To : Cc:

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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 A M
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 RequirementsGoodyear, 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 N MAC - 20.2.72.499 N MAC;
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 N MAC o r 20.2.72.216 N MAC, 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 N MAC, table 1, at any location that does not meet the

N ew 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 N MAC 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 N MAC (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 N MAC an d 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, p lease 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, p lease contact the sender and destroy all copies of this message. -- This email has been scanned by the Sybari - Antigen Email System.To : Cc:

Bcc: Subject:

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 A M
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?
N MED 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. N M 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 beyondour borders.

N MED does not require applicants to provide public notice outside of the state of New Mexico (see attached legal determination). However, N MED does provide public notice to other states as required by 20.2.72.206.A.7 N MAC, 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 o f 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, p lease 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 R itzma 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 _____