N.M. Code R. § 20.2.70.404

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

Section 20.2.70.404 - PERMIT MODIFICATIONS

A. Administrative Permit Amendments:

(1) An administrative permit amendment is one that:

(a) Corrects typographical errors;

(b) Provides for a minor administrative change at the source, such as a change in the address or phone number of any person identified in the permit;

(c) Incorporates a change in the permit solely involving the retiring of an emissions unit;

(d) Requires more frequent monitoring or reporting by the permittee; or

(e) Any other type of change which has been determined by the Department and the Administrator to be similar to those in this paragraph.

(2) Changes in ownership or operational control of a source may be made as administrative amendments provided that:

(a) A written agreement, containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee, has been submitted to the Department, and either the Department has determined that no other change in the permit is necessary, or changes deemed necessary by the Department have been made;

(b) The new owners have submitted the application information required in paragraph (2) of subsection D of 20.2.70.300 NMAC;

(c) No grounds exist for permit termination, as set out in subparagraphs (b) and (c) of paragraph (3) of subsection A of 20.2.70.405 NMAC; and

(d) The permittee has published a public notice of the change in ownership of the source in a newspaper of general circulation in the area where the source is located.

(3) The Department may incorporate administrative permit amendments without providing notice to the public or affected programs, provided that it designates any such permit modifications as administrative permit amendments and submits a copy of the revised permit to the Administrator.

(4) The Department shall take no more than sixty (60) days from receipt of a request for an administrative permit amendment to take final action on such request. The permittee may implement the changes outlined in subparagraphs (a) through (d) of paragraph (1) of subsection A of 20.2.70.404 NMAC immediately upon submittal of the request for the administrative amendment. The permittee may implement the changes outlined in subparagraph (e) of paragraph (1) of subsection A of 20.2.70.404 NMAC or paragraph (2) of subsection A of 20.2.70.404 NMAC upon approval of the administrative amendment by the Department.

B. Minor Permit Modifications:

(1) Minor permit modification procedures may be used only for those permit modifications that:

(a) Do not violate any applicable requirement;

(b) Do not involve relaxation of existing monitoring, reporting, or recordkeeping requirements in the permit;

(c) Do not require or change a case-by-case determination of an emission limitation or other standard, or a source-specific determination for temporary sources of ambient impacts, or a visibility or increment analysis;

(d) Do not seek to establish or change a permit term or condition for which there is no corresponding underlying applicable requirement and that the permittee has assumed to avoid an applicable requirement to which the source would otherwise be subject. Such terms and conditions include any federally enforceable emissions cap assumed to avoid classification as a title I modification and any alternative emissions limit approved pursuant to regulations promulgated under section 112(i)(5) of the Federal Act;

(e) Are not title I modifications; and

(f) Are not required by the Department to be processed as a significant modification pursuant to subsection C of 20.2.70.404 NMAC.

(2) A permittee shall not submit multiple minor permit modification applications that may conceal a larger modification that would not be eligible for minor permit modification procedures. The Department may, at its discretion, require that multiple related minor permit modification applications be submitted as a significant permit modification.

(3) An application requesting the use of minor permit modification procedures shall meet the requirements of subsections C and D of 20.2.70.300 NMAC and shall include:

(a) A description of the change, the emissions resulting from the change, and any new applicable requirements that will apply if the change occurs;

(b) The applicant's suggested draft permit;

(c) Certification by a responsible official, consistent with subsection E of 20.2.70.300 NMAC, that the proposed modification meets the criteria for use of minor permit modification procedures and a request that such procedures be used; and

(d) If the requested permit modification would affect existing compliance plans or schedules, related progress reports, or certification of compliance requirements, an outline of such effects.

(4) The Department shall, within thirty (30) days after its receipt of an application for a minor permit modification, review such application for completeness. Unless the Department determines that an application is not complete, requests additional information or otherwise notifies the applicant of incompleteness within thirty (30) days of receipt of an application, the application shall be deemed complete. If the application is judged complete, a certified letter to that effect shall be sent to the applicant. If the application is judged incomplete a certified letter shall be sent to the applicant stating what additional information or points of clarification are necessary to judge the application complete.

(5) Within five (5) working days of notification by the Department that the minor permit modification application has been determined complete, the applicant shall meet its obligation under subsection A of 20.2.70.402 NMAC to notify the Administrator of the requested permit modification. The Department promptly shall send any notice required under paragraph (2) of subsection A of 20.2.70.402 NMAC and subsection B of 20.2.70.402 NMAC to the Administrator and affected programs.

(6) The permittee may make the change proposed in its minor permit modification application immediately after such application is deemed complete. After the permittee makes the change allowed by the preceding sentence, and until the Department takes any of the actions specified in paragraph (7) of subsection B of 20.2.70.404 NMAC below, the permittee must comply with both the applicable requirements governing the change and the proposed permit terms and conditions. During this time period, the permittee need not comply with the existing permit terms and conditions it seeks to modify. If the permittee fails to comply with its proposed permit terms and conditions during this time period, the existing permit terms and conditions it seeks to modify may be enforced against it.

(7) The Department may not issue a final minor permit modification until after the Administrator's 45-day review period of the proposed permit modification or until US EPA has notified the Department that the Administrator will not object to issuance of the permit modification, although the Department may approve the permit modification prior to that time. Within ninety (90) days of ruling the application complete under minor permit modification procedures or within fifteen (15) days after the end of the Administrator's 45-day review period, whichever is later, the Department shall:

(a) Issue the permit modification as it was proposed;

(b) Disapprove the permit modification application;

(c) Determine that the requested modification does not meet the minor permit modification criteria and should be reviewed under the significant modification procedures; or

(d) Revise the draft permit modification and transmit to the Administrator the new proposed permit modification as required by subsection A of 20.2.70.402 NMAC.

C. Significant Permit Modifications:

(1) A significant permit modification is:

(a) Any revision to an operating permit that does not meet the criteria under the provisions for administrative permit amendments under subsection A of 20.2.70.404 NMAC or for minor permit modifications under subsection B of 20.2.70.404 NMAC above;

(b) Any modification that would result in any relaxation in existing monitoring, reporting or recordkeeping permit terms or conditions;

(c) Any modification for which action on the application would, in the judgment of the Department, require decisions to be made on significant or complex issues; and

(d) Changes in ownership which do not meet the criteria of paragraph (2) of subsection A of 20.2.70.404 NMAC.

(2) For significant modifications which are not required to undergo preconstruction permit review and approval, changes to the source which qualify as significant permit modifications shall not be made until the Department has issued the operating permit modification.

(3) For significant modifications which have undergone preconstruction permit review and approval, the permittee shall:

(a) Before commencing operation, notify the Department in writing of any applicable requirements and operating permit terms and conditions contravened by the modification, emissions units affected by the change, and allowable emissions increases resulting from the modification; and

(b) Within twelve (12) months after commencing operation, file a complete operating permit modification application.

(4) Where an existing operating permit would specifically prohibit such change, the permittee must obtain an operating permit modification before commencing operation or implementing the change.

(5) Significant permit modifications shall meet all requirements of this Part for permit issuance, including those for applications, public participation, review by affected programs and review by the Administrator.

(6) The Department shall complete review on the majority of significant permit modification applications within nine (9) months after the Department rules the applications complete.

D. Modifications to Acid Rain Sources: Administrative permit amendments and permit modifications for purposes of the acid rain portion of the permit shall be governed by regulations promulgated by the Administrator under title IV of the Federal Act.

N.M. Code R. § 20.2.70.404

11/30/95; 20.2.70.404 NMAC - Rn, 20 NMAC 2.70.404, 06/14/02