAC, 

Permits-Nonattainment Areas: 

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 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; 

 (2) a new source or modification of an existing source that is not a major 

stationary source or major modification as defined in 20.2.79 NMAC and 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 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 quality standard for the contaminant. 
 3. WildEarth Guardians statement, extracted below, contradicts the above portions of the New Mexico 

regulations.

“the New Mexico Environment Department has interpreted this 

requirement to mean that it only has the authority to deny a permit application that would

cause

or contribute to contaminant levels in excess of the NAAQS if the source is located in a

nonattainment area. Because 20.2.79 NMAC and 20.2.72.216 refer to permitting requirements 

for nonattainment areas, the Environment Department has taken the position that its permitting 

requirements do not allow the agency to deny a permit that would cause or contribute to an

exceedance of the NAAQS if that source is located in an attainment area.” 

4. The cited portions of the New Mexico regulations indicate that the New Mexico SIP contains adequate 

provisions to prohibit emissions according to Section 110(a)(2)(D)(i)(I) to ensure that significant 

contribution to nonattainment does not occur in the future in other States.

Richard Goodyear, PE

Permit Programs Manager

Air Quality Bureau

New Mexico Environment Department

 

Confidentiality Notice: This e-mail, including all attachments is for the sole use of the intended 

recipient(s) and may contain confidential and privileged information. Any unauthorized review, 

use, disclosure or distribution is prohibited unless specifically provided under the New Mexico 

Inspection of Public Records Act. If you are not the intended recipient, please contact the sender 

and destroy all copies of this message. -- This email has been scanned by the Sybari - Antigen 

Email System. 

Confidentiality Notice: This e-mail, including all attachments is for the sole use of the intended 

recipient(s) and may contain confidential and privileged information. Any unauthorized review, 

use, disclosure or distribution is prohibited unless specifically provided under the New Mexico 

Inspection of Public Records Act. If you are not the intended recipient, please contact the sender 

and destroy all copies of this message. -- This email has been scanned by the Sybari - Antigen 

Email System. 
From: "Schooley, Ted, NMENV" <ted.schooley@state.nm.us>

To: Catherine Penland/R6/USEPA/US@EPA, Emad Shahin/R6/USEPA/US@EPA

Cc: "Goodyear, Richard, NMENV" <richard.goodyear@state.nm.us>

Date: 05/27/2010 03:26 PM

Subject: RE: General questions concerning permit evaluations

Cathy,

I have provided our answers in red below.

Ted Schooley

Technical Services Manager

3 Please consider the environment before printing this e-mail.

From: Penland.Catherine@epamail.epa.gov [mailto:Penland.Catherine@epamail.epa.gov] 

Sent: Wednesday, May 26, 2010 11:11 AM

To: Schooley, Ted, NMENV

Subject: General questions concerning permit evaluations

Ted, 

Per call today, here are the questions would need answers to:

1. If NMED has opportunity to deny permit anywhere within state, does that mean "anywhere", or just 

places under authority of state permit program?

NMED has the authority to deny permits anywhere within its jurisdiction, which excludes tribal 

lands and areas under the authority of the Albuquerque Air Quality Division. 

2. When NMED is looking at ambient impacts to NAAQS for permit actions, are you looking just within 

state, or are you looking at impacts to surrounding states? If looking at surrounding states, under what 

circumstances, how far out, and do you provide anyone from that area or the state opportunity for 

comment to the permit action?

We do not limit impact analyses to within the state jurisdiction. NM state air dispersion 

modeling guidelines advise modelers to spread receptors in the surrounding area to encompass 

all terrain where a facility may have significant impact. For the cumulative analyses we retain 

only receptors that have concentrations above the SIL for a certain pollutant. In brief, our 

modeling guidelines do not restrict placement of receptors within NM, hence, modeling analyses 

to NM state jurisdiction areas. For areas outside NM state border, a facility in NM has to 

demonstrate compliance with NAAQS. 

We may inform the territorial organization if a NM facility shows non-compliance with NAAQS 

across border. I am not aware of a scenario where there was an exceedence of NAAQS beyond 
our borders.

NMED does not require applicants to provide public notice outside of the state of New Mexico 

(see attached legal determination). However, NMED does provide public notice to other states 

as required by 20.2.72.206.A.7 NMAC, which reads “Mail a copy of the public notice at the same 

time it is sent for publication to the appropriate agency in the following locations if the source will locate 

within fifty kilometers of the boundary of other states [emphasis added], Bernalillo County, or a Class I 

area. Copies of all public notices shall be sent to US EPA Region VI, if requested by US EPA.”

3. If NMED does ambient impact modeling for sources close to state borders that would encompass 

areas outside state, do you use other state's standards? Within analysis, would you include other 

sources, regardless of boundaries in analysis?

For facilities close to the border we require the inclusion of surrounding sources from the other 

state or territory in the modeling analyses. We do not require demonstration of compliance with 

standards of the neighboring state or territory. 

Would appreciate a fairly quick response to these to help move along an action here. I'll send a separate 

message, with request to explain the "anywhere" statement mentioned above. All will need is just 

response to that in e-mail string for docket posting.

Thank you,

Cathy

Catherine G. Penland

EPA Region 6 - 6PD-R

Phone: (214) 665-7122

Fax: (214) 665-6762

penland.catherine@epa.gov

Confidentiality Notice: This e-mail, including all attachments is for the sole use of the intended 

recipient(s) and may contain confidential and privileged information. Any unauthorized review, 

use, disclosure or distribution is prohibited unless specifically provided under the New Mexico 

Inspection of Public Records Act. If you are not the intended recipient, please contact the sender 

and destroy all copies of this message. -- This email has been scanned by the Sybari - Antigen 

Email System. 
GARY E. JOHNSON

GOVERNOR

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

SECRETARY

TO: NSR Permitting Staff 

DATE: March 7, 2002 

FROM: George Llewellyn 

RE: 20 NMAC 2.72.203.B(2), 

 Applicant’s Public Notice Outside of New Mexico 

20 NMAC 2.72.203.B(2) states “The applicant’s public notice for a permit or significant permit 

revision shall be provided by certified mail to all municipalities and counties in which the 

facility is or will be located and to all municipalities, Indian tribes, and counties within a ten (10) 

mile radius of the property on which the facility is proposed to be constructed or operated.” 

When the municipality, Indian tribe or county is located within a ten (10) mile radius of the 

property on which the facility is proposed to be constructed or operated and within the state 

boundaries of New Mexico, the rule is very clear. The applicant shall notify the municipality, 

Indian tribe and/or county. When the municipality, Indian tribe or county is located within a ten 

(10) mile radius of the property on which the facility is proposed to be constructed or operated, 

but is not within the state boundaries of New Mexico, the rule is unclear. 

Therefore, I sent a legal request to Paul Ritzma for an interpretation of 20 NMAC 2.72.203.B(2). 

 Paul’s interpretation is, “ The applicant is not required to notify municipalities, Indian tribes and 

counties within a ten (10) mile radius of the property on which the facility is proposed to be 

constructed or operated, if they are located outside the state boundaries of New Mexico. 

20 NMAC 2.72.203.B(2) is a New Mexico Air Quality Regulation and the Air Quality Bureau 

cannot require applicants to provide public notice outside of the state.” 

I hope this clarifies the public notice requirement for applicants of air quality construction 

permits. If you have any questions, please do not hesitate to contact me. 

CC: Paul Ritzma, OGC _____