TITLE 20 ENVIRONMENTAL PROTECTION
CHAPTER
2 AIR QUALITY (STATEWIDE)
PART 70 OPERATING PERMITS
20.2.70.1 ISSUING AGENCY:
Environmental Improvement Board.
[11/30/95;
20.2.70.1 NMAC - Rn, 20 NMAC 20.2.70.100, 06/14/02]
20.2.70.2 SCOPE:
All persons who own or operate a major source or any other source
required to obtain a permit under this Part.
[11/30/95;
20.2.70.2 NMAC - Rn, 20 NMAC 20.2.70.101, 06/14/02]
20.2.70.3 STATUTORY AUTHORITY:
Environmental Improvement Act, NMSA 1978, section 74-1-8(A)(4) and (7),
and Air Quality Control Act, NMSA 1978, sections 74-2-1 et seq., including
specifically, section 74-2-5(A), (B), and (C) and (D).
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20.2.70.3 NMAC - Rn, 20 NMAC 20.2.70.102, 06/14/02]
20.2.70.4 DURATION:
Permanent.
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20.2.70.4 NMAC - Rn, 20 NMAC 20.2.70.103, 06/14/02]
20.2.70.5 EFFECTIVE DATE:
11/30/95, except where a later date is cited at the end of a section.
[11/30/95;
20.2.70.5 NMAC - Rn, 20 NMAC 20.2.70.I.104, 06/14/02; A, 9/6/06]
[The latest
effective date of any section in this part is 02/06/2013.]
20.2.70.6 OBJECTIVE:
The objective of this Part is to establish the requirements for
obtaining an operating permit.
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20.2.70.6 NMAC - Rn, 20 NMAC 20.2.70.105, 06/14/02]
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 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),
oxygen (O2), 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 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 CFR, 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 C or D, 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 of the 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.
(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.
(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.
(11) Any national ambient air quality standard.
(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.
(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 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
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.
N. "General permit" means an operating permit
that meets the requirements of 20.2.70.303 NMAC.
O. "Greenhouse gas" for the
purpose of this part is defined as the aggregate group of the following six
gases: carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
P. "Hazardous air pollutant" means an air contaminant that has
been classified as a hazardous air pollutant pursuant to the federal act.
Q. "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.
R. "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 subject to regulation (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;
(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 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 finding, under
Section 182(f)(1) or (2) of the 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 (PM10) non-attainment areas
classified as "serious," sources with the potential to emit 70 tons
or more per year of PM10.
S. "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.
T. "Operator" means the person or persons
responsible for the overall operation of a facility.
U. "Owner" means the person or persons who own
a facility or part of a facility.
V. "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.
W. "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.
X. "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 defined in 20.2.70.404 NMAC.
Y. "Permittee" means the owner, operator or
responsible official at a permitted Part 70 source, as identified in any permit
application or modification.
Z. "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 and concrete
batch plants which meet this criteria.
AA. "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.
AB. "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.
AC. "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;
(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; or
(6) any other
pollutant subject to regulation as defined in Subsection AL of this section.
AD. "Renewal" means the
process by which a permit is reissued at the end of its term.
AE. "Responsible official"
means one of the 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 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.
AF. "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.
AG. "Shutdown" means the
cessation of operation of any air pollution control equipment, process
equipment or process for any purpose.
AH. "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) 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 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) 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 (such as
heat) which are used for industrial, commercial, heating or cooling purposes;
or
(4) air curtain
incinerators, provided that such incinerators only burn wood wastes, yard
wastes and clean lumber and that such air curtain incinerators comply with
opacity limitations established by the administrator by rule.
AI. "Startup" means the
setting into operation of any air pollution control equipment, process
equipment or process for any purpose.
AJ. "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.
AK. "Subsidiary" means a business concern which is
owned or controlled by, or is a partner of, the applicant or permittee.
AL. "Subject to regulation" means, for any air
pollutant, that the pollutant is subject to either a provision in the act, or a
nationally-applicable regulation codified by the administrator in subchapter C
of 40 CFR Chapter I, that
requires actual control of the quantity of emissions of that pollutant, and
that such a control requirement has taken effect and is operative to control,
limit or restrict the quantity of emissions of that pollutant released from the
regulated activity. Except that:
(1) "greenhouse gases" (GHGs) shall
not be subject to regulation, unless, as of July 1, 2011, the GHG emissions are
at a stationary source emitting or having the potential to emit 100,000 tons
per year CO2e equivalent emissions;
(2) the term "tons per year CO2e
equivalent emissions" (CO2e) shall represent the aggregate
amount of GHGs emitted by the regulated activity, and shall be computed by
multiplying the mass amount of emissions (tons per year), for each of the six
greenhouse gases in the pollutant GHGs, by the gas's associated global warming
potential published at Table A-1 to subpart A of 40 CFR part 98 - Global
Warming Potentials, and summing the resultant value for each gas; for purposes
of this paragraph, prior to July 21, 2014, the mass of the greenhouse gas
carbon dioxide shall not include carbon dioxide emissions resulting from the
combustion or decomposition of non-fossilized and biodegradable organic
material originating from plants, animals, or micro-organisms (including
products, by-products, residues and waste from agriculture, forestry and
related industries as well as the non-fossilized and biodegradable organic
fractions of industrial and municipal wastes, including gases and liquids
recovered from the decomposition of non-fossilized and biodegradable organic
material);
(3) if a federal court stays, invalidates or
otherwise renders unenforceable by the US EPA, in whole or in part, the
prevention of significant deterioration and Title V greenhouse gas tailoring
rule (75 FR 31514, June 3, 2010), the definition "subject to
regulation" shall be enforceable by the department only to the extent that
it is enforceable by US EPA.
AM. "Temporary source" 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.
AN. "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.
[11/30/95;
20.2.70.7 NMAC - Rn, 20 NMAC 2.70.I.107, 06/14/02; A, 11/07/02; A, 09/06/06; A,
01/01/11; A, 02/06/13]
20.2.70.8 AMENDMENT AND SUPERSESSION OF
PRIOR REGULATIONS: This Part amends and supersedes Air Quality
Control Regulation ("AQCR") 770, - Operating Permits, filed November
15, 1993, as amended ("AQCR 770").
The original effective date of AQCR 770 was December 19, 1994, which was
the effective date of approval, by the Administrator, of the New Mexico
operating permit program. (See 59 FR 59656, November 18, 1994).
A. All references to AQCR 770 in any other rule shall be
construed as a reference to this Part.
B. The amendment and supersession of AQCR 770 shall not
affect any administrative or judicial enforcement action pending on the
effective date of such amendment nor the validity of any permit issued pursuant
to AQCR 770.
[11/30/95;
20.2.70.8 NMAC - Rn, 20 NMAC 2.70.106, 06/14/02]
20.2.70.9 DOCUMENTS: Documents cited in this Part may be viewed at
the New Mexico Environment Department, Air Quality Bureau, Runnels Building,
1190 Saint Francis Drive, Santa Fe, NM
87505 [1301 Siler Rd., Bldg. B, Santa Fe, NM
87507].
[11/30/95;
20.2.70.9 NMAC - Rn, 20 NMAC 2.70.108, 06/14/02; A, 01/01/11]
20.2.70.10
to 20.2.70.199 [RESERVED]
20.2.70.200 PART 70 SOURCES:
Operating permits must be obtained from the Department for the following
sources:
A. Any major source;
B. Any source, including an area source, subject to a
standard or other requirement promulgated under section 111 -- Standards of
Performance for New Stationary Sources, or section 112 -- Hazardous Air
Pollutants, of the Federal Act, but not including any source which:
(1)
is exempted under Subsection B of 20.2.70.202
NMAC; or
(2) would be required
to obtain a permit solely because it is subject to regulations or requirements
under section 112(r) of the Federal Act;
C. Any acid rain source; and
D. Any source in a source category so designated by the
Administrator, in whole or in part, by regulation, after notice and comment.
[11/30/95;
20.2.70.200 NMAC - Rn, 20 NMAC 2.70.200, 06/14/02]
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 incorporation of conditions in their operating permit to ensure
compliance with these standards.
[11/30/95;
20.2.70.201 NMAC - Rn, 20 NMAC 2.70.II.201, 06/14/02; A, 9/6/06]
20.2.70.202 SOURCE CATEGORY EXEMPTIONS:
A. The following source categories are exempted from the
obligation to obtain an operating permit:
(1) All sources and source categories that
would be required to obtain a permit solely because they are subject to 40 CFR
Part 60, Subpart AAA -- Standards of Performance for New Residential Wood
Heaters;
(2) All sources and source categories that would
be required to obtain a permit solely because they are subject to 40 CFR Part
61, Subpart M -- National Emission Standard for Hazardous Air Pollutants for
Asbestos, section 61.145, Standard for Demolition and Renovation;
(3) Except as required under sections
20.2.70.500 NMAC - 20.2.70.599 NMAC, any source that would be required to
obtain a permit solely because of emissions of radionuclides; and
(4) Any source in a source category exempted
by the Administrator, by regulation, after notice and comment.
B. Non-major sources, including those subject to sections
111 or 112 of the Federal Act, are exempt from the obligation to obtain a Part
70 (20.2.70 NMAC) permit until such time that the Administrator completes a
rulemaking that requires such sources to obtain operating permits.
C. Any source exempted from the requirement to obtain an
operating permit may opt to apply for a permit under this Part.
D. No permit for a solid waste incineration unit shall be
issued by the Department if a New Mexico state agency is responsible, in whole
or in part, for the design and construction or operation of the unit. In such cases, applications shall be made to
the Administrator. Department review or
approval of solid waste incineration units shall not constitute responsibility
for the design, construction, or operation of the unit.
[11/30/95;
20.2.70.202 NMAC - Rn, 20 NMAC 2.70.202, 06/14/02]
20.2.70.203 EXISTING MAJOR SOURCES WHICH ARE NOT
REQUIRED TO HAVE A PERMIT UNDER 20.2.72 NMAC (CONSTRUCTION PERMITS):
A. The owner or operator of any major source may reverse or
avoid designation as a major source under this Part by obtaining a permit under
20.2.72 NMAC (Construction Permits) which includes federally enforceable
conditions which restrict the potential to emit of the source to non-major
emission rates. Such conditions may
include emissions limitations, process restrictions and/or limitations, restrictions
on annual hours of operation, or other conditions which reduce the facility's
potential to emit.
B. [REPEALED]
[11/30/95;
A, 11/19/97; 20.2.70.203 NMAC - Rn, 20 NMAC 2.70.203, 06/14/02]
20.2.70.204 BERNALILLO COUNTY:
For the operation of sources within Bernalillo County, the applicant shall
make such applications to the Air Pollution Control Division of the Albuquerque
Environmental Health Department or its successor agency or authority.
[11/30/95;
20.2.70.204 NMAC - Rn, 20 NMAC 2.70.204, 06/14/02]
20.2.70.205 INDIAN TRIBAL JURISDICTION:
The requirements of this Part do not apply to sources within Indian
Tribal jurisdiction. For the operation
of sources in that jurisdiction, the applicant should make such applications to
the Tribal Authority or to the Administrator, as appropriate.
[11/30/95;
20.2.70.205 NMAC - Rn, 20 NMAC 2.70.205, 06/14/02]
20.2.70.206
to 20.2.70.299 [RESERVED]
20.2.70.300 PERMIT
APPLICATIONS:
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;
(2) for purposes of
permit renewal, one that is submitted at least twelve (12) months prior to the
date of permit expiration;
(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;
C. Completeness of application.
(1) To be deemed complete, an application must
provide all information required pursuant to Subsection D of 20.2.70.300 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 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 of 20.2.70.201 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 application.
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.
(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 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) 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) if requested 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.
(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 department, and any information necessary to determine
applicable requirements.
(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.
(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) 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.
(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.
(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.
(e) A statement indicating the source's
compliance status with any enhanced monitoring and compliance certification
requirements of the federal act.
(11) 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.
(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 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.
(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. 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.
[11/30/95;
A, 11/14/98; 20.2.70.300 NMAC - Rn, 20 NMAC 2.70.III.300, 06/14/02; A, 9/6/06;
A, 01/01/11]
20.2.70.301 CONFIDENTIAL INFORMATION PROTECTION:
A. All confidentiality claims made regarding material
submitted to the Department under this Part shall be reviewed under the
provisions of the New Mexico Air Quality Control Act section 74-2-11 NMSA 1978
and the New Mexico Inspection of Public Records Act, sections 14-2-1 et seq. NMSA 1978.
B. In the case where an applicant or permittee has submitted
information to the Department under a claim of confidentiality, the Department
may also require the applicant or permittee to submit a copy of such information
directly to the Administrator.
C. An operating permit is a public record, and not entitled
to protection under section 114(c) of the Federal Act.
[11/30/95;
20.2.70.301 NMAC - Rn, 20 NMAC 2.70.301, 06/14/02]
20.2.70.302 PERMIT
CONTENT:
A. Permit conditions.
(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 department 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 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.
(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.
(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.
(e) The permit does not convey any property
rights of any sort, or any exclusive privilege.
(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.
The department 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:
(a) the date, place
as defined 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. 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 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 of 20.2.70.300 NMAC.
(2) Prompt reporting of all deviations from
permit requirements, including those attributable to upset conditions as
defined in the permit, the probable cause of such deviations, and any
corrective actions or preventive measures taken. The report shall be contained in the report submitted
in accordance with the timeframe given in Paragraph (1) of this section.
(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
terms and conditions contained in the permit, including 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.
(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 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) the source is
installed at all locations in a manner conforming with the permit;
(2) the 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. 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 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
(11) of Subsection D of 20.2.70.300 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
(11) of Subsection D of 20.2.70.300 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.
(1) Section 502(b)(10)
changes.
(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 department 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 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 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 all applicable requirements.
(c) For each such change, the permittee shall
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 allowed 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 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 department 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
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)(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.
[11/30/95;
A, 11/14/98; 20.2.70.302 NMAC - Rn, 20 NMAC 2.70.III.302, 06/14/02; A, 9/6/06;
A, 08/01/08]
20.2.70.303 GENERAL PERMITS:
A. Issuance of General Permits:
(1) The Department may, after notice and
opportunity for public participation and US EPA and affected program review,
issue a general permit covering numerous similar sources. Such sources shall be generally homogenous in
terms of operations, processes and emissions, subject to the same or
substantially similar requirements, and not subject to case-by-case standards
or requirements.
(2) Any general permit shall comply with all requirements
applicable to other operating permits and shall identify criteria by which
sources may qualify for the general permit.
B. Authorization to Operate under a General Permit:
(1) The owner or operator of a Part 70 source
which qualifies for a general permit must:
(a) Apply to the Department for coverage under
the terms of the general permit; or
(b) Apply for an operating permit consistent
with 20.2.70.300 NMAC.
(2) The Department may, in the general permit,
provide for applications which deviate from the requirements of subsection D of
20.2.70.300 NMAC, provided that such applications meet the requirements of the
Federal Act and include all information necessary to determine qualification
for, and to assure compliance with, the general permit. The Department shall review the application
for authorization to operate under a general permit for completeness within
thirty (30) days after its receipt of the application.
(3) The Department shall authorize qualifying
sources which apply for coverage under the general permit to operate under the
terms and conditions of the general permit.
The Department shall take final action on a general permit authorization
request within ninety (90) days of deeming the application complete.
(4) The Department may grant a request for
authorization to operate under a general permit without repeating the public participation
procedures required under 20.2.70.401 NMAC.
Such an authorization shall not be a permitting action for purposes of
administrative review under New Mexico Air Quality Control Act section 74-2-7.H
NMSA 1978. Permitting action for the
purposes of section 74-2-7 NMSA 1978 shall be the issuance of the general
permit.
(5) Authorization to operate under a general
permit shall not be granted for acid rain sources unless otherwise provided in
regulations promulgated under title IV of the Federal Act.
(6) The permittee shall be subject to
enforcement action for operation without an operating permit if the source is
later determined not to qualify for the conditions and terms of the general
permit.
[11/30/95;
20.2.70.303 NMAC - Rn, 20 NMAC 2.70.303, 06/14/02]
20.2.70.304 EMERGENCY 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 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 submitted notice of the
emergency to the department within 2 working days of the time when emission
limitations were exceeded due to the emergency; this notice fulfills the
requirement of 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.
[11/30/95;
20.2.70.304 NMAC - Rn, 20 NMAC 2.70.III.304, 06/14/02; A, 9/6/06; A, 08/01/08]
20.2.70.305
to 20.2.70.399 [RESERVED]
20.2.70.400 ACTION ON PERMIT APPLICATIONS:
A. A permit (including permit renewal) or permit
modification shall only be issued if all of the following conditions have been
met:
(1) The Department has received a complete
application for a permit, permit modification, or permit renewal, except that a
complete application need not be received before issuance of a general permit under
20.2.70.303 NMAC;
(2) Except for administrative and minor permit
modifications, the Department has complied with the requirements for public
participation procedures under 20.2.70.401 NMAC;
(3) Except for administrative amendments, the
Department has complied with the requirements for notifying and responding to
affected programs under 20.2.70.402 NMAC;
(4) The conditions of the permit provide for
compliance with all applicable requirements and the requirements of this Part;
and
(5) The Administrator has received a copy of
the proposed permit and any notices required under 20.2.70.402 NMAC, and has
not objected to issuance of the permit within the time period specified within
that section.
B. The Department shall, within sixty (60) days after its
receipt of an application for a permit or significant permit modification,
review such application for completeness.
Unless the Department determines that an application is not complete,
requests additional information or otherwise notifies the applicant of
incompleteness within sixty (60) days of receipt of an application, the
application shall be deemed complete.
When additional information is requested by the Department prior to
ruling an application complete, receipt of such information shall be processed
as a new application for purposes of this section. If the application is judged complete, a
certified letter to that effect shall be sent to the applicant. If the application is judged incomplete a
certified letter shall be sent to the applicant stating what additional
information or points of clarification are necessary to judge the application
complete.
C. The Department shall take final action on each permit
application (including a request for permit renewal) within eighteen (18)
months after an application is ruled complete by the Department, except that:
(1) For sources in operation on or before
December 19, 1994 and which submit to the Department timely and complete
applications in accordance with 20.2.70.300 NMAC, the Department shall take
final action on one third of such applications annually over a period not to
exceed three (3) years after such effective date;
(2) Any complete permit application containing
an early reduction demonstration under section 112(i)(5)
of the Federal Act shall be acted on within nine (9) months of deeming the
application complete; and
(3) The acid rain portion of permits for acid
rain sources shall be acted upon in accordance with the deadlines in title IV
of the Federal Act and the regulations promulgated thereunder.
D. If a timely and complete application for a permit renewal
is submitted, consistent with 20.2.70.300 NMAC, but the Department has failed
to issue or disapprove the renewal permit before the end of the term of the
previous permit, then the permit shall not expire and all the terms and
conditions of the permit shall remain in effect until the renewal permit has
been issued or disapproved.
E. Permits being renewed are subject to the same procedural
requirements, including those for public participation, affected program and US
EPA review, that apply to initial permit issuance.
F. The Department shall state within the draft permit the
legal and factual basis for the draft permit conditions (including references
to the applicable statutory or regulatory provisions).
G. The Department shall grant or disapprove the permit based
on information contained in the Department's administrative record. The administrative record shall consist of
the application, any additional information submitted by the applicant, any
evidence or written comments submitted by interested persons, any other
evidence considered by the Department, and, if a public hearing is held, the
evidence submitted at the hearing.
H. If the Department grants or disapproves a permit or
permit modification, the Department shall notify the applicant by certified
mail of the action taken and the reasons therefor. If the Department grants a permit or
modification, the Department shall mail the permit or modification, including
all terms and conditions, to the applicant by certified mail.
I. Voluntary Discontinuation. Upon request by the permittee, the Department
shall permanently discontinue a Part 70 (20.2.70 NMAC) permit. Permit discontinuance terminates the
permittee's right to operate the source under the permit. The Department shall confirm the permit
discontinuance by certified letter to the permittee.
J. No permit shall be issued by failure of the Department
to act on an application or renewal.
[11/30/95;
20.2.70.400 NMAC - Rn, 20 NMAC 2.70.400, 06/14/02]
20.2.70.401 PUBLIC PARTICIPATION:
A. Proceedings for all permit issuances (including
renewals), significant permit modifications, reopenings,
revocations and terminations, and all modifications to the Department's list of
insignificant activities, shall include public notice and provide an opportunity
for public comment. The Department shall
provide thirty (30) days for public and affected program comment. The Department may hold a public hearing on
the draft permit, a proposal to suspend, reopen, revoke or terminate a permit,
or for any reason it deems appropriate, and shall hold such a hearing in the
event of significant public interest.
The Department shall give notice of any public hearing at least thirty
(30) days in advance of the hearing.
B. Public notice and notice of public hearing shall be given
by publication in a newspaper of general circulation in the area where the
source is located or in a state publication designed to give general public
notice, to persons on a mailing list developed by the Department, including
those who request in writing to be on the list, and by other means if necessary
to assure adequate notice to the affected public.
C. The public notice shall identify:
(1) The affected facility;
(2) The names and addresses of the applicant
or permittee and its owners;
(3) The name and address of the Department;
(4) The activity or activities involved in the
permit action;
(5) The emissions change(s) involved in any
permit modification;
(6) The name, address and telephone number of
a person from whom interested persons may obtain additional information,
including copies of the permit draft, the application, and relevant supporting
materials;
(7) A brief description of the comment
procedures required by the Department; and
(8) As appropriate, a statement of procedures
to request a hearing, or the time and place of any scheduled hearing.
D. Notice of public hearing shall identify:
(1) The affected facility;
(2) The names and addresses of the applicant
or permittee and its owners;
(3) The name and address of the Department;
(4) The activity or activities involved in the
permit action;
(5) The name, address and telephone number of
a person from whom interested persons may obtain additional information;
(6) A brief description of hearing procedures;
and
(7) The time and place of the scheduled
hearing.
E. Public hearings shall be held in the geographic area
likely to be impacted by the source. The
time, date, and place of the hearing shall be determined by the
Department. The Department shall appoint
a hearing officer. A transcript of the
hearing shall be made at the request of either the Department or the applicant
and at the expense of the person requesting the transcript. At the hearing, all interested persons shall
be given a reasonable chance to submit data, views or arguments orally or in
writing and to examine witnesses testifying at the hearing.
F. The Department shall keep a record of the commenters and
also of the issues raised during the public participation process so that the
Administrator may fulfill his or her obligation under section 505(b)(2) of the
Federal Act to determine whether a citizen petition may be granted. Such records shall be available to the public
upon request.
G. The Department shall provide such notice and opportunity
for participation by affected programs as is provided for by 20.2.70.402 NMAC.
[11/30/95;
20.2.70.401 NMAC - Rn, 20 NMAC 2.70.401, 06/14/02]
20.2.70.402 REVIEW BY THE ADMINISTRATOR AND
AFFECTED PROGRAMS:
A. Notification: The
Department shall not issue an operating permit (including permit renewal or
reissuance), minor permit modification or significant
permit modification, until affected programs and the Administrator have had an
opportunity to review the proposed permit as required under this section. Permits for source categories waived by the
Administrator from this requirement and any permit terms or conditions which
are not required under the Federal Act or under any of its requirements are not
subject to Administrator review or approval.
(1) Within five (5) days of notification by
the Department that the application has been determined complete, the applicant
shall provide a copy of the complete permit application (including the
compliance plan and all additional materials submitted to the Department)
directly to the Administrator. The
permit or permit modification shall not be issued without certification to the
Department of such notification. The
Department shall provide to the Administrator a copy of each draft permit, each
proposed permit, each final operating permit, and any other relevant
information requested by the Administrator.
(2) The Department shall provide notice of
each draft permit to any affected program on or before the time that the
Department provides this notice to the public under 20.2.70.401 NMAC, except to
the extent that minor permit modification procedures require the timing of the
notice to be different.
(3) The Department shall keep for five (5)
years such records and submit to the Administrator such information as the
Administrator may reasonably require to ascertain
whether the state program complies with the requirements of the Federal Act or
related applicable requirements.
B. Responses to Objections:
(1) No permit for which an application must be
transmitted to the Administrator under this Part shall be issued by the
Department if the Administrator, after determining that issuance of the
proposed permit would not be in compliance with applicable requirements,
objects to such issuance in writing within forty-five (45) days of receipt of
the proposed permit and all necessary supporting information.
(2) If the Administrator does not object in
writing under paragraph (1) of subsection B of 20.2.70.402 NMAC, any person
may, within sixty (60) days after the expiration of the Administrator's 45-day
review period, petition the Administrator to make such objection. Any such petition shall be based only on
objections to the permit that were raised with reasonable specificity during
the public comment period provided for in 20.2.70.401 NMAC, unless the
petitioner demonstrates that it was impracticable to raise such objections
within such period, or unless the grounds for such objection arose after such
period. If the Administrator objects to
the permit as a result of a petition filed under this paragraph, the Department
shall not issue the permit until the Administrator's objection has been
resolved, except that a petition for review does not stay the effectiveness of
a permit or its requirements if the permit was issued after the end of the 45-day
review period and prior to the Administrator's objection.
(3) The Department, as part of the submittal
of the proposed permit to the Administrator (or as soon as possible after the
submittal for minor permit modification procedures allowed under subsection B
of 20.2.70.404 NMAC), shall notify the Administrator and any affected program
in writing of any refusal by the Department to accept all recommendations for
the proposed permit that the affected program submitted during the public or
affected program review period. The
notice shall include the Department's reasons for not accepting any such
recommendation. The Department is not
required to accept recommendations that are not based on federally enforceable
applicable requirements.
[11/30/95;
20.2.70.402 NMAC - Rn, 20 NMAC 2.70.402, 06/14/02]
20.2.70.403 PETITIONS FOR REVIEW OF FINAL ACTION:
A. Hearing before the board:
(1) Any person who participated in a
permitting action before the department and who is adversely affected by such
permitting action may file a petition for hearing before the board. For the purposes of this section, permitting
action shall include the failure of the department to take final action on an
application for a permit (including renewal) or permit modification within the
time specified in this part.
(2) The petition shall be made in writing to
the board within thirty (30) days from the date notice is given of the
department's action and shall specify the portions of the permitting action to
which the petitioner objects, certify that a copy of the petition has been
mailed or hand-delivered as required by this paragraph, and attach a copy of
the permitting action for which review is sought. Unless a timely request for hearing is made,
the decision of the department shall be final.
The petition shall be copied simultaneously to the department upon
receipt of the appeal notice. If the
petitioner is not the applicant or permittee, the petitioner shall mail or hand-deliver
a copy of the petition to the applicant or permittee. The department shall certify the
administrative record to the board.
(3) If a timely request for hearing is made,
the board shall hold a hearing within sixty (60) days of receipt of the
petition in accordance with New Mexico Air Quality Control Act section 74-2-7
NMSA 1978.
B. Judicial review:
(1) Any person who is adversely affected by an
administrative action taken by the board pursuant to subsection A of
20.2.70.403 NMAC may appeal to the Court of Appeals in accordance with New
Mexico Air Quality Control Act section 74-2-9 NMSA 1978. Petitions for judicial review must be filed
no later than thirty (30) days after the administrative action.
(2) The judicial review provided for by
20.2.70.403 NMAC shall be the exclusive means for obtaining judicial review of
the terms and conditions of the permit.
[11/30/95;
20.2.70.403 NMAC Rn,
20 NMAC 2.70.403, 06/14/02; A, 08/01/08]
20.2.70.404 PERMIT
MODIFICATIONS:
A. Administrative Permit Amendments:
(1) An administrative permit amendment is one
that:
(a) Corrects typographical errors;
(b) Provides for a minor administrative change at
the source, such as a change in the address or phone number of any person
identified in the permit;
(c)
Incorporates a change in the permit solely involving the retiring of an
emissions unit;
(d) Requires more frequent monitoring or
reporting by the permittee; or
(e) Any other type of change which has been
determined by the Department and the Administrator to be similar to those in
this paragraph.
(2) Changes in ownership or operational
control of a source may be made as administrative amendments provided that:
(a) A written agreement, containing a specific
date for transfer of permit responsibility, coverage, and liability between the
current and new permittee, has been submitted to the Department, and either the
Department has determined that no other change in the permit is necessary, or
changes deemed necessary by the Department have been made;
(b) The new owners have submitted the
application information required in paragraph (2) of subsection D of
20.2.70.300 NMAC;
(c) No grounds exist for permit termination,
as set out in subparagraphs (b) and (c) of paragraph (3) of subsection A of
20.2.70.405 NMAC; and
(d) The permittee has published a public
notice of the change in ownership of the source in a newspaper of general
circulation in the area where the source is located.
(3) The Department may incorporate
administrative permit amendments without providing notice to the public or
affected programs, provided that it designates any such permit modifications as
administrative permit amendments and submits a copy of the revised permit to
the Administrator.
(4) The Department shall take no more than
sixty (60) days from receipt of a request for an administrative permit
amendment to take final action on such request.
The permittee may implement the changes outlined in subparagraphs (a)
through (d) of paragraph (1) of subsection A of 20.2.70.404 NMAC immediately
upon submittal of the request for the administrative amendment. The permittee may implement the changes
outlined in subparagraph (e) of paragraph (1) of subsection A of 20.2.70.404
NMAC or paragraph (2) of subsection A of 20.2.70.404 NMAC upon approval of the
administrative amendment by the Department.
B. Minor Permit Modifications:
(1) Minor permit modification procedures may
be used only for those permit modifications that:
(a) Do not violate any applicable requirement;
(b) Do not involve relaxation of existing
monitoring, reporting, or recordkeeping requirements in the permit;
(c) Do not require or change a case-by-case
determination of an emission limitation or other standard, or a source-specific
determination for temporary sources of ambient impacts, or a visibility or
increment analysis;
(d) Do not seek to establish or change a
permit term or condition for which there is no corresponding underlying
applicable requirement and that the permittee has assumed to avoid an
applicable requirement to which the source would otherwise be subject. Such terms and conditions include any
federally enforceable emissions cap assumed to avoid classification as a title
I modification and any alternative emissions limit approved pursuant to
regulations promulgated under section 112(i)(5) of
the Federal Act;
(e) Are not title I modifications; and
(f) Are not required by the Department to be
processed as a significant modification pursuant to subsection C of 20.2.70.404
NMAC.
(2) A permittee shall not submit multiple
minor permit modification applications that may conceal a larger modification
that would not be eligible for minor permit modification procedures. The Department may, at its discretion,
require that multiple related minor permit modification applications be submitted
as a significant permit modification.
(3) An application requesting the use of minor
permit modification procedures shall meet the requirements of subsections C and
D of 20.2.70.300 NMAC and shall include:
(a) A description of the change, the emissions
resulting from the change, and any new applicable requirements that will apply
if the change occurs;
(b) The applicant's suggested draft permit;
(c) Certification by a responsible official,
consistent with subsection E of 20.2.70.300 NMAC, that the proposed
modification meets the criteria for use of minor permit modification procedures
and a request that such procedures be used; and
(d) If
the requested permit modification would affect existing compliance plans or
schedules, related progress reports, or certification of compliance
requirements, an outline of such effects.
(4) The Department shall, within thirty (30)
days after its receipt of an application for a minor permit modification,
review such application for completeness.
Unless the Department determines that an application is not complete,
requests additional information or otherwise notifies the applicant of
incompleteness within thirty (30) days of receipt of an application, the
application shall be deemed complete. If
the application is judged complete, a certified letter to that effect shall be
sent to the applicant. If the
application is judged incomplete a certified letter shall be sent to the
applicant stating what additional information or points of clarification are
necessary to judge the application complete.
(5) Within five (5) working days of
notification by the Department that the minor permit modification application
has been determined complete, the applicant shall meet its obligation under
subsection A of 20.2.70.402 NMAC to notify the Administrator of the requested
permit modification. The Department
promptly shall send any notice required under paragraph (2) of subsection A of
20.2.70.402 NMAC and subsection B of 20.2.70.402 NMAC to the Administrator and
affected programs.
(6) The permittee may make the change proposed
in its minor permit modification application immediately after such application
is deemed complete. After the permittee
makes the change allowed by the preceding sentence, and until the Department
takes any of the actions specified in paragraph (7) of subsection B of
20.2.70.404 NMAC below, the permittee must comply with both the applicable
requirements governing the change and the proposed permit terms and
conditions. During this time period, the
permittee need not comply with the existing permit terms and conditions it
seeks to modify. If the permittee fails
to comply with its proposed permit terms and conditions during this time
period, the existing permit terms and conditions it seeks to modify may be
enforced against it.
(7) The Department may not issue a final minor
permit modification until after the Administrator's 45-day review period of the
proposed permit modification or until US EPA has notified the Department that
the Administrator will not object to issuance of the permit modification, although
the Department may approve the permit modification prior to that time. Within ninety (90) days of ruling the
application complete under minor permit modification procedures or within
fifteen (15) days after the end of the Administrator's 45-day review period,
whichever is later, the Department shall:
(a) Issue the permit modification as it was
proposed;
(b) Disapprove the permit modification
application;
(c) Determine that the requested modification
does not meet the minor permit modification criteria and should be reviewed
under the significant modification procedures; or
(d) Revise the draft permit modification and transmit
to the Administrator the new proposed permit modification as required by
subsection A of 20.2.70.402 NMAC.
C. Significant Permit Modifications:
(1) A significant permit modification is:
(a) Any
revision to an operating permit that does not meet the criteria under the
provisions for administrative permit amendments under subsection A of
20.2.70.404 NMAC or for minor permit modifications under subsection B of
20.2.70.404 NMAC above;
(b) Any modification that would result in any
relaxation in existing monitoring, reporting or recordkeeping permit terms or
conditions;
(c) Any modification for which action on the
application would, in the judgment of the Department, require decisions to be
made on significant or complex issues; and
(d) Changes in ownership which do not meet the
criteria of paragraph (2) of subsection A of 20.2.70.404 NMAC.
(2) For significant modifications which are
not required to undergo preconstruction permit review and approval, changes to
the source which qualify as significant permit modifications shall not be made
until the Department has issued the operating permit modification.
(3) For significant modifications which have
undergone preconstruction permit review and approval, the permittee shall:
(a) Before commencing operation, notify the
Department in writing of any applicable requirements and operating permit terms
and conditions contravened by the modification, emissions units affected by the
change, and allowable emissions increases resulting from the modification; and
(b) Within twelve (12) months after commencing
operation, file a complete operating permit modification application.
(4) Where an existing operating permit would
specifically prohibit such change, the permittee must obtain an operating
permit modification before commencing operation or implementing the change.
(5) Significant permit modifications shall
meet all requirements of this Part for permit issuance, including those for
applications, public participation, review by affected programs and review by
the Administrator.
(6) The Department shall complete review on
the majority of significant permit modification applications within nine (9)
months after the Department rules the applications complete.
D. Modifications to Acid Rain Sources: Administrative permit amendments and permit
modifications for purposes of the acid rain portion of the permit shall be
governed by regulations promulgated by the Administrator under title IV of the
Federal Act.
[11/30/95;
20.2.70.404 NMAC - Rn, 20 NMAC 2.70.404, 06/14/02]
20.2.70.405 PERMIT
REOPENING, REVOCATION OR TERMINATION:
A. Action by the Department:
(1) Each permit shall include provisions
specifying the conditions under which the permit will be reopened prior to the
expiration of the permit. A permit shall
be reopened and revised for any of the following, and may be revoked and
reissued for subparagraphs (c) or (d) of the following:
(a) Additional applicable requirements under
the Federal Act become applicable to a major source with a remaining permit
term of three (3) or more years. Such a
reopening shall be completed not later than eighteen (18) months after
promulgation of the applicable requirement.
No such reopening is required if the effective date of the requirement
is later than the date on which the permit is due to expire, unless the
original permit or any of its terms or conditions have been extended past the
expiration date of the permit pursuant to subsection D of 20.2.70.400 NMAC;
(b) Additional requirements (including excess
emissions requirements) become applicable to a source under the acid rain
program promulgated under title IV of the Federal Act. Upon approval by the Administrator, excess
emissions offset plans shall be deemed to be incorporated into the permit;
(c) The Department or the Administrator
determines that the permit contains a material mistake or that inaccurate
statements were made in establishing the terms or conditions of the permit; or
(d) The Department or the Administrator
determines that the permit must be revised or revoked and reissued to assure
compliance with the applicable requirements.
(2) Proceedings to reopen and revise, or
revoke and reissue, a permit shall affect only those parts of the permit for
which cause to reopen or revoke exists. Units
for which permit conditions have been revoked shall not be operated until
permit reissuance. Reopenings
shall be made as expeditiously as practicable.
(3) A permit, or an authorization to operate
under a general permit, may be terminated when:
(a) The permittee fails to meet the
requirements of an approved compliance plan;
(b) The permittee has been in significant or
repetitious non-compliance with the operating permit terms or conditions;
(c) The applicant or permittee has exhibited a
history of willful disregard for environmental laws of any state or Tribal
authority, or of the United States;
(d) The applicant or permittee has knowingly
misrepresented a material fact in any application, record,
report, plan, or other document filed or required to be maintained under the
permit;
(e) The permittee falsifies, tampers with or
renders inaccurate any monitoring device or method required to be maintained
under the permit;
(f) The permittee fails to pay fees required
under the fee schedule in 20.2.71 NMAC (Operating Permit Emission Fees); or
(g) The Administrator has found that cause
exists to terminate the permit.
(4) The Department shall, by certified mail, provide
a notice of intent to the permittee at least thirty (30) days in advance of the
date on which a permit is to be reopened or revoked, or terminated, except that
the Department may provide a shorter time period in the case of an emergency. The notice shall state that the permittee
may, within 30 (thirty) days of receipt, submit comments or request a hearing
on the proposed permit action.
B. Action by the Administrator: Within ninety (90) days, or longer if the
Administrator extends this period, after receipt of written notification that
the Administrator has found that cause exists to terminate, modify or revoke
and reissue a permit, the Department shall forward to the Administrator a
proposed determination of termination, modification, or revocation and
reissuance, as appropriate. Within
ninety (90) days from receipt of an Administrator objection to a proposed
determination, the Department shall address and act upon the Administrator's
objection.
C. Compliance Orders:
Notwithstanding any action which may be taken by the Department or the
Administrator under subsections A and B of 20.2.70.405 NMAC, a compliance order
issued pursuant to New Mexico Air Quality Control Act section 74-2-12 NMSA 1978
may include a suspension or revocation of any permit or portion thereof.
[11/30/95;
20.2.70.405 NMAC - Rn, 20 NMAC 2.70.405, 06/14/02]
20.2.70.406 CITIZEN SUITS:
Pursuant to section 304 of the Federal Act, 42 USC 7604, any person may commence certain civil actions under the
Federal Act.
[11/30/95;
20.2.70.406 NMAC - Rn, 20 NMAC 2.70.406, 06/14/02]
20.2.70.407 VARIANCES:
Pursuant to New Mexico Air Quality Control Act section 74-2-8 NMSA 1978,
applicants and permittees may seek a variance from the non-federally
enforceable provisions of this Part.
[11/30/95;
20.2.70.407 NMAC - Rn, 20 NMAC 2.70.407, 06/14/02]
20.2.70.408 ENFORCEMENT:
Notwithstanding any other provision in the New Mexico State
Implementation Plan approved by the Administrator, any credible evidence may be
used for the purpose of establishing whether a person has violated or is in
violation of the terms or conditions of a permit issued pursuant to this Part.
A. Information from the use of the following methods is
presumptively credible evidence of whether a violation has occurred at the
source:
(1) A monitoring or information gathering
method approved for the source pursuant to this Part and incorporated in an
operating permit; or
(2) Compliance methods specified in the New
Mexico State Implementation Plan.
B. The following testing, monitoring or information
gathering methods are presumptively credible testing, monitoring or information
gathering methods:
(1) Any federally enforceable monitoring or
testing methods, including those in 40 CFR parts 51, 60, 61 and 75; and
(2) Other testing, monitoring or information
gathering methods that produce information comparable to that produced by any
method under subsection A of 20.2.70.408 NMAC or paragraph (1) of subsection B
of 20.2.70.408 NMAC.
[11/30/95;
20.2.70.408 NMAC - Rn, 20 NMAC 2.70.408, 06/14/02]
20.2.70.409
to 20.2.70.499 [RESERVED]
20.2.70.500
to 20.2.70.599 [RESERVED]
HISTORY
OF 20.2.70 NMAC:
Pre NMAC
History: The material in this part was derived from that
previously filed with the commission of public records - state records center
and archives.
EIB/AQCR
770, Air Quality Control Regulation 770 - Operating Permits, filed 11/15/93.
History
of Repealed Material: [RESERVED]
Other
History:
EIB/AQCR
770, Air Quality Control Regulation 770 - Operating Permits, filed 11/15/93 was
renumbered into first version of the
New Mexico Administrative Code as 20 NMAC 2.70, Operating Permits, filed
10/30/95;
20 NMAC
2.70, Operating Permits, filed 10/30/95 was renumbered, reformatted and replaced by 20.2.70 NMAC, Operating
Permits, effective 06/14/02.