Regulatory Text: 
NEW MEXICO ADMINISTRATIVE CODE (NMAC)

TITLE 20   ENVIRONMENTAL PROTECTION

CHAPTER 2   AIR QUALITY (STATEWIDE)

PART 74 (20.2.74 NMAC)  PERMITS - PREVENTION OF SIGNIFICANT DETERIORATION (PSD)
As amended by the New Mexico Environmental Improvement Board (NMEIB) on December 6, 2005 and filed with the New Mexico State Records Center on December 23, 2005 effective January 22, 2006.
Approved by EPA September 5, 2007 (72 FR 50879) effective October 5, 2007 (NMd20).


OUTLINE:
20.2.74.1   ISSUING AGENCY
20.2.74.2   SCOPE  
20.2.74.3   STATUTORY AUTHORITY
20.2.74.4   DURATION
20.2.74.5   EFFECTIVE DATE  
20.2.74.6   OBJECTIVE
20.2.74.7   DEFINITIONS
20.2.74.8   AMENDMENT AND SUPERSESSION OF PRIOR REGULATIONS
20.2.74.9   DOCUMENTS  
20.2.74.10   SEVERABILITY
20.2.74.11   CONSTRUCTION
20.2.74.12   SAVINGS CLAUSE
20.2.74.13   COMPLIANCE WITH OTHER REGULATIONS
20.2.74.14   LIMITATION OF DEFENSE
20.2.74.15 to 20.2.74.107  [RESERVED]
20.2.74.108   RESTRICTIONS ON AREA CLASSIFICATIONS
20.2.74.109 to 20.2.74.199  [RESERVED]
20.2.74.200   APPLICABILITY
20.2.74.201   EXEMPTIONS
20.2.74.202 to 20.2.74.299  [RESERVED]
20.2.74.300   Obligations of Owners or Operators of Sources
20.2.74.301   Source Information
20.2.74.302   Control Technology Requirements
20.2.74.303   Ambient Impact Requirements
20.2.74.304   Additional Impact Requirements
20.2.74.305   Ambient Air Quality Modeling
20.2.74.306   Monitoring Requirements
20.2.74.307   Temporary Source Exemptions
20.2.74.308 to 20.2.74.319  [RESERVED]
20.2.74.320   ACTUALS PLANTWIDE APPLICABILITY LIMITS (PALs)
20.2.74.321 to 20.2.74.399  [RESERVED]
20.2.74.400   PUBLIC PARTICIPATION AND NOTIFICATION
20.2.74.401   STACK HEIGHT CREDIT
20.2.74.402   EXCLUSIONS FROM INCREMENT CONSUMPTION
20.2.74.403   ADDITIONAL REQUIREMENTS FOR SOURCES IMPACTING CLASS I FEDERAL AREAS
20.2.74.404 to 20.2.74.500  [RESERVED]
20.2.74.501   TABLE 1 - PSD SOURCE CATEGORIES
20.2.74.502   TABLE 2 - SIGNIFICANT EMISSION RATES
20.2.74.503   TABLE 3 - SIGNIFICANT MONITORING CONCENTRATIONS.
20.2.74.504   TABLE 4 - ALLOWABLE PSD INCREMENTS
20.2.74.505   TABLE 5 - MAXIMUM ALLOWABLE INCREASES FOR CLASS I WAIVERS
20.2.74.506   TABLE 6 - MAXIMUM ALLOWABLE INCREASE FOR SULFUR DIOXIDE WAIVER BY GOVERNOR


NOTE: Dates in brackets (“[]”) are State effective dates.


20.2.74.1   ISSUING AGENCY:  New Mexico Environmental Improvement Board

[07/20/95; 20.2.74.1 NMAC - Rn, 20 NMAC 2.74.100, 10/31/02]


20.2.74.2   SCOPE:  Any person constructing any new major stationary source or major modification as defined in this Part, that emits or will emit regulated pollutants in an attainment or unclassified area.

[07/20/95; 20.2.74.2 NMAC - Rn, 20 NMAC 2.74.101, 10/31/02]


20.2.74.3   STATUTORY AUTHORITY:  The Environmental Improvement Board “shall promulgate regulations and standards in...air quality management” (NMSA 1978, section 74-1-8.A) and “the environmental improvement board...shall adopt...regulations to attain and maintain national ambient air quality standards and prevent or abate air pollution...” (NMSA 1978, section 74-2-5.B).

[07/20/95; 20.2.74.3 NMAC - Rn, 20 NMAC 2.74.102, 10/31/02]
 

20.2.74.4   DURATION:  Permanent.
[07/20/95; 20.2.74.4 NMAC - Rn, 20 NMAC 2.74.103, 10/31/02]
 

20.2.74.5   EFFECTIVE DATE:  July 20, 1995, except where a later date is cited at the end of a section or paragraph.

[07/20/95; 01/01/00; 20.2.74.5 NMAC - Rn, 20 NMAC 2.74.104, 10/31/02]

[The latest effective date of any section in this Part is 1/22/06.]


20.2.74.6   OBJECTIVE:  The purpose of this Part is to require any person constructing any new major stationary source or major modification as defined in this Part, that emits or will emit regulated pollutants in an attainment or unclassified area, to obtain a permit from the Department in accordance with the requirements of this Part prior to the construction or modification.
[07/20/95; 20.2.74.6 NMAC - Rn, 20 NMAC 2.74.105, 10/31/02]
 

20.2.74.7   DEFINITIONS:  Terms used but not defined in this part shall have the meaning given them by 20.2.2 NMAC (Definitions) (formerly AQCR 100).  As used in this part the following definitions shall apply.

     A.  “Act” means the Federal Clean Air Act, as amended, 42 U. S. C. Sections 7401 et seq.

     B.  “Actual emissions” means the actual rate of emissions of a regulated new source review pollutant from an emissions unit, as determined in accordance with Paragraphs (2) through (4) of this subsection.

          (1)  This definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under 20.2.74.320 NMAC.  Instead, Subsections G and AQ of this section shall apply for those purposes.

          (2)  In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a consecutive 24-month period which precedes the particular date and which is representative of normal source operation.  The department shall allow the use of a different time period upon a determination that it is more representative of normal source operation.  Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

          (3)  The department may presume that source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit.

          (4)  For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.

     C.  “Administrator” means the administrator of the U.S. Environmental Protection Agency (EPA) or an authorized representative.

     D.  “Adverse impact on visibility” means visibility impairment which interferes with the management, protection, preservation, or enjoyment of the visitor's visual experience of the class I federal area.  This determination must be made on a case-by-case basis taking into account the geographic extent, intensity, duration, frequency, and time of the visibility impairments and how these factors correlate with the following:  1) times of visitor use of the class I federal area; and 2) the frequency and timing of natural conditions that reduce visibility.  This term does not include effects on integral vistas as defined in 40 CFR 51.301 Definitions.

     E.  “Allowable emissions” means the emissions rate of a stationary source calculated using the maximum rated capacity of the source (unless the source is subject to federally enforceable limits which restrict the operating rate, or hours of operation, or both) and the most stringent of the following:

          (1)  the applicable standards as set forth in 40 CFR Parts 60 and 61;

          (2)  the applicable state implementation plan emissions limitation, including those with a future compliance date; or

          (3)  the emissions rate specified as a federally enforceable permit condition, including those with a future compliance date.

     F.  “Attainment area” means, for any air pollutant, an area which is shown by monitored data or which is calculated by air quality modeling not to exceed any national ambient air quality standard for such pollutant, and is so designated under Section 107 (d) (1) (D) or (E) of the act.

     G.  “Baseline actual emissions” means the rate of emissions, in tons per year, of a regulated new source review pollutant, as determined in accordance with the following.

          (1)  For any existing electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 5-year period immediately preceding when the owner or operator begins actual construction of the project.  The department shall allow the use of a different time period upon a determination that it is more representative of normal source operation.

               (a)  The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.

               (b)  The average rate shall be adjusted downward to exclude any non-compliant emissions that occurred while the source was operating above an emission limitation that was legally enforceable during the consecutive 24-month period.

               (c)  For a regulated new source review pollutant, when a project involves multiple emissions units, only one consecutive 24-month period must be used to determine the baseline actual emissions for the emissions units being changed.  A different consecutive 24-month period can be used For each regulated new source review pollutant.

               (d)  The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by Subparagraph (b) of this paragraph.

          (2)  For an existing emissions unit (other than an electric utility steam generating unit), baseline actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 10-year period immediately preceding either the date the owner or operator begins actual construction of the project, or the date a complete permit application is received by the department for a permit required either under this part or under a plan approved by the administrator, whichever is earlier, except that the 10-year period shall not include any period earlier than November 15, 1990.

               (a)  The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.

               (b)  The average rate shall be adjusted downward to exclude any non-compliant emissions that occurred while the source was operating above an emission limitation that was legally enforceable during the consecutive 24-month period.

               (c)  The average rate shall be adjusted downward to exclude any emissions that would have exceeded an emission limitation with which the major stationary source must currently comply, had such major stationary source been required to comply with such limitations during the consecutive 24-month period.  However, if an emission limitation is part of a maximum achievable control technology standard that the administrator proposed or promulgated under 40 CFR Part 63, the baseline actual emissions need only be adjusted if the state has taken credit for such emissions reductions in an attainment demonstration or maintenance plan consistent with the requirements of 40 CFR 51.165(a)(3)(ii)(G).

               (d)  For a regulated new source review pollutant, when a project involves multiple emissions units, only one consecutive 24-month period must be used to determine the baseline actual emissions for the emissions units being changed.  A different consecutive 24-month period can be used for each regulated new source review pollutant.

               (e)  The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by Subparagraphs (b) and (c) of this paragraph.

          (3)  For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit's potential to emit.

          (4)  For a PAL for a stationary source, the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in Paragraph (1) of this subsection, for other existing emissions units in accordance with the procedures contained in Paragraph (2) of this subsection, and for a new emissions unit in accordance with the procedures contained in Paragraph (3) of this subsection.

     H.  “Baseline area” means all lands designated as attainment or unclassifiable in which the major source or major modification would construct or would have an air quality impact equal to or greater than one microgram per cubic meter (annual average) of the pollutant for which the minor source baseline date is established.  The major source or major modification establishes the minor source baseline date (see the definition “minor source baseline date” in this part).  Lands are designated as attainment or unclassifiable under Section 107(d)(1)(D) or (E) of the act within each federal air quality control region in the state of New Mexico.  Any baseline area established originally for TSP (total suspended particulates) increments shall remain in effect and shall apply for purposes of determining the amount of available PM-10 increments.  A TSP baseline area shall not remain in effect if the department rescinds the corresponding minor source baseline date (see “minor source baseline date” in this part).

     I.  “Baseline concentration” means that ambient concentration level that exists in the baseline area at the time of the applicable minor source baseline date.

          (1)  A baseline concentration is determined for each pollutant for which a minor source baseline date is established and shall include:

               (a)  the actual emissions, as defined in this section, representative of sources in existence on the applicable minor source baseline date, except as provided in Paragraph (2) of this subsection;

               (b)  the allowable emissions of major stationary sources that commenced construction before the major source baseline date, but were not in operation by the applicable minor source baseline date.

          (2)  The following will not be included in the baseline concentration and will affect the applicable maximum allowable increase(s):

               (a)  actual emissions, as defined in this section, from any major stationary source on which construction commenced after the major source baseline date; and

               (b)  actual emissions increases and decreases, as defined in Subsection B of this section, at any stationary source occurring after the minor source baseline date.

     J.  “Begin actual construction” means, in general, initiation of physical onsite construction activities on an emissions unit which are of a permanent nature.  Such activities include, but are not limited to, installation of building supports and foundations, laying underground pipework and construction of permanent storage structures.  With respect to a change in method of operations, this term refers to those on-site activities other than preparatory activities which mark the initiation of the change.

     K.  “Best Available Control Technology (BACT)” means an emissions limitation (including a visible emission standard) based on the maximum degree of reduction for each regulated pollutant which would be emitted from any proposed major stationary source or major modification, which the secretary determines is achievable on a case-by-case basis.  This determination will take into account energy, environmental, and economic impacts and other costs.  The determination must be achievable for such source or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques for control of such pollutants.  In no event shall application of best available control technology result in emissions of any pollutant which would exceed the emissions allowed by any applicable standard under 40 CFR Parts 60 and 61.  If the secretary determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment, work practice, operational standard, or combination thereof, may be prescribed instead to satisfy the requirement for the application of best available control technology.  Such standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design, equipment, work practice, or operation, and shall provide for compliance by means which achieve equivalent results.

     L.  “Building, structure, facility, or installation” means all of the pollutant emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control).  Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same “major group” (i.e., which have the same first two digit code) as described in the standard industrial classification (SIC) manual, 1972, as amended by the 1977 supplement (U. S. government printing office stock numbers 4101-0066 and 003-005-00176-0, respectively) or any superseding SIC manual.

     M.  “Class I federal area” means any federal land that is classified or reclassified as “class I” as described in 20.2.74.108 NMAC.

     N.  “Commence” means, as applied to construction of a major stationary source or major modification, that the owner or operator has all necessary preconstruction approvals or permits and has:

          (1)  Begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or

          (2)  Entered into binding agreements or contractual obligations, which cannot be cancelled or modified without substantial loss to the owner or operator, to undertake and complete, within a reasonable time, a program of actual construction.

     O.  “Construction” means any physical change or change in the method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) that would result in a change in emissions.

     P.  “Continuous emissions monitoring system (CEMS)” means all of the equipment that may be required to meet the data acquisition and availability requirements of this section, to sample, condition (if applicable), analyze, and provide a record of emissions on a continuous basis.

     Q.  “Continuous emissions rate monitoring system (CERMS)” means the total equipment required for the determination and recording of the pollutant mass emissions rate (in terms of mass per unit of time).

     R.  “Continuous parameter monitoring system (CPMS)” means all of the equipment necessary to meet the data acquisition and availability requirements of this section, to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O2 or CO2 concentrations), and to record average operational parameter value(s) on a continuous basis.

     S.  “Department” means the New Mexico environment department.

     T.  “Electric utility steam generating unit” means any steam electric generating unit that is constructed for the purpose of supplying more than one-third of its potential electric output capacity and more than 25 megawatts electrical output to any utility power distribution system for sale.  Any steam supplied to a steam distribution system for the purpose of providing steam to a steam-electric generator that would produce electrical energy for sale is also considered in determining the electrical energy output capacity of the affected facility.

     U.  “Emissions unit” means any part of a stationary source that emits or would have the potential to emit any regulated new source review pollutant and includes an electric utility steam generating unit as defined in this section.  For purposes of this section, there are two types of emissions units as described in the following.

          (1)  A new emissions unit is any emissions unit that is (or will be) newly constructed and that has existed for less than 2 years from the date such emissions unit first operated.

          (2)  An existing emissions unit is any emissions unit that does not meet the requirements in Paragraph (1) of this subsection.  A replacement unit, as defined in this section, is an existing unit.

     V.  “Federal land manager” means, with respect to any lands in the United States, a federal level cabinet secretary of a federal level department (e.g. interior dept.) with authority over such lands.

     W.  “Federally enforceable” means all limitations and conditions which are enforceable by the administrator, including:

          (1)  those requirements developed pursuant to 40 CFR Parts 60 and 61;

          (2)  requirements within any applicable state implementation plan;

          (3)  any permit requirements established pursuant to 40 CFR 52.21; or

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

     X.  “Fugitive emissions” means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

     Y.  “High terrain” means any area having an elevation nine hundred (900) feet or more above the base of a source's stack.

     Z.  “Indian governing body” means the governing body of any tribe, band, or group of Indians subject to the jurisdiction of the United States and recognized by the United States as possessing power of self-government.

     AA.  “Innovative Control Technology” means any system of air pollution control that has not been adequately demonstrated in practice.  But such system would have a substantial likelihood of achieving greater continuous emissions reduction than any control system in current practice or achieving at least comparable reductions at lower cost in terms of energy, economics, or non-air quality environmental impacts.

     AB.  “Low terrain” means any area other than high terrain.

     AC.  “Lowest achievable emission rate” means, for any source, the more stringent rate of emissions based on the following:

          (1)  the most stringent emissions limitation which is contained in the implementation plan of any state for such class or category of stationary source, unless the owner or operator of the proposed stationary source demonstrates that such limitations are not achievable; or

          (2)  the most stringent emissions limitation which is achieved in practice by such class or category of stationary source; this limitation, when applied to a modification, means the lowest achievable emissions rate for the new or modified emissions units within the stationary source.  In no event shall the application of this term permit a proposed new or modified stationary source to emit any pollutant in excess of the amount allowable under an applicable new source standard of performance.

     AD.  “Major modification” means any physical change in or change in the method of operation of a major stationary source that would result in: a significant emissions increase (as defined in of this section) of a regulated new source review pollutant (as defined in this section); and a significant net emissions increase of that pollutant from the major stationary source.  Any significant emissions increase (as defined in this section) from any emissions units or net emissions increase (as defined in this section) at a major stationary source that is significant for volatile organic compounds shall be considered significant for ozone.

          (1)  A physical change or change in the method of operation shall not include:

               (a)  routine maintenance, repair, and replacement;

               (b)  use of an alternative fuel or raw material by reason of an order under Section 2 (a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a natural gas curtailment plan pursuant to the Federal Power Act;

               (c)  use of an alternative fuel by reason of an order or rule under Section 125 of the act;

               (d)  use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste;

               (e)  use of an alternative fuel or raw material by a stationary source which:

                    (i)  the source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975 pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR 51.165 or 40 CFR 51.166; or

                    (ii)  the source is approved to use under any permit issued under 40 CFR 52.21 or under regulations approved pursuant to 40 CFR 51.166;

               (f)  an increase in the hours of operation or in the production rate, unless such change would be prohibited under any federally enforceable permit which was established after January 6, 1975, pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR 51.165 or 40 CFR 51.166;

               (g)  any change in ownership at a stationary source;

               (h)  the installation, operation, cessation, or removal of a temporary clean coal technology demonstration project, provided that the project complies with:

                    (i)  the state implementation plan for the state in which the project is located; and

                    (ii)  other requirements necessary to attain and maintain the national ambient air quality standards during the project and after it is terminated.

               (i)  the installation or operation of a permanent clean coal technology demonstration project that constitutes repowering, provided that the project does not result in an increase in the potential to emit of any regulated pollutant emitted by the unit; this exemption shall apply on a pollutant-by-pollutant basis;

               (j)  the reactivation of a very clean coal-fired electric utility steam generating unit.

          (2)  This definition shall not apply with respect to a particular regulated new source review pollutant when the major stationary source is complying with the requirements under 20.2.74.320 NMAC for a PAL for that pollutant.  Instead, the definition at Paragraph (8) of Subsection B of 20.2.74.320 NMAC shall apply.

     AE.  “Major source baseline date” means:

          (1)  in the case of particulate matter and sulfur dioxide, January 6, 1975; and

          (2)  in the case of nitrogen dioxide, February 8, 1988.
     AF.  “Major stationary source” means the following.

          (1)  Any stationary source listed in table 1 (20.2.74.501 NMAC) which emits, or has the potential to emit, emissions equal to or greater than one hundred (100) tons per year of any regulated new source review pollutant.

          (2)  Any stationary source not listed in table 1 (20.2.74.501 NMAC) and which emits or has the potential to emit two hundred fifty (250) tons per year or more of any regulated new source review pollutant.

          (3)  Any physical change that would occur at a stationary source not otherwise qualifying under Paragraphs (1) or (2) of this subsection if the change would constitute a major stationary source by itself.

          (4)  A major source that is major for volatile organic compounds shall be considered major for ozone.

          (5)  The fugitive emissions of a stationary source shall not be included in determining for any of the purposes of this section whether it is a major stationary source, unless the source belongs to one of the stationary source categories found in Table 1 (20.2.74.501 NMAC) or any other stationary source category which, as of August 7, 1980, is being regulated under Section 111 or 112 of the act.

     AG.  “Mandatory class I federal area” means any area identified in the Code of Federal Regulations (CFR), 40 CFR Part 81, Subpart D.  See 20.2.74.108 NMAC for a list of these areas in New Mexico.

     AH.  “Minor source baseline date” means the earliest date after the trigger date on which the owner or operator of a major stationary source or major modification subject to 40 CFR 52.21 or to this part submits a complete application under the relevant regulations.

          (1)  The trigger date is:

               (a)  in the case of particulate matter and sulfur dioxide, August 7, 1977; and

               (b)  in the case of nitrogen dioxide, February 8, 1988.

          (2)  Any minor source baseline date established originally for the TSP (total suspended particulates) increments shall remain in effect and shall apply for purposes of determining the amount of available PM-10 increments.  The department may rescind any TSP minor source baseline date where it can be shown, to the department 's satisfaction, that the emissions increase from the major stationary source, or the net emissions increase from the major modification, responsible for triggering that date, did not result in a significant amount of PM-10 emissions.

     AI.  “Natural conditions” includes naturally occurring phenomena that reduce visibility as measured in terms of visual range, contrast or coloration.

     AJ.  “Necessary preconstruction approvals or permits” means those permits or approvals required under federal air quality control laws and regulations and those air quality control laws and regulations which are part of the New Mexico state implementation plan.

     AK.  “Net emissions increase” means, with respect to any regulated new source review pollutant emitted by a major stationary source, the following.

          (1)  The amount by which the sum of the following exceeds zero.

               (a)  The increase in emissions from a particular physical change or change in the method of operation at a stationary source as calculated pursuant to Subsection D of 20.2.74.200 NMAC.
               (b)  Any other increases and decreases in actual emissions at the major stationary source that are contemporaneous with the particular change and are otherwise creditable.  Baseline actual emissions for calculating increases and decreases under this paragraph shall be determined as provided in Subsection G, except that Subparagraph (c) of Paragraph (1) and Subparagraph (d) of Paragraph (2) of Subsection G of this section shall not apply.

          (2)  An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if it occurs within the time period five years prior to the commencement of construction on the particular change and the date that the increase from the particular change occurs.

          (3)  An increase or decrease in actual emissions is creditable only if:

               (a)  it occurs within the time period five years prior to the commencement of construction on the particular change and the date that the increase from the particular change occurs; and

               (b)  the department has not relied on it in issuing a permit for the source under regulations approved pursuant to this section, which permit is in effect when the increase in actual emissions from the particular change occurs.

          (4)  An increase or decrease in actual emissions of sulfur dioxide, particulate matter, or nitrogen oxides that occurs before the applicable minor source baseline date is creditable only if it is required to be considered in calculating the amount of maximum allowable increases remaining available.

          (5)  An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level.

          (6)  A decrease in actual emissions is creditable only to the extent that:

               (a)  the old level of actual emissions or the old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions;

               (b)  it is enforceable as a practical matter at and after the time that actual construction on the particular change begins; and

               (c)  it has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change.

          (7)  An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant.  Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.

          (8)  Paragraph (2) of Subsection B of this section shall not apply for determining creditable increases and decreases.

     AL.  “Nonattainment area” means an area which has been designated under Section 107 of the Federal Clean Air Act as nonattainment for one or more of the national ambient air quality standards by EPA.

     AM.  “Portable stationary source” means a source which can be relocated to another operating site with limited dismantling and reassembly.

     AN.  “Potential to emit” means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design.  Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollutant 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 limitations or the effect it would have on emissions is federally enforceable.  Secondary emissions do not count in determining the potential to emit of a stationary source.

     AO.  “Predictive emissions monitoring system (PEMS)” means all of the equipment necessary to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O2 or CO2 concentrations), and calculate and record the mass emissions rate (for example, lb/hr) on a continuous basis.

     AP.  “Project” means a physical change in, or change in method of operation of, an existing major stationary source.

     AQ.  “Projected actual emissions” means the maximum annual rate, in tons per year, at which an existing emissions unit is projected to emit a regulated new source review pollutant in any one of the 5 years (12-month period) following the date the unit resumes regular operation after the project, or in any one of the 10 years following that date, if the project involves increasing the emissions unit's design capacity or its potential to emit that regulated new source review pollutant, and full utilization of the unit would result in a significant emissions increase, or a significant net emissions increase at the major stationary source.  In determining the projected actual emissions (before beginning actual construction), the owner or operator of the major stationary source:

          (1)  shall consider all relevant information, including but not limited to, historical operational data, the company's own representations, the company's expected business activity and the company's highest projections of business activity, the company's filings with the state or federal regulatory authorities, and compliance plans under the approved plan; and

          (2)  shall include fugitive emissions to the extent quantifiable and emissions associated with startups, shutdowns, and malfunctions; and

          (3)  shall exclude, in calculating any increase in emissions that results from the particular project, that portion of the unit's emissions following the project that an existing unit could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions under Subsection G of this section and that are also unrelated to the particular project, including any increased utilization due to product demand growth; or,

          (4)  in lieu of using the method set out in Paragraphs (1) through (3) of this subsection, may elect to use the emissions unit's potential to emit, in tons per year, as defined in Subsection AQ of this section.

     AR.  “Regulated new source review pollutant”, for purposes of this part, means the following:

          (1)  any pollutant for which a national ambient air quality standard has been promulgated and any constituents or precursors for such pollutants identified by the administrator (e.g., volatile organic compounds are precursors for ozone);

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

          (3)  any class I or II substance subject to a standard promulgated under or established by title VI of the act; or

          (4)  any pollutant that otherwise is subject to regulation under the act; except that any or all hazardous air pollutants either listed in Section 112 of the act or added to the list pursuant to Section 112(b)(2) of the act, which have not been delisted pursuant to Section 112(b)(3) of the act, are not regulated new source review pollutants unless the listed hazardous air pollutant is also regulated as a constituent or precursor of a general pollutant listed under Section 108 of the act.

     AS.  “Replacement unit” means an emission unit for which all of the following criteria are met.  No creditable emission reductions shall be generated from shutting down the existing emissions unit that is replaced.

          (1)  The emissions unit is a reconstructed unit within the meaning of 40 CFR 60.15(b)(1), or the emissions unit completely takes the place of an existing emissions unit.

          (2)  The emissions unit is identical to or functionally equivalent to the replaced emissions unit.

          (3)  The replacement unit does not change the basic design parameter(s) of the process unit.

          (4)  The replaced emissions unit is permanently removed from the major stationary source, otherwise permanently disabled, or permanently barred from operation by a permit that is enforceable as a practical matter.  If the replaced emissions unit is brought back into operation, it shall constitute a new emissions unit.

     AT.  “Secondary emissions” means emissions which occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself.  For the purpose of this section, secondary emissions must be specific, well defined, quantifiable, and impact the same general areas as the stationary source or modification which causes the secondary emissions.  Secondary emissions include emissions from any offsite support facility which would not be constructed or increase its emissions except as a result of the construction or operation of the major stationary source or major modification.  Secondary emissions do not include any emissions which come directly from a mobile source, such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel.

     AU.  “Secretary” means the cabinet level secretary of the New Mexico environment department or his or her successor.

     AV.  “Significant” means in reference to a net emissions increase or the potential of a source to emit air pollutants, a rate of emission that would equal or exceed any of the rates listed in table 2 (20.2.74.502 NMAC).

     AW.  “Significant emissions increase” means, for a regulated new source review pollutant, an increase in emissions that is significant (as defined in Subsection AV of this section) for that pollutant.

     AX.  “Stationary source” means any building, structure, facility, or installation which emits, or may emit, any regulated new source review pollutant.

     AY.  “Temporary source” means a stationary source which changes its location or ceases to exist within two years from the date of initial start of operations.

     AZ.  “Visibility impairment” means any humanly perceptible change in visibility (visual range, contrast, coloration) from that which would have existed under natural conditions.

     BA.  “Volatile organic compound (VOC)” means any organic compound which participates in atmospheric photochemical reactions; that is, any organic compound other than those which the administrator designates as having negligible photochemical reactivity.
[07/20/95; 01/01/00; 20.2.74.7 NMAC - Rn, 20 NMAC 2.74.107, 10/31/02; A, 1/22/06]

20.2.74.8   AMENDMENT AND SUPERSESSION OF PRIOR REGULATIONS:  This Part amends and supersedes Air Quality Control Regulation (AQCR) 707, which was originally filed on February 14, 1984, and subsequently refiled on July 15, 1986; August 1, 1988; and May 29, 1990.  All references to AQCR 707 in any other rule shall be understood as a reference to this Part.

[07/20/95; 20.2.74.8 NMAC - Rn, 20 NMAC 2.74.106, 10/31/02]

 
20.2.74.9   DOCUMENTS:  Documents cited in this Part may be viewed at the New Mexico Environment Department, Air Quality Bureau, Harold Runnels Building, 1190 St. Francis Drive, Santa Fe, NM 87503 [2048 Galisteo St., Santa Fe, NM 87505].

[07/20/95; 20.2.74.9 NMAC - Rn, 20 NMAC 2.74.109, 10/31/02]

 
20.2.74.10   SEVERABILITY.  If any provision of this part, or the application of such provision to any person or circumstance, is held invalid, the remainder of this part, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.

[20.2.74.10 NMAC - N, 1/22/06]

 
20.2.74.11   CONSTRUCTION.  This part shall be liberally construed to carry out its purpose.

[20.2.74.11 NMAC - N, 1/22/06]

 
20.2.74.12  SAVINGS CLAUSE.  Repeal or supersession of prior versions of this part shall not affect any administrative or judicial action initiated under those prior versions.

[20.2.74.12 NMAC - N, 1/22/06]


20.2.74.13  COMPLIANCE WITH OTHER REGULATIONS.  Compliance with this part does not relieve a person from the responsibility to comply with any other applicable federal, state, or local regulations.

[20.2.74.13 NMAC - N, 1/22/06]


20.2.74.14  LIMITATION OF DEFENSE.  The existence of a valid permit under this part shall not constitute a defense to a violation of any section of this part, except the requirement for obtaining a permit.

[20.2.74.14 NMAC - N, 1/22/06]
 

20.2.74.15 to 20.2.74.107  [RESERVED]


20.2.74.108    RESTRICTIONS ON AREA CLASSIFICATIONS:

     A.  Mandatory Class I Federal areas:

          (1)  The following areas which were in existence on August 7, 1977, shall be mandatory Class I Federal areas and may not be redesignated:

               (a)  International parks (all of them);

               (b)  National wilderness areas which exceed 5,000 acres in size;

               (c)  National memorial parks which exceed 5,000 acres in size; and

               (d)  National parks which exceed 6,000 acres in size.

          (2)  Specifically for New Mexico, these areas are:

               (a)  Bandelier Wilderness, administered by NPS;

               (b)  Bosque del Apache Wilderness, administered by NFWS;

               (c)  Carlsbad Caverns National Park, administered by NPS;

               (d)  Gila Wilderness, administered by NFS;

               (e)  Pecos Wilderness, administered by NFS;

               (f)  Salt Creek Wilderness, administered by NFWS;

               (g)  San Pedro Parks Wilderness, administered by NFS;

               (h)  Wheeler Peak Wilderness, administered by NFS; and

               (i)  White Mountain Wilderness, administered by NFS;  where:  NPS = National Park Service, NFWS = National Fish and Wildlife Service, NFS = National Forest Service.

     B.  Areas which may be redesignated only as Class I or Class II:

          (1)  The following areas may be redesignated only as Class I or II:

               (a)  an area, as of August 7, 1977, which exceeds 10,000 acres in size and is a national monument, national primitive area, national preserve, national recreational area, national wild and scenic river, national wildlife refuge; or

               (b)  a national park or national wilderness area established after August 7, 1977 which exceeds 10,000 acres in size.

          (2)  Specifically for New Mexico, these areas include (but are not necessarily limited to):

               (a)  Apache Kid Wilderness, administered by NFS;

               (b)  Bandelier National Monument, administered by NPS;

               (c)  Bitter Lake National Wildlife Refuge, administered by NFWS;

               (d)  Blue Range Wilderness, administered by NFS;

               (e)  Bosque del Apache National Wildlife Refuge, administered by NFWS;

               (f)  Capitan Mountains Wilderness, administered by NFS;

               (g)  Cebolla Wilderness, administered by BLM;

               (h)  Chama River Canyon Wilderness, administered by NFS;

               (i)  Cruces Basin Wilderness, administered by NFS;

               (j)  De-na-zin Wilderness, administered by BLM;

               (k)  El Malpais National Monument, administered by NPS;

               (l)  Latir Peak Wilderness, administered by NFS;

               (m)  Manzano Mountain Wilderness, administered by NFS;

               (n)  San Andres National Wildlife Refuge, administered by NFWS;

               (o)  Sandia Mountain Wilderness, administered by NFS;

               (p)  Sevilleta National Wildlife Refuge, administered by NFWS;

               (q)  West Malpais Wilderness, administered by BLM;

               (r)  White Sands National Monument, administered by NPS; and

               (s)  Withington Wilderness, administered by NFS; where:  NFS = National Forest Service, NPS = National Park Service, NFWS = National Fish and Wildlife Service, BLM = Bureau of Land Management.

[07/20/95; 20.2.74.108 NMAC - Rn, 20 NMAC 2.74.108, 10/31/02]


20.2.74.109 to 20.2.74.199  [RESERVED]


20.2.74.200    APPLICABILITY.

     A.  The requirements of this part apply to the construction of any new major stationary source (as defined in 20.2.74.7 NMAC) or any project at an existing major stationary source in an area designated as attainment or unclassifiable.

     B.  The requirements of Sections 300 through 306, 400 and 403 of this part apply to the construction of any new major stationary source or the major modification of any existing major stationary source, except as this part otherwise provides.

     C.  No new major stationary source or major modification to which the requirements of Subsections A, B, C and D of 20.2.74.300 NMAC, and Sections 301, 302, 303, 304, 305, 306, 400 and 403 of this part apply shall begin actual construction without a permit that states that the major stationary source or major modification will meet those requirements.

     D.  Applicability procedures.

          (1)  Except as otherwise provided in Subsections E and F of this section, and consistent with the definition of major modification contained in 20.2.74.7 NMAC, a project is a major modification for a regulated new source review pollutant if it causes two types of emissions increases - a significant emissions increase (as defined in 20.2.74.7 NMAC), and a significant net emissions increase (as defined in Subsections AK and AV of 20.2.74.7 NMAC). The project is not a major modification if it does not cause a significant emissions increase.  If the project causes a significant emissions increase, then the project is a major modification only if it also results in a significant net emissions increase.

          (2)  The procedure for calculating (before beginning actual construction) whether a significant emissions increase (i.e., the first step of the process) will occur depends upon the type of emissions units being modified, according to Paragraphs (3) through (4) of this subsection.  The procedure for calculating (before beginning actual construction) whether a significant net emissions increase will occur at the major stationary source (i.e., the second step of the process) is contained in the definition in 20.2.74.7 NMAC.  Regardless of any such preconstruction projections, a major modification results if the project causes a significant emissions increase and a significant net emissions increase.
          (3)  Actual-to-projected-actual applicability test for projects that involve existing emissions units.  A significant emissions increase of a regulated new source review pollutant is projected to occur if the sum of the difference between the projected actual emissions (as defined in 20.2.74.7 NMAC) and the baseline actual emissions (as defined in Paragraphs (1) and (2) of Subsection G of 20.2.74.7 NMAC) for each existing emissions unit, equals or exceeds the significant amount for that pollutant (as defined in 20.2.74.7 NMAC).

          (4)  Actual-to-potential test for projects that involve construction of a new emissions unit(s).  A significant emissions increase of a regulated new source review pollutant is projected to occur if the sum of the difference between the potential to emit (as defined in 20.2.74.7 NMAC) from each new emissions unit following completion of the project and the baseline actual emissions (as defined in Paragraph (3) of Subsection G of 20.2.74.7 NMAC) of these units before the project equals or exceeds the significant amount for that pollutant (as defined in 20.2.74.7 NMAC).

          (5)  Hybrid test for projects that involve multiple types of emissions units.  A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the emissions increases for each emissions unit, using the method specified in Paragraphs (3) and (4) of this subsection as applicable with respect to each emissions unit, for each type of emissions unit equals or exceeds the significant amount for that pollutant.  For example, if a project involves both an existing emissions unit and a new emissions unit, the projected increase is determined by summing the values determined using the method specified in Paragraph (3) of this subsection for the existing unit and determined using the method specified in Paragraph (4) of this subsection for the new unit.

     E.  For any major stationary source for a PAL for a regulated new source review pollutant, the major stationary source shall comply with requirements under 20.2.74.320 NMAC.

[07/20/95; 20.2.74.200 NMAC - Rn, 20 NMAC 2.74.200, 10/31/02; A, 1/22/06]

 
20.2.74.201    EXEMPTIONS:  This Part shall not apply to:

     A.  Each regulated pollutant emitted for which the area the source proposes to locate in is designated as nonattainment;

     B.  Sources or modifications that are part of a nonprofit health or nonprofit educational institution and are approved by the Secretary;

     C.  A portable stationary source which has previously received a permit pursuant to this Part; and

          (1)  The owner or operator proposes to relocate the source, and emissions from the source at the new location will be temporary; and

          (2)  The emissions from the source would not exceed its allowable emission rate; and

          (3)  The emissions from the source would not impact any Class I Federal area nor any area where an applicable increment is known to be violated; and

          (4)  Reasonable notice is given to the Department prior to the relocation identifying the proposed new location and probable duration of operation at the new location.  Such notice shall be given to the Department not less than ten (10) days in advance of the proposed relocation unless a different time interval is previously approved by the Department;

     D.  A source or modification that would be major only if fugitive emissions, to the extent they are quantifiable, are considered in calculating the potential to emit or net emissions increase, and the source does not belong to:

          (1)  Any category in Table 1 of this Part (20.2.74.501 NMAC); or

          (2)  Any other stationary source category which as of August 7, 1980 is being regulated under section 111 or 112 of the Act.

[07/20/95; 20.2.74.201 NMAC - Rn, 20 NMAC 2.74.201, 10/31/02]


20.2.74.202 to 20.2.74.299  [RESERVED]


20.2.74.300    OBLIGATIONS OF OWNERS OR OPERATORS OF SOURCES:

     A.  Any owner or operator who begins actual construction or operates a source or modification without, or not in accordance with, a permit issued under the requirements of this part shall be subject to enforcement action.

     B.  The issuance of a permit does not relieve any person from the responsibility of complying with the provisions of the Air Quality Control Act, sections 74-2-1 to 74-2-17, NMSA 1978; any applicable regulations of the board; and any other requirements under local, state, or federal law.

     C.  Approval to construct shall become invalid if:  1) construction is not commenced within eighteen (18) months after receipt of such approval;  2) if construction is discontinued for a period of eighteen (18) months or more; or 3) if construction is not completed within a reasonable time.  For a phased construction project, each phase must commence construction within eighteen (18) months of the projected and approved commencement date.  The secretary may extend the eighteen (18) month period upon a satisfactory showing that an extension is justified.

     D.  If a source or modification becomes a major stationary source or major modification solely due to a relaxation in any enforceable limitation (which limitation was established after August 7, 1980), on the capacity of the source or modification otherwise to emit a pollutant, such as a restriction on hours of operation, then this part shall apply to the source or modification as though construction had not yet commenced.

     E.  The following specific provisions apply to projects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where the owner or operator elects to use the method specified in Paragraphs (1) through (3) of Subsection AQ of 20.2.74.7 NMAC for calculating projected actual emissions.

          (1)  Before beginning actual construction of the project, the owner or operator shall document and maintain a record of the following information:

               (a)  a description of the project;

               (b)  identification of the emissions unit(s) whose emissions of a regulated new source review pollutant could be affected by the project; and

               (c)  a description of the applicability test used to determine that the project is not a major modification for any regulated new source review pollutant, including the baseline actual emissions, the projected actual emissions, the amount of emissions excluded under Paragraph (3) of Subsection AQ of 20.2.74.7 NMAC and an explanation for why such amount was excluded, and any netting calculations, if applicable.

          (2)  If the emissions unit is an existing electric utility steam generating unit, before beginning actual construction, the owner or operator shall provide a copy of the information set out in Paragraph (1) of this subsection to the department.  Nothing in this paragraph shall be construed to require the owner or operator of such a unit to obtain any determination from the department; however, necessary preconstruction approvals and/or permits must be obtained before beginning actual construction.

          (3)  The owner or operator shall monitor the emissions of any regulated new source review pollutant that could increase as a result of the project and that is emitted by any emissions unit identified in Subparagraph (b) of Paragraph (1) of this subsection; and calculate and maintain a record of the annual emissions, in tons per year on a calendar year basis, for a period of 5 years following resumption of regular operations after the change, or for a period of 10 years following resumption of regular operations after the change if the project increases the design capacity or potential to emit of that regulated new source review pollutant at such emissions unit.

          (4)  If the unit is an existing electric utility steam generating unit, the owner or operator shall submit a report to the department within 60 days after the end of each year during which records must be generated under Subparagraph (c) of Paragraph (1) of this subsection setting out the unit's annual emissions during the calendar year that preceded submission of the report.

          (5)  If the unit is an existing unit other than an electric utility steam generating unit, the owner or operator shall submit a report to the department if the annual emissions, in tons per year, from the project identified in Paragraph (1) of this subsection, exceed the baseline actual emissions (as documented and maintained pursuant to Subparagraph (c) of Paragraph (1) of this subsection) by a significant amount (as defined in 20.2.74.7 NMAC) for that regulated new source review pollutant, and if such emissions differ from the preconstruction projection as documented and maintained pursuant to Subparagraph (c) of Paragraph (1) of this subsection.  Such report shall be submitted to the department within 60 days after the end of such year.  The report shall contain the following:

               (a)  the name, address and telephone number of the major stationary source;

               (b)  the annual emissions as calculated pursuant to Paragraph (3) of this subsection; and

               (c)  any other information that the owner or operator wishes to include in the report (e.g., an explanation as to why the emissions differ from the preconstruction projection).

     F.  The owner or operator of the source shall make the information required to be documented and maintained pursuant to Subsection E of this section available for review upon request for inspection by the department or the general public pursuant to the requirements contained in 40 CFR 70.4(b)(3)(viii).

[07/20/95; 20.2.74.300 NMAC - Rn, 20 NMAC 2.74.300, 10/31/02; A, 1/22/06]


20.2.74.301    SOURCE INFORMATION:  The owner or operator of a proposed source or modification shall submit all information necessary to perform any analysis or make any determination required under this Part.

     A.  Information shall include, but is not limited to:

          (1)  A description of the nature, location, design capacity, and typical operating schedule of the source or modification, including specifications and drawings showing the design and plant layout; and

          (2)  A detailed schedule of construction of the source or modification; and

          (3)  A detailed description of the planned system of continuous emission reduction for the source or modification, emission estimates, and other information necessary to determine that Best Available Control Technology will be applied.
     B.  Upon request by the Department, the owner or operator shall also provide information on:

          (1)  The air quality impact of the source or modification, including meteorologic and topographic data necessary to estimate such impact; and

          (2)  The air quality impacts, and the nature and extent of any or all general commercial, residential, industrial, and other growth which has occurred since August 7, 1977 in the area the source or modification would affect.

[07/20/95; 20.2.74.301 NMAC - Rn, 20 NMAC 2.74.301, 10/31/02]


20.2.74.302    CONTROL TECHNOLOGY REQUIREMENTS:

     A.  A new major stationary source shall apply Best Available Control Technology for each regulated pollutant that it would have the potential to emit in amounts equal to or greater than the significance levels as listed in Table 2 of this Part (20.2.74.502 NMAC).  This requirement applies to each proposed emissions unit or operation that will emit such pollutant.

     B.  A major modification shall apply Best Available Control Technology for each regulated pollutant at the source when a significant net emissions increase occurs as defined in this Part.  This requirement applies to each proposed emissions unit or operation where a net emissions increase in the pollutant would occur as a result of a physical change or change in the method of operation in the unit.

     C.  For phased construction projects, the determination of Best Available Control Technology shall be reviewed and modified as appropriate at the latest reasonable time but no later than eighteen (18) months prior to commencement of construction of each independent phase of the project.  At such time, the owner or operator of the applicable stationary source may be required to demonstrate the adequacy of any previous determination of Best Available Control Technology for the source.

     D.  The Department may approve a system of innovative control technology for the major stationary source or major modification if:

          (1)  The proposed control system would not cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation or function; and

          (2)  The owner or operator agrees to achieve a level of continuous emissions reduction equivalent to that which would have been required under Best Available Control Technology by a date specified by the Department.  Such date shall not be later than four (4) years from the time of startup or seven (7) years from permit issuance; and

          (3)  The source or modification would meet the requirements of 20.2.74.302 NMAC and 20.2.74.303 NMAC based on the emission rate that the system of innovative control technology would be required to meet on the date specified by the Department; and

          (4)  During the interim period of achieving the permitted emission level, the source or modification would not:

               (a)  Cause or contribute to a violation of an applicable national ambient air quality standard; nor

               (b)  Impact any Class I Federal area; nor

               (c)  Impact any area where an applicable increment is known to be violated; and

          (5)  All other applicable requirements including those for public participation have been met.

     E.  The Department shall withdraw any approval to employ a system of innovative control technology if:

          (1)  The proposed system fails by the specified date to achieve the required continuous emissions reduction rate; or

          (2)  The proposed system fails before the specified date so as to contribute to an unreasonable risk to public health, welfare, or safety; or

          (3)  The Department decides at any time that the proposed system is unlikely to achieve the required level of control or to protect the public health, welfare, or safety.

     F.  If a source or modification fails to meet the required level of continuous emission reduction within the specified time period or the approval is withdrawn in accordance with subsection E of 20.2.74.302 NMAC, the Department may allow the source or modification up to an additional three (3) years to meet the requirement for the application of Best Available Control Technology.  This shall be accomplished through use of a demonstrated system of control.

     G.  If the owner or operator of a major stationary source or major modification previously issued a permit under this Part applies for an extension (as provided for under subsection C of 20.2.74.300 NMAC), and the new proposed date of construction is greater than eighteen (18) months from the date the permit would become invalid, the determination of Best Available Control Technology shall be reviewed and modified as appropriate before such an extension is granted.  At such time, the owner or operator of the applicable stationary source may be required to demonstrate the adequacy of any previous determination of Best Available Control Technology for the source.

     H.  With respect to PM10, for the case where PM10 emissions cannot be quantified, the Best Available Control Technology limitation may be defined in terms of particulate matter emissions.

[07/20/95; 20.2.74.302 NMAC - Rn, 20 NMAC 2.74.302, 10/31/02]


20.2.74.303    AMBIENT IMPACT REQUIREMENTS:

     A.  The requirements of this section shall apply to each pollutant emitted by a new major stationary source or major modification in amounts equal to or greater than those in Table 2 of this Part (20.2.74.502 NMAC).  For particulate matter, the source will only be required to perform ambient impact analysis for PM10 when the source has the potential to emit significant amounts of PM10 (Table 2, 20.2.74.502 NMAC).

     B.  The allowable emission increases from the proposed source or modification, including secondary emissions, in conjunction with all other applicable emissions increases or reductions, including secondary emissions, shall not cause or contribute to air pollution in violation of:

          (1)  Any National Ambient Air Quality Standard in any location; or

          (2)  Any applicable maximum allowable increase as shown in Table 4 of this Part (20.2.74.504 NMAC) over the baseline concentrations in any area.

          (3)  The owner or operator of the proposed major stationary source or major modification shall demonstrate that neither paragraph (1) nor paragraph (2) of 20.2.74.303 NMAC will occur.

[07/20/95; 20.2.74.303 NMAC - Rn, 20 NMAC 2.74.303, 10/31/02]


20.2.74.304    ADDITIONAL IMPACT REQUIREMENTS:

     A.  The owner or operator of the proposed major stationary source or major modification shall provide an analysis of the impairment to visibility, soils, and vegetation that would occur as a result of the source or modification and general commercial, residential, industrial, and other growth associated with the source or modification.  The owner or operator need not provide an analysis of the impact on vegetation having no significant commercial or recreational value.  The analysis can use data or information available from the Department.

     B.  The owner or operator shall also provide an analysis of the air quality impact projected for the area as a result of general commercial, residential, industrial, and other growth associated with the source or modification.

[07/20/95; 20.2.74.304 NMAC - Rn, 20 NMAC 2.74.304, 10/31/02]


20.2.74.305    AMBIENT AIR QUALITY MODELING:  All estimates of ambient concentrations required by this Part shall be based on applicable air quality models, data bases, and other requirements as specified in EPA's Guideline on Air Quality Models (EPA-450/2-78-027R, July, 1986), its revisions, or any superseding EPA document, and approved by the Department.  Where an air quality impact model specified in the Guideline on Air Quality Models is inappropriate, the model may be modified or another model substituted.  Any substitution or modification of a model must be approved by the Department.  Notification shall be given by the Department of such a substitution or modification and the opportunity for public comment provided for in fulfilling the public notice requirements in subsection B of 20.2.74.400 NMAC.  The Department will seek EPA approval of such substitutions or modifications.

[07/20/95; 20.2.74.305 NMAC - Rn, 20 NMAC 2.74.305, 10/31/02]


20.2.74.306    MONITORING REQUIREMENTS:

     A.  Any application for a permit under this Part shall contain an analysis of ambient air quality.  Air quality data can be that measured by the applicant or that available from a government agency in the area affected by the major stationary source or major modification.  The analysis shall contain the following:

          (1)  For a major stationary source, each pollutant for which the potential to emit is equal to or greater than the significant emission rates as listed in Table 2 of this Part (20.2.74.502 NMAC); or

          (2)  For a major modification, each pollutant that would result in a significant net emission increase.

     B.  If no National Ambient Air Quality Standard (NAAQS) for a pollutant exists, and there is an acceptable method for monitoring that pollutant, the analysis shall contain such air quality monitoring data as the Department determines is necessary to assess ambient air quality for that pollutant.

     C.  Continuous air quality monitoring data shall be required for all pollutants for which a National Ambient Air Quality Standard exists.  Such data shall be submitted to the Department for at least the one (1) year period prior to receipt of the permit application.  The Department has the discretion to:

          (1)  Determine that a complete and adequate analysis can be accomplished with monitoring data gathered over a period shorter than one year but not less than four months; or

          (2)  Determine that existing air quality monitoring data is representative of air quality in the affected area and accept such data in lieu of additional monitoring by the applicant.

     D.  Ozone monitoring shall be performed if monitoring data is required for volatile organic compounds.  Post construction ozone monitoring data may be submitted in lieu of providing preconstruction data as required under subsection C of 20.2.74.306 NMAC if the owner or operator of the proposed major source or major modification satisfies all the provisions of 40 CFR Part 51, Appendix S, Section IV.

     E.  The Department may require monitoring of visibility in any Class I Federal area where the Department determines that an adverse impact on visibility may occur due primarily to the operations of the proposed new source or modification.  Such monitoring shall be conducted following procedures approved by the Department and subject to the following:

          (1)  Visibility monitoring methods specified by the Department shall be reasonably available and not require any research and development; and

          (2)  The cost of visibility monitoring required by the Department shall not exceed fifty percent (50%) of the cost of ambient monitoring required by this Part.  If ambient monitoring is not required, the cost shall be estimated as if it were required for each pollutant to which this Part applies.

          (3)  Both preconstruction and post construction visibility monitoring may be required.  In each case, the duration of such monitoring shall not exceed one (1) year.

     F.  The owner or operator of a major stationary source or major modification shall conduct post construction ambient monitoring as the Department determines is necessary to validate attainment of ambient air quality standards and to assure that increments are not exceeded.

     G.  The owner or operator of a major stationary source or major modification shall meet the requirements of 40 CFR 58, Appendix B during the operation of monitoring stations for purposes of satisfying the requirements of this section.

     H.  The Department has the discretion to exempt a stationary source or modification from the requirements of this section with respect to monitoring for a particular pollutant if the emissions of the pollutant from the new source or the net emissions increase of the pollutant from the modification would cause, in any area, increases in ambient concentrations less than the levels listed in Table 3 of this Part (20.2.74.503 NMAC).

     I.  The Department shall exempt a stationary source or modification from the requirements of this section with respect to preconstruction monitoring for a particular pollutant if:

          (1)  For ozone, volatile organic compound emissions are less than one hundred (100) tons per year; or

          (2)  The air pollutant is not a regulated pollutant; or

          (3)  The existing ambient concentrations of the pollutant in the area affected by the source or modification are less than the concentrations listed in Table 3 of this Part (20.2.74.503 NMAC).

[07/20/95; 20.2.74.306 NMAC - Rn, 20 NMAC 2.74.306, 10/31/02]


20.2.74.307    TEMPORARY SOURCE EXEMPTIONS:  The requirements of 20.2.74.304 NMAC and 20.2.74.306 NMAC shall not apply to a temporary source subject to this Part for a given pollutant if the allowable emissions of such pollutant would not impact any Class I Federal area or any areas where an applicable increment is violated and would be temporary.

[07/20/95; 20.2.74.307 NMAC - Rn, 20 NMAC 2.74.307, 10/31/02]


20.2.74.308 to 20.2.74.319  [RESERVED]


20.2.74.320    ACTUALS PLANTWIDE APPLICABILITY LIMITS (PALs)

     A.  Applicability.

          (1)  The department may approve the use of an actuals PAL for any existing major stationary source if the PAL meets the requirements in this section.  The term “PAL” shall mean “actuals PAL” throughout this section.

          (2)  Any physical change in or change in the method of operation of a major stationary source that maintains its total source-wide emissions below the PAL level, meets the requirements of this section, and complies with the PAL permit:

               (a)  is not a major modification for the PAL pollutant;

               (b)  does not have to be approved through the requirements of this part; and

               (c)  is not subject to the provisions in Subsection D of 20.2.74.300 NMAC (restrictions on relaxing enforceable emission limitations that the major stationary source used to avoid applicability of the major new source review program).

          (3)  Except as provided under Subparagraph (c) of Paragraph (1) of this subsection, a major stationary source shall continue to comply with all applicable federal or state requirements, emission limitations, and work practice requirements that were established prior to the effective date of the PAL.

     B.  Definitions applicable to this section.

          (1)  Actuals PAL for a major stationary source means a PAL based on the baseline actual emissions (as defined in 20.2.74.7 NMAC) of all emissions units (as defined in 20.2.74.7 NMAC) at the source, that emit or have the potential to emit the PAL pollutant.

          (2)  Allowable emissions means “allowable emissions” as defined in 20.2.74.7 NMAC, except as this definition is modified in accordance with the following.

               (a)  The allowable emissions for any emissions unit shall be calculated considering any emission limitations that are enforceable as a practical matter on the emissions unit's potential to emit.

               (b)  An emissions unit's potential to emit shall be determined using the definition in 20.2.74.7 NMAC, except that the words “or enforceable as a practical matter” should be added after “federally enforceable”.

          (3)  Small emissions unit means an emissions unit that emits or has the potential to emit the PAL pollutant in an amount less than the significant level for that PAL pollutant, as defined in Subsection AV of 20.2.74.7 NMAC or in the act, whichever is lower.

          (4)  Major emissions unit means:

               (a)  any emissions unit that emits or has the potential to emit 100 tons per year or more of the PAL pollutant in an attainment area; or

               (b)  any emissions unit that emits or has the potential to emit the PAL pollutant in an amount that is equal to or greater than the major source threshold for the PAL pollutant as defined by the act for nonattainment areas.  For example, in accordance with the definition of major stationary source in Section 182(c) of the act, an emissions unit would be a major emissions unit for VOC if the emissions unit is located in a serious ozone nonattainment area and it emits or has the potential to emit 50 or more tons of VOC per year.

          (5)  Plantwide applicability limitation (PAL) means an emission limitation expressed in tons per year, for a pollutant at a major stationary source, that is enforceable as a practical matter and established source-wide in accordance with this section.

          (6)  PAL effective date generally means the date of issuance of the PAL permit.  However, the PAL effective date for an increased PAL is the date any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

          (7)  PAL effective period means the period beginning with the PAL effective date and ending 10 years later.

          (8)  PAL major modification means, notwithstanding the definitions for major modification and net emissions increase in 20.2.74.7 NMAC, any physical change in or change in the method of operation of the PAL source that causes it to emit the PAL pollutant at a level equal to or greater than the PAL.

          (9)  PAL permit means the major new source review permit, the minor new source review permit, or the state operating permit under a program that is approved into the plan, or the title V permit issued by the department that establishes a PAL for a major stationary source.

          (10)  PAL pollutant means the pollutant for which a PAL is established at a major stationary source.

          (11)  Significant emissions unit means an emissions unit that emits or has the potential to emit a PAL pollutant in an amount that is equal to or greater than the significant level (as defined in Subsection AV of 20.2.74.7 NMAC or in the act, whichever is lower) for that PAL pollutant, but less than the amount that would qualify the unit as a major emissions unit as defined in Paragraph (4) of this subsection.

     C.  Permit application requirements.  As part of a permit application requesting a PAL, the owner or operator of a major stationary source shall submit the following information to the department for approval.

          (1)  A list of all emissions units at the source designated as small, significant or major based on their potential to emit.  In addition, the owner or operator of the source shall indicate which, if any, federal or state applicable requirements, emission limitations, or work practices apply to each unit.

          (2)  Calculations of the baseline actual emissions (with supporting documentation).  Baseline actual emissions are to include emissions associated not only with operation of the unit, but also emissions associated with startup, shutdown, and malfunction.

          (3)  The calculation procedures that the major stationary source owner or operator proposes to use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for each month as required by Subsection M of this section.

     D.  General requirements for establishing PALs.

          (1)  The department may establish a PAL at a major stationary source, provided that at a minimum, the following requirements are met.

               (a)  The PAL shall impose an annual emission limitation in tons per year, that is enforceable as a practical matter, for the entire major stationary source.  For each month during the PAL effective period after the first 12 months of establishing a PAL, the major stationary source owner or operator shall show that the sum of the monthly emissions from each emissions unit under the PAL for the previous 12 consecutive months is less than the PAL (a 12-month average, rolled monthly).  For each month during the first 11 months from the PAL effective date, the major stationary source owner or operator shall show that the sum of the preceding monthly emissions from the PAL effective date for each emissions unit under the PAL is less than the PAL.

               (b)  The PAL shall be established in a PAL permit that meets the public participation requirements in Subsection E of this section.

               (c)  The PAL permit shall contain all the requirements of Subsection G of this section.

               (d)  The PAL shall include fugitive emissions, to the extent quantifiable, from all emissions units that emit or have the potential to emit the PAL pollutant at the major stationary source.

               (e)  Each PAL shall regulate emissions of only one pollutant.

               (f)  Each PAL shall have a PAL effective period of 10 years.

               (g)  The owner or operator of the major stationary source with a PAL shall comply with the monitoring, recordkeeping, and reporting requirements provided in Subsections L through N of this section for each emissions unit under the PAL through the PAL effective period.

          (2)  At no time (during or after the PAL effective period) are emissions reductions of a PAL pollutant that occur during the PAL effective period creditable as decreases for purposes of offsets under 40 CFR 51.165(a)(3)(ii) unless the level of the PAL is reduced by the amount of such emissions reductions and such reductions would be creditable in the absence of the PAL.

     E.  Public participation requirements for PALs.  PALs for existing major stationary sources shall be established, renewed, or increased, through a procedure that is consistent with 40 CFR 51.160 and 161.  This includes the requirement that the department provide the public with notice of the proposed approval of a PAL permit and at least a 30-day period for submittal of public comment.  The department must address all material comments before taking final action on the permit.

     F.  Setting the 10-year actuals PAL level.

          (1)  Except as provided in Paragraph (2) of this subsection, the actuals PAL level for a major stationary source shall be established as the sum of the baseline actual emissions (as defined in 20.2.74.7 NMAC) of the PAL pollutant for each emissions unit at the source; plus an amount equal to the applicable significant level for the PAL pollutant under Subsection AV of 20.2.74.7 NMAC or under the act, whichever is lower.  When establishing the actuals PAL level, for a PAL pollutant, only one consecutive 24-month period must be used to determine the baseline actual emissions for all existing emissions units.  However, a different consecutive 24-month period may be used for each different PAL pollutant.  Emissions associated with units that were permanently shutdown after this 24-month period must be subtracted from the PAL level.  The department shall specify a reduced PAL level(s) (in tons/yr) in the PAL permit to become effective on the future compliance date(s) of any applicable federal or state regulatory requirement(s) that the department is aware of prior to issuance of the PAL permit.  For instance, if the source owner or operator will be required to reduce emissions from industrial boilers in half from baseline emissions of 60 ppm NOx to a new rule limit of 30 ppm, then the permit shall contain a future effective PAL level that is equal to the current PAL level reduced by half of the original baseline emissions of such unit(s).

          (2)  For newly constructed units (which do not include modifications to existing units) on which actual construction began after the 24-month period, in lieu of adding the baseline actual emissions as specified in Paragraph (1) of this subsection, the emissions must be added to the PAL level in an amount equal to the potential to emit of the units.

     G.  Contents of the PAL permit.  The PAL permit shall contain, at a minimum, the following information.

          (1)  The PAL pollutant and the applicable source-wide emission limitation in tons per year.

          (2)  The PAL permit effective date and the expiration date of the PAL (PAL effective period).

          (3)  Specification in the PAL permit that if a major stationary source owner or operator applies to renew a PAL in accordance with Subsection J of this section before the end of the PAL effective period, then the PAL shall not expire at the end of the PAL effective period.  It shall remain in effect until a revised PAL permit is issued by the department.

          (4)  A requirement that emission calculations for compliance purposes include emissions from startups, shutdowns and malfunctions.

          (5)  A requirement that, once the PAL expires, the major stationary source is subject to the requirements of Subsection I of this section.

          (6)  The calculation procedures that the major stationary source owner or operator shall use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for each month as required by Paragraph (1) of Subsection C of this section.

          (7)  A requirement that the major stationary source owner or operator monitor all emissions units in accordance with the provisions under Subsection M of this section.

          (8)  A requirement to retain the records required under Subsection M of this section on site.  Such records may be retained in an electronic format.

          (9)  A requirement to submit the reports required under Subsection N of this section by the required deadlines.

          (10)  Any other requirements that the department deems necessary to implement and enforce the PAL.

     H.  PAL effective period and reopening of the PAL permit.

          (1)  PAL effective period.  The PAL effective period shall be 10 years.

          (2)  Reopening of the PAL permit.

               (a)  During the PAL effective period, the department shall reopen the PAL permit to:

                    (i)  correct typographical/calculation errors made in setting the PAL or reflect a more accurate determination of emissions used to establish the PAL;

                    (ii)  reduce the PAL if the owner or operator of the major stationary source creates creditable emissions reductions for use as offsets under 40 CFR 51.165(a)(3)(ii); and

                    (iii)  revise the PAL to reflect an increase in the PAL as provided under Subsection K of this section.

               (b)  The department may reopen the PAL permit for the following:

                    (i)  to reduce the PAL to reflect newly applicable federal requirements (for example, NSPS) with compliance dates after the PAL effective date;

                    (ii)  to reduce the PAL consistent with any other requirement, that is enforceable as a practical matter, and that the department may impose on the major stationary source under the plan; and

                    (iii)  to reduce the PAL if the department determines that a reduction is necessary to avoid causing or contributing to a NAAQS or PSD increment violation, or to an adverse impact on an AQRV that has been identified for a federal class I area by a federal land manager and for which information is available to the general public.

               (c)  Except for the permit reopening in Item (i) of Subparagraph (a) of Paragraph (2) of this subsection for the correction of typographical/calculation errors that do not increase the PAL level, all reopenings shall be carried out in accordance with the public participation requirements of Subsection E of this section.

     I.  Expiration of a PAL.  Any PAL that is not renewed in accordance with the procedures in Subsection J of this section shall expire at the end of the PAL effective period, and the following requirements shall apply.

          (1)  Each emissions unit (or each group of emissions units) that existed under the PAL shall comply with an allowable emission limitation under a revised permit established according to the following procedures.

               (a)  Within the time frame specified for PAL renewals in Paragraph (2) of Subsection J of this section, the major stationary source shall submit a proposed allowable emission limitation for each emissions unit (or each group of emissions units, if such a distribution is more appropriate as decided by the department) by distributing the PAL allowable emissions for the major stationary source among each of the emissions units that existed under the PAL.  If the PAL had not yet been adjusted for an applicable requirement that became effective during the PAL effective period, as required under Paragraph (5) of Subsection J of this section, such distribution shall be made as if the PAL had been adjusted.

               (b)  The department shall decide whether and how the PAL allowable emissions will be distributed and issue a revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, as the department determines is appropriate.

          (2)  Each emissions unit(s) shall comply with the allowable emission limitation on a 12-month rolling basis.  The department may approve the use of monitoring systems (source testing, emission factors, etc.) other than CEMS, CERMS, PEMS or CPMS to demonstrate compliance with the allowable emission limitation.

          (3)  Until the department issues the revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, as required under Subparagraph (b) of Paragraph (1) of Subsection I of this section, the source shall continue to comply with a source-wide, multi-unit emissions cap equivalent to the level of the PAL emission limitation.

          (4)  Any physical change or change in the method of operation at the major stationary source will be subject to major new source review requirements if such change meets the definition of major modification in 20.2.74.7 NMAC.

          (5)  The major stationary source owner or operator shall continue to comply with any New Mexico or federal applicable requirements (BACT, RACT, NSPS, etc.) that may have applied either during the PAL effective period or prior to the PAL effective period except for those emission limitations that had been established pursuant to Subsection D of 20.2.74.300 NMAC, but were eliminated by the PAL in accordance with the provisions in Subparagraph (c) of Paragraph (2) of Subsection A of this section.

     J.  Renewal of a PAL.

          (1)  The department shall follow the procedures specified in Subsection E of this section in approving any request to renew a PAL for a major stationary source, and shall provide both the proposed PAL level and a written rationale for the proposed PAL level to the public for review and comment.  During such public review, any person may propose a PAL level for the source for consideration by the department.

          (2)  Application deadline.  A major stationary source owner or operator shall submit a timely application to the department to request renewal of a PAL.  A timely application is one that is submitted at least 6 months prior to, but not earlier than 18 months from, the date of permit expiration.  This deadline for application submittal is to ensure that the permit will not expire before the permit is renewed.  If the owner or operator of a major stationary source submits a complete application to renew the PAL within this time period, then the PAL shall continue to be effective until the revised permit with the renewed PAL is issued.

          (3)  Application requirements.  The application to renew a PAL permit shall contain the following information.

               (a)  The information required in Subsection C of this section.

               (b)  A proposed PAL level.

               (c)  The sum of the potential to emit of all emissions units under the PAL (with supporting documentation).

               (d)  Any other information the owner or operator wishes the department to consider in determining the appropriate level for renewing the PAL.

          (4)  PAL adjustment.  In determining whether and how to adjust the PAL, the department shall consider the options outlined in Subparagraphs (a) and (b) of this paragraph.  However, in no case may any such adjustment fail to comply with Subparagraph (c) of this paragraph.

               (a)  If the emissions level calculated in accordance with Subsection F of this section is equal to or greater than 80 percent of the PAL level, the department may renew the PAL at the same level without considering the factors set forth in Subparagraph (b) of this paragraph.

               (b)  The department may set the PAL at a level that it determines to be more representative of the source's baseline actual emissions, or that it determines to be appropriate considering air quality needs, advances in control technology, anticipated economic growth in the area, desire to reward or encourage the source's voluntary emissions reductions, or other factors as specifically identified by the department in its written rationale.

               (c)  Notwithstanding Subparagraphs (a) and (b) of this paragraph:

                    (i)  if the potential to emit of the major stationary source is less than the PAL, the department shall adjust the PAL to a level no greater than the potential to emit of the source; and

                    (ii)  the department shall not approve a renewed PAL level higher than the current PAL, unless the major stationary source has complied with the provisions of Subsection K of this section (increasing a PAL).

          (5)  If the compliance date for a state or federal requirement that applies to the PAL source occurs during the PAL effective period, and if the department has not already adjusted for such requirement, the PAL shall be adjusted at the time of PAL permit renewal or title V permit renewal, whichever occurs first.

     K.  Increasing a PAL during the PAL effective period.

          (1)  The department may increase a PAL emission limitation only if the major stationary source complies with the following provisions.

               (a)  The owner or operator of the major stationary source shall submit a complete application to request an increase in the PAL limit for a PAL major modification.  Such application shall identify the emissions unit(s) contributing to the increase in emissions so as to cause the major stationary source's emissions to equal or exceed its PAL.

               (b)  As part of this application, the major stationary source owner or operator shall demonstrate that the sum of the baseline actual emissions of the small emissions units, plus the sum of the baseline actual emissions of the significant and major emissions units assuming application of BACT equivalent controls, plus the sum of the allowable emissions of the new or modified emissions unit(s), exceeds the PAL.  The level of control that would result from BACT equivalent controls on each significant or major emissions unit shall be determined by conducting a new BACT analysis at the time the application is submitted, unless the emissions unit is currently required to comply with a BACT or LAER requirement that was established within the preceding 10 years.  In such a case, the assumed control level for that emissions unit shall be equal to the level of BACT or LAER with which that emissions unit must currently comply.

               (c)  The owner or operator obtains a major new source review permit for all emissions unit(s) identified in Subparagraph (a) of this paragraph, regardless of the magnitude of the emissions increase resulting from them (that is, no significant levels apply).  These emissions unit(s) shall comply with any emissions requirements resulting from the major new source review process (for example, BACT), even though they have also become subject to the PAL or continue to be subject to the PAL.

               (d)  The PAL permit shall require that the increased PAL level shall be effective on the day any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

          (2)  The department shall calculate the new PAL as the sum of the allowable emissions for each modified or new emissions unit, plus the sum of the baseline actual emissions of the significant and major emissions units (assuming application of BACT equivalent controls as determined in accordance with Subparagraph (b) of Paragraph (1) of this subsection), plus the sum of the baseline actual emissions of the small emissions units.

          (3)  The PAL permit shall be revised to reflect the increased PAL level pursuant to the public notice requirements of Subsection E of this section.

     L.  Monitoring requirements for PALs.

          (1)  General requirements.

               (a)  Each PAL permit must contain enforceable requirements for the monitoring system that accurately determines plantwide emissions of the PAL pollutant in terms of mass per unit of time.  Any monitoring system authorized for use in the PAL permit must be based on sound science and meet generally acceptable scientific procedures for data quality and manipulation.  Additionally, the information generated by such system must meet minimum legal requirements for admissibility in a judicial proceeding to enforce the PAL permit.

               (b)  The PAL monitoring system must employ one or more of the four general monitoring approaches meeting the minimum requirements set forth in Paragraph (2) of this subsection and must be approved by the department.

               (c)  Notwithstanding Subparagraph (b) of this paragraph, you may also employ an alternative monitoring approach that meets Subparagraph (a) of this paragraph if approved by the department.

               (d)  Failure to use a monitoring system that meets the requirements of this section renders the PAL invalid.

          (2)  The following are acceptable general monitoring approaches when conducted in accordance with the minimum requirements in Paragraphs (3) through (9) of this subsection:

               (a)  Mass balance calculations for activities using coatings or solvents;

               (b)  CEMS;

               (c)  CPMS or PEMS; and

               (d)  emission factors.

          (3)  Mass balance calculations.  An owner or operator using mass balance calculations to monitor PAL pollutant emissions from activities using coating or solvents shall meet the following requirements:

               (a)  provide a demonstrated means of validating the published content of the PAL pollutant that is contained in or created by all materials used in or at the emissions unit;

               (b)  assume that the emissions unit emits all of the PAL pollutant that is contained in or created by any raw material or fuel used in or at the emissions unit, if it cannot otherwise be accounted for in the process; and

               (c)  where the vendor of a material or fuel, which is used in or at the emissions unit, publishes a range of pollutant content from such material, the owner or operator must use the highest value of the range to calculate the PAL pollutant emissions unless the department determines there is site-specific data or a site-specific monitoring program to support another content within the range.

          (4)  CEMS.  An owner or operator using CEMS to monitor PAL pollutant emissions shall meet the following requirements:

               (a)  CEMS must comply with applicable performance specifications found in 40 CFR Part 60, Appendix B; and

               (b)  CEMS must sample, analyze, and record data at least every 15 minutes while the emissions unit is operating.

          (5)  CPMS or PEMS.  An owner or operator using CPMS or PEMS to monitor PAL pollutant emissions shall meet the following requirements:

               (a)  the CPMS or the PEMS must be based on current site-specific data demonstrating a correlation between the monitored parameter(s) and the PAL pollutant emissions across the range of operation of the emissions unit; and

               (b)  each CPMS or PEMS must sample, analyze, and record data at least every 15 minutes, or at another less frequent interval approved by the department, while the emissions unit is operating.

          (6)  Emission factors.  An owner or operator using emission factors to monitor PAL pollutant emissions shall meet the following requirements:

               (a)  all emission factors shall be adjusted, if appropriate, to account for the degree of uncertainty or limitations in the factors' development;

               (b)  the emissions unit shall operate within the designated range of use for the emission factor, if applicable; and

               (c)  if technically practicable, the owner or operator of a significant emissions unit that relies on an emission factor to calculate PAL pollutant emissions shall conduct validation testing to determine a site-specific emission factor within 6 months of PAL permit issuance, unless the department determines that testing is not required.

          (7)  A source owner or operator must record and report maximum potential emissions without considering enforceable emission limitations or operational restrictions for an emissions unit during any period of time that there is no monitoring data, unless another method for determining emissions during such periods is specified in the PAL permit.

          (8)  Notwithstanding the requirements in Paragraphs (3) through (7) of this subsection, where an owner or operator of an emissions unit cannot demonstrate a correlation between the monitored parameter(s) and the PAL pollutant emissions rate at all operating points of the emissions unit, the department shall, at the time of permit issuance:

               (a)  establish default value(s) for determining compliance with the PAL based on the highest potential emissions reasonably estimated at such operating point(s); or

               (b)  determine that operation of the emissions unit during operating conditions when there is no correlation between monitored parameter(s) and the PAL pollutant emissions is a violation of the PAL.

          (9)  Revalidation.  All data used to establish the PAL pollutant must be revalidated through performance testing or other scientifically valid means approved by the department.  Such testing must occur at least once every 5 years after issuance of the PAL.

     M.  Recordkeeping requirements.

          (1)  The PAL permit shall require an owner or operator to retain a copy of all records necessary to determine compliance with any requirement of this section and of the PAL, including a determination of each emissions unit's 12-month rolling total emissions, for 5 years from the date of such record.

          (2)  The PAL permit shall require an owner or operator to retain a copy of the following records, for the duration of the PAL effective period plus 5 years:

               (a)  a copy of the PAL permit application and any applications for revisions to the PAL; and

               (b)  each annual certification of compliance pursuant to title V and the data relied on in certifying the compliance.

     N.  Reporting and notification requirements.  The owner or operator shall submit semi-annual monitoring reports and prompt deviation reports to the department in accordance with the applicable title V operating permit program.  The reports shall meet the following requirements.

          (1)  Semi-annual report.  The semi-annual report shall be submitted to the department within 30 days of the end of each reporting period.  This report shall contain the following information:

               (a)  the identification of owner and operator and the permit number;
               (b)  total annual emissions (tons per year) based on a 12-month rolling total for each month in the reporting period recorded pursuant to Paragraph (1) of Subsection M of this section;

               (c)  all data relied upon, including, but not limited to, any quality assurance or quality control data, in calculating the monthly and annual PAL pollutant emissions;

               (d)  a list of any emissions units modified or added to the major stationary source during the preceding 6-month period;

               (e)  the number, duration, and cause of any deviations or monitoring malfunctions (other than the time associated with zero and span calibration checks), and any corrective action taken;

               (f)  a notification of a shutdown of any monitoring system, whether the shutdown was permanent or temporary, the reason for the shutdown, the anticipated date that the monitoring system will be fully operational or replaced with another monitoring system, and whether the emissions unit monitored by the monitoring system continued to operate, and the calculation of the emissions of the pollutant or the number determined by method included in the permit, as provided by Paragraph (7) of Subsection L of this section; and

               (g)  a signed statement by the responsible official (as defined by the applicable title V operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

          (2)  Deviation report.  The major stationary source owner or operator shall promptly submit reports of any deviations or exceedance of the PAL requirements, including periods where no monitoring is available.  A report submitted pursuant to 40 CFR 70.6(a)(3)(iii)(B) shall satisfy this reporting requirement.  The deviation reports shall be submitted within the time limits prescribed by the applicable program implementing 40 CFR 70.6(a)(3)(iii)(B).  The reports shall contain the following information:

               (a)  the identification of owner and operator and the permit number;

               (b)  the PAL requirement that experienced the deviation or that was exceeded;

               (c)  emissions resulting from the deviation or the exceedance; and

               (d)  a signed statement by the responsible official (as defined by the applicable title V operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

          (3)  Revalidation results.  The owner or operator shall submit to the department the results of any revalidation test or method within three months after completion of such test or method.

     O.  Transition requirements.

          (1)  The department may not issue a PAL that does not comply with the requirements in this section after the administrator has approved regulations incorporating these requirements into a plan.

          (2)  The department may supersede any PAL which was established prior to the date of approval of the plan by the administrator with a PAL that complies with the requirements of this section.

[20.2.74.320 NMAC - N, 1/22/06]


20.2.74.321 to 20.2.74.399  [RESERVED]

20.2.74.400   PUBLIC PARTICIPATION AND NOTIFICATION:

     A.  The Department shall, within thirty (30) days after receipt of an application, review such application and determine whether it is administratively complete or there is any deficiency in the application or information submitted.  To be deemed administratively complete, the application must meet the requirements of 20.2.74.301 NMAC in addition to the requirements of 20.2.72 NMAC.  If the application is deemed:

          (1)  administratively complete, a letter to that effect shall be sent by certified mail to the applicant.

          (2)  administratively incomplete, a letter shall be sent by certified mail to the applicant stating what additional information or points of clarification are necessary to deem the application administratively complete.  Upon receipt of the additional information or clarification, the Department shall promptly review such information and determine whether the application is administratively complete.

          (3)  administratively complete but no permit is required, a letter shall be sent by certified mail to the applicant informing the applicant of the determination.

     B.  For purposes of determining minor source baseline date pursuant to 40 CFR 51:

          (1)  An application is complete when it contains all the information necessary for processing the application.  Designating an application complete for purposes of 40 CFR 51 does not preclude the Department from requesting or accepting any additional information; and

          (2)  In the event that additional information is submitted to remedy any deficiency in the application or information submitted, the date of receipt of the application shall be the date on which the Department received all required information.

     C.  The Department shall:

          (1)  Make a preliminary determination whether construction should be approved, approved with conditions, or disapproved.

          (2)  Make available at the Department district and local office nearest to the proposed source a copy of all materials the applicant submitted, a copy of the preliminary determination, and a copy or summary of other materials, if any, considered in making the preliminary determination.

          (3)  Notify the public by advertisement in a newspaper of general circulation in the area in which the proposed source would be constructed:

               (a)  Of the application,

               (b)  The preliminary determination,

               (c)  The degree of increment consumption that is expected from the source or modification, and

               (d)  Of the opportunity for comment at a public hearing as well as written public comment.  The public comment period shall be for thirty (30) days from the date of such advertisement.

          (4)  Send a copy of the notice of public comment to:

               (a)  The applicant,

               (b)  The Administrator, and

               (c)  Officials and agencies having jurisdiction over the location where the proposed construction would occur as follows:

                    (i)  Any other state or local air pollution control agencies;

                    (ii)  The chief executives of the city and county where the source would be located;

                    (iii)  Any comprehensive regional land use planning agency; and

                    (iv)  Any state, Federal Land Manager, or Indian governing body whose lands may be affected by emissions from the source or modification.

          (5)  Provide opportunity for a public hearing for interested persons to appear and submit written or oral comments on the air quality impact of the source and other appropriate considerations.

          (6)  Consider all written comments submitted within a time specified in the notice of public comment and all comments received at any public hearing(s) in making a final decision on the approvability of the application.  The Department shall make all comments available for public inspection in the same locations where the Department made available preconstruction information relating to the source.

          (7)  Within one hundred eighty (180) days after an application is deemed administratively complete, unless the Secretary, as specified in 20.2.72.207 NMAC, grants an extension not to exceed ninety (90) days for good cause:

               (a)  make a final determination of whether construction should be approved, approved with conditions, or disapproved; and

               (b)  notify the applicant in writing of the final determination and make such notification available for public inspection at the same location where the Department made available preconstruction information and public comments relating to the source.

[07/20/95; 01/01/00; 20.2.74.400 NMAC - Rn, 20 NMAC 2.74.400, 10/31/02]


20.2.74.401    STACK HEIGHT CREDIT:  The Department shall review all applications in accordance with the provisions of 20.2.80 NMAC (Stack Heights) (formerly Air Quality Control Regulation 710 -- Stack Height Requirements).
[07/20/95; 20.2.74.401 NMAC - Rn, 20 NMAC 2.74.401, 10/31/02]


20.2.74.402    EXCLUSIONS FROM INCREMENT CONSUMPTION:  Following a public hearing, the Secretary may exclude the following concentrations in determining compliance with a maximum allowable increase:

     A.  Concentrations due to the increase in emissions from stationary sources, over the emissions from such sources before the effective date of an order under sections 2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation).  Sources must have converted from the use of petroleum products, natural gas, or both by reason of such order.  This exclusion shall not apply more than five (5) years after the effective date of such an order; or

     B.  Concentrations due to the increase in emissions from sources, over the emissions from such sources before the effective date of a plan in effect pursuant to the Federal Power Act.  Sources must have converted from using natural gas by reason of a natural gas curtailment plan.  This exclusion shall not apply more than five (5) years after the effective date of such a plan; or

     C.  Concentrations of particulate matter due to the increase in emissions from construction or other temporary emission-related activities of new or modified sources; or

     D.  The increase in concentrations due to new sources outside the United States over the concentrations attributed to existing sources which are included in the baseline concentrations.

[07/20/95; 20.2.74.402 NMAC - Rn, 20 NMAC 2.74.402, 10/31/02]


20.2.74.403    ADDITIONAL REQUIREMENTS FOR SOURCES IMPACTING CLASS I FEDERAL AREAS:

     A.  The Department shall transmit to the Administrator and the Federal Land Manager a copy of each permit application relating to a major stationary source or major modification proposing to locate within one hundred (100) kilometers of any Class I Federal area.  The complete permit application shall be transmitted within thirty (30) days of receipt and sixty (60) days prior to any public hearing on the application.  The Department shall include all relevant information in the permit application.  Relevant information shall include an analysis of the proposed source's anticipated impacts on visibility in the Class I Federal area.  The Department shall consult with all affected Federal Land Managers as to the completeness of the permit application and shall consider any analysis performed by the Federal Land Manager concerning the impact of the proposed major stationary source or major modification on air quality related values.  This consideration shall include visibility, if such analysis is received within thirty (30) days after the Federal Land Manager receives a copy of the complete application.  Additionally, the Department shall notify any affected Federal Land Manager within thirty days (30) from the date the Department receives a request for a pre-application meeting from a proposed source subject to this Part.  Notice shall be provided to the Administrator and Federal Land Manager of every action related to the consideration of such permit.  The department shall also provide the Federal Land Manager and the Administrator with a copy of the preliminary determination required under 20.2.74.400 NMAC and shall make available to them any materials used in making that determination.  In any case where the Department disagrees with the Federal Land Manager's analysis of source impact on air quality related values, the Department shall, either explain its decision or give notice to the Federal Land Manager as to where the explanation can be obtained.  In the case where the Department disagrees with the Federal Land Managers' analysis, the Department will also explain its decision or give notice to the public by advertisement in a newspaper of general circulation in the area in which the proposed source would be constructed, as to where the decision can be obtained.

     B.  The Department shall transmit to air quality control agencies of neighboring states and Indian governing bodies a copy of each permit application having the potential to affect Class I Federal areas or increment consumption in areas under their jurisdiction.  The Department shall also provide the affected air quality control agencies and Indian governing bodies with a copy of the preliminary determination required under 20.2.74.400 NMAC and shall make available to them any materials used in making that determination.  The Department shall include a provision for a sixty (60) day comment period for the Federal Land Managers before any public hearing on a permit application is held.

     C.  Federal Land Managers may demonstrate to the Department that emissions from a proposed source or modification would have an adverse impact on air quality related values, including visibility, of any Class I Federal lands under their jurisdiction.  This may be done even though the change in air quality resulting from emissions from the proposed source or modification would not cause or contribute to concentrations which would exceed the maximum allowable increases for a Class I Federal area.  If the Department concurs with this demonstration, then the source shall not be issued a permit.

     D.  Class I Waivers:  The owner or operator of a proposed source or modification may demonstrate to the Federal Land Manager that the emissions from a proposed source or modification would have no adverse impact on air quality related values, including visibility, of Class I Federal lands under his or her jurisdiction.  This may be done even though the change in air quality resulting from emissions from such source or modification would cause or contribute to concentrations which would exceed the maximum allowable increases for a Class I Federal area.  If the Federal Land Manager concurs with such demonstration and so certifies to the Department, the Department may grant a waiver from such maximum allowable increases.  Emission limitations must be included in the permit as necessary to assure that emissions of sulfur dioxide, particulate matter, and nitrogen oxides would not exceed the maximum allowable increases over minor source baseline concentrations shown in Table 5 of this Part (20.2.74.505 NMAC).

     E.  For the case where the Federal Land Manager does not perform an impact analysis with respect to visibility impairment in a Class I Federal area, the Department may perform such an analysis.  The Department shall not issue the source a permit if the Department determines that an adverse impact on visibility would occur.  The adverse impact must be due, primarily, to the operation of the proposed source or modification.

     F.  Sulfur Dioxide Waiver by Governor:  The owner or operator of a proposed major stationary source or major modification, which cannot be approved under subsection D of 20.2.74.403 NMAC, may demonstrate to the Governor that the source cannot be constructed by reason of an exceedance of a maximum allowable increase for a Class I Federal area for sulfur dioxide for a period of twenty-four (24) hours or less.  The owner or operator may also demonstrate that a waiver from this requirement would not adversely affect the air quality related values of the Class I Federal area.  The Governor, after consideration of the Federal Land Manager's recommendation and subject to his concurrence, may, after notice and public hearing, grant a waiver from such maximum allowable increase.  If the waiver is granted, the Department shall issue a permit to the owner or operator of the source or modification.  Any owner or operator of a source or modification who obtains a permit under this section shall comply with sulfur dioxide emissions limitations.  These limitations do not allow increases of ambient concentrations, above the baseline concentration, to exceed the levels found in Table 6 of this Part (20.2.74.506 NMAC) for periods of twenty-four (24) hours or less for more than eighteen (18) days, not necessarily consecutive, in any annual period.

     G.  Sulfur Dioxide Waiver by Governor with the President's Concurrence.  In any case where the Governor recommends a waiver in which the Federal Land Manager does not concur, the recommendations of the Governor and the Federal Land Manager shall be transmitted to the President through the office of the Governor.  If the President so directs, the Department shall issue the permit.  Any source or modification that obtains a permit under this section shall comply with sulfur dioxide emissions limitations.  These limitations do not allow increases in ambient concentrations, above the baseline concentration, to exceed the levels found in Table 6 of this Part (20.2.74.506 NMAC) for periods of twenty-four (24) hours or less for more than eighteen (18) days, not necessarily consecutive, in any annual period.

[07/20/95; 20.2.74.403 NMAC - Rn, 20 NMAC 2.74.403, 10/31/02]


20.2.74.404 to 20.2.74.500  [RESERVED]


20.2.74.501    TABLE 1 - PSD SOURCE CATEGORIES.

     A.  Carbon black plants (furnace process)
     B.  Charcoal production plants
     C.  Chemical process plants
     D.  Coal cleaning plants (with thermal dryers)
     E.  Coke oven batteries
     F.  Fossil fuel boilers (or combinations thereof) totaling more than 250 million BTU/hr heat input
     G.  Fossil fuel-fired steam electric plants of more than 250 million BTU/hr heat input
     H.  Fuel conversion plants
     I.  Glass fiber processing plants
     J.  Hydrofluoric acid plants
     K.  Iron and steel mills
     L.  Kraft pulp mills
     M.  Lime plants
     N.  Municipal incinerators capable of charging more than 50 tons of refuse per day
     O.  Nitric acid plants
     P.  Petroleum refineries
     Q.  Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels
     R.  Phosphate rock processing plants
     S.  Portland cement plants
     T.  Primary aluminum ore reduction plants
     U.  Primary copper smelters
     V.  Primary lead smelters
     W.  Primary zinc smelters
     X.  Secondary metal production plants
     Y.  Sintering plants
     Z.  Sulfur recovery plants
     AA.  Sulfuric acid plants
     AB.  Taconite ore processing plants

[07/20/95; 20.2.74.501 NMAC - Rn, 20 NMAC 2.74 Table 1, 10/31/02; A, 1/22/06]


20.2.74.502    TABLE 2 - SIGNIFICANT EMISSION RATES:


POLLUTANT                            EMISSION RATE (TONS/YR)

Carbon monoxide                                100

Fluorides                                        3

Lead                                             0.6

Municipal waste combustor

   Acid gases (measured as sulfur 
   dioxide and hydrogen chloride)         40 (36 megagrams/year)

   Metals (measured as 
   particulate matter                     15 (14 megagrams/year)

 
   Organics (measured as total tetra- 
   through octa-chlorinated dibenzo-p-
   dioxins and dibenzofurans)           0.0000035 (0.0000032 megagrams/yr)

Nitrogen oxides                                 40

Ozone (as VOC, Volatile Organic Compounds)      40 (VOC)

Particulate Matter

   Particulate matter emissions                 25

   PM-10 emissions                              15

Sulfur compounds
  
   Hydrogen sulfide (H2S)                       10

 
   Reduced sulfur compounds (incl. H2S)         10

 
   Sulfur dioxide                               40

 
   Sulfuric acid mist                            7

 
   Total reduced sulfur (incl. H2S)             10

Any other pollutant regulated under 
the act that is not listed in this table    Any emission rate

Each regulated pollutant                  Emission rate or net emissions
                                          increase associated with a major
                                          stationary source or major
                                          modification that causes an air
                                          quality impact of one microgram per
                                          cubic meter or greater (24-hr
                                          average) in any class I federal area
                                          located within 10 km of the source.

[07/20/95; 20.2.74.502 NMAC - Rn, 20 NMAC 2.74 Table 2, 10/31/02; A, 1/22/06]


20.2.74.503    TABLE 3 - SIGNIFICANT MONITORING CONCENTRATIONS.

 
POLLUTANT                    AIR QUALITY CONCENTRATION         AVERAGING TIME
                             micrograms per cubic meter
 

Carbon monoxide                          575                       8 hours

Fluorides                               0.25                      24 hours

Lead                                     0.1                       3 months

Nitrogen dioxide                         14                         Annual

Ozone                                     b
  

Particulate matter (PM-10)               10                       24 hours

Sulfur compounds

   Hydrogen sulfide (H2S)               0.20                        1 hour

 
   Reduced sulfur compounds (incl. H2S)  10                         1 hour

 
   Sulfur dioxide                        13                        24 hours

 
   Sulfuric acid mist                     a   

   Total reduced sulfur (incl. H2S)      10                         1 hour

a - No acceptable monitoring techniques available at this time.  Therefore, monitoring is not required until acceptable techniques are available.

b – No de minimis air quality level is provided for ozone.  However, any net increase of 100 tons per year or more of volatile organic compounds subject to PSD would be required to perform an ambient impact analysis, including the gathering of ambient air quality data.

[07/20/95; 20.2.74.503 NMAC - Rn, 20 NMAC 2.74 Table 3, 10/31/02; A, 1/22/06]


20.2.74.504    TABLE 4 - ALLOWABLE PSD INCREMENTS:

                                        Micrograms per cubic meter (μg/m3)

                                        Class I    Class II     Class III

Nitrogen Dioxide

  annual arithmetic mean                  2.5         25           50

Particulate Matter

  PM10, annual arithmetic mean             4          17          34

  PM10, 24-hour maximum                    8(a)       30(a)       60(a)

Sulfur Dioxide

  annual arithmetic mean                   2           20         40

  24-hour maximum                          5(a)        91(a)     182(a)

  3-hour maximum                           25(a)       512(a)    700(a)

(a) - Not to be exceeded more than once a year.

[07/20/95; 20.2.74.504 NMAC - Rn, 20 NMAC 2.74 Table 4, 10/31/02]


20.2.74.505    TABLE 5 - MAXIMUM ALLOWABLE INCREASES FOR CLASS I WAIVERS:

                                           Micrograms per cubic meter (μg/m3)

Nitrogen Dioxide

  annual arithmetic mean                                 25

Particulate Matter

  PM10, annual arithmetic mean                           17
 
  PM10, 24-hour maximum                                  30

Sulfur Dioxide

   annual arithmetic mean                                 20
 
   24-hour maximum                                        91

   3-hour maximum                                        325

[07/20/95; 20.2.74.505 NMAC - Rn, 20 NMAC 2.74 Table 5, 10/31/02]


20.2.74.506    TABLE 6 - MAXIMUM ALLOWABLE INCREASE FOR SULFUR DIOXIDE WAIVER BY GOVERNOR:

                                          Micrograms per cubic meter (μg/m3)

                                                    Terrain Areas  

Period of Exposure                              Low              High
24-hr. maximum                                   36                62

3-hr. maximum                                   130               221


[07/20/95; 20.2.74.506 NMAC - Rn, 20 NMAC 2.74 Table 6, 10/31/02]

***end 20.2.74 NMAC***EPA-R06-OAR-2005-NM-0006***NM009***NMd20***hy8***