N.M. Code R. § 20.11.42.13

Current through Register Vol. 35, No. 11, June 11, 2024

Section 20.11.42.13 - PERMIT PROCESSING

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.

N.M. Code R. § 20.11.42.13

3/1/94. . .12/1/95; 20.11.42.13 NMAC - Rn, 20 NMAC 11.42.II.2, 10/1/02; A, 8/10/09