N.M. Code R. § 20.2.72.405
Current through Register Vol. 35, No. 11, June 11, 2024
Section 20.2.72.405 - PERMIT DECISIONSIn making its decisions, the Department shall consider emissions after control.
A. Ambient concentrations not exceeding one one-hundredth of the OEL or the minimum detection level for compounds without an OEL: If the Department finds that the eight-hour average concentration of the toxic air pollutant in the ambient air does not exceed one one-hundredth of the OEL, or for compounds without an OEL, the minimum detection levels as shown in 20.2.72.502 NMAC, the Department shall grant the permit. The administrative screening level of one one-hundredth the OEL and the OEL shall not be a basis for denying a permit and shall not constitute an ambient air quality standard.B. Ambient concentrations exceeding one one-hundredth of the OEL or the minimum detection level for compounds without an OEL for substances identified as known or suspected human carcinogens in 20.2.72.502 NMAC: If the toxic air pollutant being considered is identified as a known or suspected carcinogen in 20.2.72.502 NMAC, Table B, and the Department finds the eight-hour concentration of the toxic air pollutant in the ambient air exceeds one one-hundredth of the OEL, or for compounds without an OEL, the minimum detection level, the Department shall grant the permit if the applicant implements the best available control technology to control that pollutant.C. Ambient concentrations exceeding one one-hundredth of the OEL for substances not identified as carcinogens in 20.2.72.502 NMAC: (1) If the applicant has been required to prepare a health assessment under Subsection B of 20.2.72.403 NMAC, the Department shall prepare a Summary Review Statement (SRS) which indicates the Department's opinion of the adequacy of the applicant's health assessment. The SRS will include a summary recommendation on whether the issuance of a permit will or will not with reasonable probability injure human health.(2) If the applicant does not agree with the recommendation contained in the SRS, the applicant's assessment and the SRS will be provided to the Air Toxics Scientific Advisory Committee (ATSAC). The ATSAC will be composed of five members appointed by the Secretary. They will include physicians, toxicologists, industrial hygienists, or others knowledgeable of the potential health and environmental effects of air pollution. The committee will include at least one member nominated by the applicant. The ATSAC will review the applicant's assessment and the SRS in a public meeting. The ATSAC shall provide a letter to the Secretary stating: (1) whether the submitted documents provide a scientifically adequate basis to determine whether the proposed source will with reasonable probability injure human health and(2) if the documents do provide an adequate basis, whether the proposed source will with reasonable probability injure human health. If the documents are scientifically inadequate, the ATSAC shall return them to the Department and indicate their inadequacies.(3) The Department will make a final decision on the issuance of the permit after consideration of the following factors: (a) The nature of the toxic air pollutant and the size, susceptibility, and proximity of the human population;(b) The pathways of human exposure (e.g., ingestion, inhalation, skin absorption);(c) The short term and long term health effects associated with the toxic air pollutant at levels of exposure commensurate with the anticipated exposure level;(d) Existing epidemiological data on health effects associated with the anticipated levels of exposure;(e) The character of the land use of the predicted area of impact (e.g., residential, industrial, and recreational); and(f) The scientific adequacy of the health and environmental assessment submitted by the applicant and the recommendation of the ATSAC. The Department shall not rely on the OEL or on the administrative screening level of one one-hundredth the OEL, and it shall not be bound by prior permit decisions when considering pending applications.(4) The Department shall deny any application for a permit evaluated under Subsection C of 20.2.72.405 NMAC if the source will emit a toxic air pollutant in such quantities and duration as may with reasonable probability injure human health.D. The Department shall document, in the administrative record, all processes, facts, and reasoning relied on in making the permit decision, including citations to the relevant technical data, publications, and expert opinions considered. (1) The final deliberations of the ATSAC shall be open to the public. Except for requests by members of the ATSAC for input from the applicant or Department, no other comments from the applicant, Department, or audience shall be allowed during final deliberations.(2) Prior to a final decision, the ATSAC members may communicate among themselves in order to facilitate the evaluation process. However, all ATSAC members shall be apprised of such communications.(3) Prior to a final decision, the ATSAC members may also communicate with the Department and applicant in order to clarify information or secure additional information concerning the applicant's health assessment or the Department's SRS. The Department, applicant, and all ATSAC members shall be apprised of such communication.N.M. Code R. § 20.2.72.405