New Mexico Administrative Code
Title 20 - ENVIRONMENTAL PROTECTION
Chapter 11 - ALBUQUERQUE - BERNALILLO COUNTY AIR QUALITY CONTROL BOARD
Part 42 - OPERATING PERMITS
Section 20.11.42.13 - PERMIT PROCESSING
Universal Citation: 20 NM Admin Code 20.11.42.13
Current through Register Vol. 35, No. 18, September 24, 2024
A. Action on permit applications:
(1) A permit
(including permit renewal) or permit modification shall only be issued if all
of the following conditions have been met:
(a) the department has received a complete
application for a permit, permit modification, or permit renewal, except that a
complete application need not be received before issuance of a general permit
under Subsection D of 20.11.42.12 NMAC;
(b) except for administrative and minor
permit modifications, the department has complied with the requirements for
public participation procedures under Subsection B of 20.11.42.13
NMAC;
(c) except for administrative
amendments, the department has complied with the requirements for notifying and
responding to affected programs under Subsection C of 20.11.42.13
NMAC;
(d) the conditions of the
permit provide for compliance with all applicable requirements; and
(e) the administrator has received a copy of
the proposed permit and any notices required under Subsection C of 20.11.42.13
NMAC, and has not objected to issuance of the permit within the time period
specified within that subsection.
(2) The department shall, within 60 days
after its receipt of an application for a permit or significant permit
modification, review such application for completeness. Unless the department
determines that an application is not complete, requests additional information
or otherwise notifies the applicant of incompleteness within 60 days of receipt
of an application, the application shall be deemed complete. When additional
information is requested by the department prior to ruling an application
complete, receipt of such information shall be processed as a new application
for purposes of 20.11.42.13 NMAC. If the application is judged complete, a
certified letter to that effect shall be sent to the applicant. If the
application is judged incomplete a certified letter shall be sent to the
applicant stating what additional information or points of clarification are
necessary to judge the application complete.
(3) The department shall take final action on
each permit application (including a request for permit renewal) within 12
months after an application is ruled complete by the department, except that:
(a) for sources in operation on or before the
effective date of 20.11.42 NMAC and which submit to the department timely and
complete applications in accordance with Subsection A of 20.11.42.12 NMAC, the
department shall take final action on one-third of such applications annually
over a period not to exceed three years after such effective date;
(b) any complete permit application
containing an early reduction demonstration under Section 112(i)(5) of the
federal act shall be acted on within nine months of deeming the application
complete; and
(c) the acid rain
portion of permits for acid rain sources shall be acted upon in accordance with
the deadlines in Title IV of the federal act and the regulations promulgated
thereunder.
(4) If a
timely and complete application for a permit renewal is submitted, consistent
with Subsection A of 20.11.42.12 NMAC, but the department has failed to issue
or disapprove the renewal permit before the end of the term of the previous
permit, then the permit shall not expire and all the terms and conditions of
the permit shall remain in effect until the renewal permit has been issued or
disapproved.
(5) Permits being
renewed are subject to the same procedural requirements, including those for
public participation, affected program, and EPA review that apply to initial
permit issuance.
(6) The department
shall state within the draft permit the legal and factual basis for the draft
permit conditions (including references to the applicable statutory or
regulatory provisions with dates of latest amendments).
(7) The department shall grant or disapprove
the permit based on information contained in the department's administrative
record. The administrative record shall consist of the application, any
additional information submitted by the applicant, any evidence or written
comments submitted by interested persons, any other evidence considered by the
department, and, if a public hearing is held, the evidence submitted at the
hearing.
(8) If the department
grants or disapproves a permit or permit modification, the department shall
notify the applicant by certified mail of the action taken and the reasons
therefore. If the department grants a permit or modification, the department
shall mail the permit or modification, including all terms and conditions, to
the applicant by certified mail.
(9) Voluntary discontinuation. Upon request
by the permittee, the department shall permanently discontinue a 20.11.42 NMAC
permit. Permit discontinuance terminates the permittee's right to operate the
source under the permit. The department shall confirm the permit discontinuance
by certified letter to the permittee.
(10) No permit shall be issued by failure of
the department to act on an application or renewal.
B. Public participation:
(1) Proceedings for all permit issuances
(including renewals), significant permit modifications, reopenings, revocations
and terminations, and all modifications to the department's list of
insignificant activities, shall include public notice and provide an
opportunity for public comment. The department shall provide 30 days for public
and affected program comment. The department may hold a public hearing on the
draft permit for any reason it deems appropriate, and shall hold such a hearing
in the event of significant public interest. The department shall give notice
of any public hearing at least 30 days in advance of the hearing.
(2) Public notice and notice of public
hearing shall be given by publication in a newspaper of general circulation, to
persons on a mailing list developed by the department (including those who
request in writing to be on the list), and by other means if necessary to
assure adequate notice to the affected public.
(3) The public notice shall identify:
(a) the affected facility;
(b) the names and addresses of the applicant
or permittee and its owners;
(c)
the name and address of the department;
(d) the activity or activities involved in
the permit action;
(e) the
emissions change(s) involved in any permit modification;
(f) the name, address and telephone number of
a person from whom interested persons may obtain additional information,
including copies of the permit draft, the application, and relevant supporting
materials;
(g) a brief description
of the comment procedures required by the department; and
(h) as appropriate, a statement of procedures
to request a hearing, or the time and place of any scheduled hearing.
(4) Notice of public hearing shall
identify:
(a) the affected facility;
(b) the names and addresses of the applicant
or permittee and its owners;
(c)
the name and address of the department;
(d) the activity or activities involved in
the permit action;
(e) the name,
address and telephone number of a person from whom interested persons may
obtain additional information;
(f)
a brief description of hearing procedures; and
(g) the time and place of the scheduled
hearing.
(5) The time,
date, and place of the hearing shall be determined by the department. The
department shall appoint a hearing officer. A transcript of the hearing shall
be made at the request of either the department or the applicant and at the
expense of the person requesting the transcript. At the hearing, all interested
persons shall be given a reasonable chance to submit data, views or arguments
orally or in writing and to examine witnesses testifying at the
hearing.
(6) The department shall
keep a record of the commenters and also of the issues raised during the public
participation process so that the administrator may fulfill his or her
obligation under Section 505(b)(2) of the federal act to determine whether a
citizen petition may be granted. Such records shall be available to the public
upon request.
(7) The department
shall provide such notice and opportunity for participation by affected
programs as is provided for by Subsection C of 20.11.42.13 NMAC.
C. Review by the administrator and affected programs:
(1) Notification. The
department shall not issue an operating permit (including permit renewal or
reissuance), minor permit modification, or significant permit modification
until affected programs and the administrator have had an opportunity to review
the proposed permit as required under 20.11.42.13 NMAC. Permits for source
categories waived by the administrator from this requirement and any permit
terms or conditions, which are not required under the federal act or under any
of its requirements, are not subject to administrator review or approval.
(a) Within five days of notification by the
department that the application has been determined complete, the applicant
shall provide a copy of the complete permit application (including the
compliance plan and all additional materials submitted to the department)
directly to the administrator. The permit or permit modification shall not be
issued without certification to the department of such notification. The
department shall provide to the administrator a copy of each draft permit, each
proposed permit, each final operating permit, and any other relevant
information requested by the administrator.
(b) The department shall provide notice of
each draft permit to any affected program on or before the time that the
department provides this notice to the public under Subsection B of 20.11.42.13
NMAC, except to the extent that minor permit modification procedures require
the timing of the notice to be different.
(c) The department shall keep for five years
such records and submit to the administrator such information as the
administrator may reasonably require in order to ascertain whether the program
complies with the requirements of the federal act or related applicable
requirements.
(2)
Responses to objections.
(a) No permit for
which an application must be transmitted to the administrator under 20.11.42
NMAC shall be issued by the department if the administrator, after determining
that issuance of the proposed permit would not be in compliance with applicable
requirements, objects to such issuance in writing within 45 days of receipt of
the proposed permit and all necessary supporting information.
(b) If the administrator does not object in
writing under Subparagraph (a) above, any person may, within 60 days after the
expiration of the administrator's 45-day review period, petition the
administrator to make such objection. Any such petition shall be based only on
objections to the permit that were raised with reasonable specificity during
the public comment period provided for in Subsection B of 20.11.42.13 NMAC,
unless the petitioner demonstrates that it was impracticable to raise such
objections within such period, or unless the grounds for such objection arose
after such period. If the administrator objects to the permit as a result of a
petition filed under this subparagraph, the department shall not issue the
permit until the administrator's objection has been resolved, except that a
petition for review does not stay the effectiveness of a permit or its
requirements if the permit was issued after the end of the 45-day review period
and prior to the administrator's objection.
(c) The department, as part of the submittal
of the proposed permit to the administrator (or as soon as possible after the
submittal for minor permit modification procedures allowed under Paragraph (2),
of Subsection E of 20.11.42.13 NMAC), shall notify the administrator and any
affected program in writing of any refusal by the department to accept all
recommendations for the proposed permit that the affected program submitted
during the public or affected program review period. The notice shall include
the department's reasons for not accepting any such recommendation. The
department is not required to accept recommendations that are not based on
federally enforceable applicable requirements.
D. Petitions for review of final action:
(1) Hearing before the board.
(a) Any person who participated in a
permitting action before the department and who is adversely affected by such
permitting action may file a petition for hearing before the board. For the
purposes of 20.11.42.13 NMAC, permitting action shall include the failure of
the department to take final action on an application for a permit (including
renewal) or permit modification within the time specified in 20.11.42
NMAC.
(b) The petition shall be
made in writing to the board within 30 days from the date notice is given of
the department's action and shall specify the portions of the permitting action
to which the petitioner objects, certify that a copy of the petition has been
mailed or hand-delivered as required by this subparagraph, and attach a copy of
the permitting action for which review is sought. Unless a timely request for
hearing is made, the decision of the department shall be final. The petition
shall be copied simultaneously to the department upon receipt of the appeal
notice. If the petitioner is not the applicant or permittee, the petitioner
shall mail or hand-deliver a copy of the petition to the applicant or
permittee. The department shall certify the administrative record to the
board.
(c) If a timely request for
hearing is made, the board shall hold a hearing within 90 days of receipt of
the petition in accordance with the joint air quality control board ordinances
pursuant to the New Mexico Air Quality Control Act Section
74-2-7
NMSA 1978.
(2) Judicial
review.
(a) Any person who is adversely
affected by an administrative action taken by the board pursuant to Paragraph
(1), of Subsection D of 20.11.42.13 NMAC may appeal to the court of appeals in
accordance with the joint air quality control board ordinances pursuant to the
New Mexico Air Quality Control Act Section
74-2-9
NMSA 1978. Petitions for judicial review must be filed no later than 30 days
after the administrative action.
(b) The judicial review provided for by
Subsection D of 20.11.42.13 NMAC shall be the exclusive means for obtaining
judicial review of the terms and conditions of the permit.
E. Permit modifications:
(1) Administrative permit amendments.
(a) An administrative permit amendment is one
that:
(i) corrects typographical
errors;
(ii) provides for a minor
administrative change at the source, such as a change in the address or phone
number of any person identified in the permit;
(iii) incorporates a change in the permit
solely involving the retiring of an emissions unit;
(iv) requires more frequent monitoring or
reporting by the permittee; or
(v)
any other type of change which has been determined by the department and the
administrator to be similar to those in this paragraph.
(b) Changes in ownership or operational
control of a source may be made as administrative amendments provided that:
(i) a written agreement, containing a
specific date for transfer of permit responsibility, coverage, and liability
between the current and new permittee, has been submitted to the department,
and either the department has determined that no other change in the permit is
necessary, or changes deemed necessary by the department have been
made;
(ii) the new owners have
submitted the application information required in Subparagraph (b), of
Paragraph (4), Subsection A of 20.11.42.12 NMAC;
(iii) no grounds exist for permit
termination, as set out in Items (ii) and (iii), of Subparagraph (c), of
Paragraph (1), of Subsection F of 20.11.42.13 NMAC; and
(iv) the permittee has published a public
notice of the change in ownership of the source in a newspaper of general
circulation in the area where the source is located.
(c) The department may incorporate
administrative permit amendments without providing notice to the public or
affected programs, provided that it designates any such permit modifications as
administrative permit amendments and submits a copy of the revised permit to
the administrator.
(d) The
department shall take no more than 60 days from receipt of a request for an
administrative permit amendment to take final action on such request. The
permittee may implement the changes outlined in Items (i) through (iv), of
Subparagraph (a), of Paragraph (1), of Subsection E of 20.11.42.13 NMAC
immediately upon submittal of the request for the administrative amendment. The
permittee may implement the changes outlined in Item (v), of Subparagraph (a),
of Paragraph (1), of Subsection E of 20.11.42.13 NMAC or Subparagraph (b), of
Paragraph (1), Subsection E of 20.11.42.13 NMAC above upon approval of the
administrative amendment by the department.
(2) Minor permit modifications.
(a) Minor permit modification procedures may
be used only for those permit modifications that:
(i) do not violate any applicable
requirement;
(ii) do not involve
relaxation of existing monitoring, reporting, or record keeping requirements in
the permit;
(iii) do not require or
change a case-by-case determination of an emission limitation or other
standard, or a source-specific determination for temporary sources of ambient
impacts, or a visibility or increment analysis;
(iv) do not seek to establish or change a
permit term or condition for which there is no corresponding underlying
applicable requirement and that the permittee has assumed to avoid an
applicable requirement to which the source would otherwise be subject; such
terms and conditions include any federally enforceable emissions cap assumed to
avoid classification as a Title I modification and any alternative emissions
limit approved pursuant to regulations promulgated under Section 112(i)(5) of
the federal act;
(v) are not Title
I modifications; and
(vi) are not
required by the department to be processed as a significant modification
pursuant to Paragraph (3), Subsection E of 20.11.42.13
NMAC.
(b) A permittee
shall not submit multiple minor permit modification applications that may
conceal a larger modification that would not be eligible for minor permit
modification procedures. The department may, at its discretion, require that
multiple related minor permit modification applications be submitted as a
significant permit modification.
(c) An application requesting the use of
minor permit modification procedures shall meet the requirements of Paragraphs
(3) and (4), of Subsection A of 20.11.42.12 NMAC and shall include:
(i) a description of the change, the
emissions resulting from the change, and any new applicable requirements that
will apply if the change occurs;
(ii) the applicant's suggested draft
permit;
(iii) certification by a
responsible official, consistent with Paragraph (5), of Subsection A of
20.11.42.12 NMAC, that the proposed modification meets the criteria for use of
minor permit modification procedures and a request that such procedures be
used; and
(iv) if the requested
permit modification would affect existing compliance plans or schedules,
related progress reports, or certification of compliance requirements, an
outline of such effects.
(d) The department shall, within 30 days
after its receipt of an application for a minor permit modification, review
such application for completeness. Unless the department determines that an
application is not complete, requests additional information or otherwise
notifies the applicant of incompleteness within 30 days of receipt of an
application, the application shall be deemed complete. If the application is
judged complete, a certified letter to that effect shall be sent to the
applicant. If the application is judged incomplete a certified letter shall be
sent to the applicant stating what additional information or points of
clarification are necessary to judge the application complete.
(e) Within five working days of notification
by the department that the minor permit modification application has been ruled
complete, the applicant shall meet its obligation under Paragraph (1), of
Subsection C of 20.11.42.13 NMAC to notify the administrator and affected
programs of the requested permit modification. The department promptly shall
send any notice required under Subparagraph (b), of Paragraph (1), of
Subsection C of 20.11.42.13 NMAC and Paragraph (2), of Subsection C of
20.11.42.13 NMAC to the administrator and affected programs.
(f) The permittee may make the change
proposed in its minor permit modification application immediately after such
application is deemed complete. After the permittee makes the change allowed by
the preceding sentence, and until the department takes any of the actions
specified in Subparagraph (g), of Paragraph (2), of Subsection E of 20.11.42.13
NMAC below, the permittee must comply with both the applicable requirements
governing the change and the proposed permit terms and conditions. During this
time period, the permittee need not comply with the existing permit terms and
conditions it seeks to modify. If the permittee fails to comply with its
proposed permit terms and conditions during this time period, the existing
permit terms and conditions it seeks to modify may be enforced against
it.
(g) The department may not
issue a final minor permit modification until after the administrator's 45-day
review period of the proposed permit modification or until EPA has notified the
department that the administrator will not object to issuance of the permit
modification, although the department may approve the permit modification prior
to that time. Within 90 days of ruling the application complete under minor
permit modification procedures or within 15 days after the end of the
administrator's 45-day review period under, whichever is later, the department
shall:
(i) issue the permit modification as
it was proposed;
(ii) disapprove
the permit modification application;
(iii) determine that the requested
modification does not meet the minor permit modification criteria and should be
reviewed under the significant modification procedures; or
(iv) revise the draft permit modification and
transmit to the administrator the new proposed permit modification as required
by Paragraph (1), of Subsection C of 20.11.42.13
NMAC.
(3)
Significant permit modifications.
(a) A
significant permit modification is:
(i) any
revision to an operating permit that does not meet the criteria under the
provisions for administrative permit amendments under Paragraph (1), of
Subsection E of 20.11.42.13 NMAC or for minor permit modifications under
Paragraph (2), of Subsection E of 20.11.42.13 NMAC above;
(ii) any modification that would result in
any relaxation in existing monitoring, reporting or record keeping permit terms
or conditions;
(iii) any
modification for which action on the application would, in the judgment of the
department, require decisions to be made on significant or complex issues;
and
(iv) changes in ownership which
do not meet the criteria of Subparagraph (b), of Paragraph (1), of Subsection E
of 20.11.42.13 NMAC.
(b)
For significant modifications which are not required to undergo
pre-construction permit review and approval, changes to the source which
qualify as significant permit modifications shall not be made until the
department has issued the operating permit modification.
(c) For significant modifications which have
undergone pre-construction permit review and approval, the permittee shall:
(i) before commencing operation, notify the
department in writing of any applicable requirements and operating permit terms
and conditions contravened by the modification, emissions units affected by the
change, and allowable emissions increases resulting from the modification;
and
(ii) within 12 months after
commencing operation, file a complete operating permit modification
application.
(d) Where an
existing operating permit would specifically prohibit such change, the
permittee must obtain an operating permit modification before commencing
operation or implementing the change.
(e) Significant permit modifications shall
meet all requirements of 20.11.42 NMAC for permit issuance, including those for
applications, public participation, review by affected programs and review by
the administrator.
(f) The
department shall complete review on the majority of significant permit
modification applications within nine months after the department rules the
applications complete.
(4) Modifications to acid rain sources.
Administrative permit amendments and permit modifications for purposes of the
acid rain portion of the permit shall be governed by regulations promulgated by
the administrator under Title IV of the federal act.
F. Permit reopening, revocation or termination:
(1) Action by the department.
(a) Each permit shall include provisions
specifying the conditions under which the permit will be reopened prior to the
expiration of the permit. A permit shall be reopened and revised for any of the
following, and may be revoked and reissued for (iii) or (iv) of the following:
(i) additional applicable requirements under
the federal act become applicable to a major source with a remaining permit
term of three or more years; such a reopening shall be completed not later than
18 months after promulgation of the applicable requirement; no such reopening
is required if the effective date of the requirement is later than the date on
which the permit is due to expire, unless the original permit or any of its
terms or conditions have been extended past the expiration date of the permit
pursuant to Paragraph (4), Subsection A of 20.11.42.13 NMAC;
(ii) additional requirements (including
excess emissions requirements) become applicable to a source under the acid
rain program promulgated under Title IV of the federal act; upon approval by
the administrator, excess emissions offset plans shall be deemed to be
incorporated into the permit;
(iii)
the department or the administrator determines that the permit contains a
material mistake or that inaccurate statements were made in establishing the
terms or conditions of the permit; or
(iv) the department or the administrator
determines that the permit must be revised or revoked and reissued to assure
compliance with the applicable requirements.
(b) Proceedings to reopen and revise, or
revoke and reissue, a permit shall affect only those parts of the permit for
which cause to reopen or revoke exists. Units for which permit conditions have
been revoked shall not be operated until permit reissuance. Reopenings shall be
made as expeditiously as practicable.
(c) A permit, or an authorization to operate
under a general permit, may be terminated when:
(i) the permittee fails to meet the
requirements of an approved compliance plan;
(ii) the permittee has been in significant or
repetitious non-compliance with the operating permit terms or
conditions;
(iii) the applicant or
permittee has exhibited a history of willful disregard for environmental laws
of any state or tribal authority, or of the United States;
(iv) the applicant or permittee has knowingly
misrepresented a material fact in any application, record, report, plan, or
other document filed or required to be maintained under the permit;
(v) the permittee fails to pay fees required
under the fee schedule in 20.11.2 NMAC;
(vi) the permittee falsifies, tampers with or
renders inaccurate any monitoring device or method required to be maintained
under the permit;
(vii) the
administrator has found that cause exists to terminate the
permit.
(d) The department
shall, by certified mail, provide a notice of intent to the permittee at least
30 days in advance of the date on which a permit is to be reopened or revoked,
or terminated, except that the department may provide a shorter time period in
the case of an emergency.
(2) Action by the administrator. Within 90
days, or longer if the administrator extends this period, after receipt of
written notification that the administrator has found that cause exists to
terminate, modify or revoke and reissue a permit the department shall forward
to the administrator a proposed determination of termination, modification, or
revocation and reissuance, as appropriate. Within 90 days from receipt of an
administrator objection to a proposed determination, the department shall
address and act upon the administrator's objection.
(3) Compliance orders. Notwithstanding any
action which may be taken by the department or the administrator under
Paragraph (1) and (2), of Subsection F of 20.11.42.13 NMAC, a compliance order
issued in accordance with the joint air quality control board ordinances
pursuant to the New Mexico Air Quality Control Act Section
74-2-12
NMSA 1978 may include a suspension or revocation of any permit or portion
thereof.
G. Citizen suit: Pursuant to Section 304 of the federal act, 42 USC 7604, any person may commence certain civil actions under the federal act.
H. Enforcement: Notwithstanding any other provision in the New Mexico state implementation plan approved by the administrator, any credible evidence may be used for the purpose of establishing whether a person has violated or is in violation of any such plan.
(1) Presumptively credible evidence.
Information from the use of the following methods is presumptively credible
evidence of whether a violation has occurred at the source:
(a) a monitoring method approved for the
source pursuant to 20.11.42 NMAC and incorporated into an operating permit;
or
(b) compliance methods specified
in the applicable plan.
(2) Presumptively credible testing,
monitoring, or information gathering methods. The following testing, monitoring
or information gathering methods are presumptively credible testing, monitoring
or information gathering methods:
(a) any
federally enforceable monitoring or testing methods, including those in 40 CFR
parts 51, 60, 61 and 75; and
(b)
other testing, monitoring or information gathering methods that produce
information comparable to that produced by any method in Paragraphs (1) or (2),
of Subsection H of 20.11.42.13 NMAC.
Disclaimer: These regulations may not be the most recent version. New Mexico may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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