Do I need a Permit
Do I Need a Permit?
Overview & Guidance to New Mexico NSR Air Permitting Requirements
The NMAC regulations cited in this document can be found here.
You should read the applicability sections of these permit and NOI regulations carefully, since this guidance is only a brief summary.
The Air Quality Bureau (AQB) Permitting Section processes permit applications for industries that emit pollutants to the air. The Permit Programs Section consists of three programs: Minor Source, Major Source, and Technical Services.
The four types of Permits issued for industrial facilities are minor construction permits, PSD permits, Nonattainment permits, and Title V permits. Some facilities may not require a permit, but may still be required to submit a Notice of Intent to construct (NOI).
Minor Construction Permits (20.2.72 NMAC)
Minor Construction Permits are required for facilities with potential emissions either greater than 10 pounds per hour (pph) or 25 tons per year (tpy) of pollutants with a national or state ambient air quality standard (such as nitrogen oxides and carbon monoxide). A minor source permit is also required for facilities that emit New Mexico Toxic Air Pollutants (NMTAPs) at certain pound per hour levels. See the Tables in the regulation at 22.214.171.1242 NMAC for a list of NMTAPs. Information on NMTAPs can also be found on the NM Toxic Air Pollutants web pages. This permit must be obtained before the facility is constructed or modified.
Prevention of Significant Deterioration Construction Permits (20.2.74 NMAC)
Prevention of Significant Deterioration (PSD) Construction Permits are required for PSD Major Stationary Sources. A PSD permit must be obtained before the facility is constructed or modified. A PSD permit must be obtained if a source is one listed in Table 1 of 126.96.36.1991 NMAC and the facility emits actual (or potential) stack plus fugitive emissions in quantities greater than or equal to 100 tpy of any regulated air pollutant; or if it is not listed in Table 1, and is a facility with actual (or potential) stack emissions only, not including fugitive emissions, of any regulated air pollutant in quantities greater than or equal to 250 tpy.
Note: PSD permit applications may require up to a year of pre-construction air monitoring prior to submittal of a PSD application.
Nonattainment Construction Permits (20.2.79 NMAC)
A nonattainment area is an area in which at least one national or state ambient air quality standard is not being met. This type of permit may be required if the facility will be located in a designated nonattainment area, or in some cases, if the facility itself cannot meet a state or federal ambient air quality standard. This permit is required before construction or modification of the facility.
Title V Operating Permits (20.2.70 NMAC)
Title V Operating Permits are required for Title V major stationary sources that have actual or potential emissions equal to or greater than 100 tons per year of any regulated air pollutant; have actual or potential emissions equal to or greater than 10 tons per year of a single Hazardous Air Pollutant (HAP) or 25 tons per year of any combination of Hazardous Air Pollutants; or for all Air Curtain Incinerators and some municipal solid waste landfills. Title V Operating permit applications are due 12 months after the facility starts operating.
Notice of Intent
Notice of intent to construct (NOI) – A NOI is not a permit, but submittal of a notice of intent (NOI) is required for facilities that have potential emissions of more than 10 tons per year (tpy) of any regulated air contaminant. The notice of intent shall be filed prior to the commencement of construction. Construction shall not begin prior to issuance of a written determination by the department that a permit is not required, or if a permit is required, prior to the issuance of the permit under 20.2.72 NMAC, 20.2.74 NMAC or 20.2.79 NMAC.
No Permit Required
A facility’s owner/operator may submit emissions calculations and supporting documentation requesting a no permit required (NPR) determination in writing from the Department if the owner/operator believes they do not require either a permit or are below the applicability threshold of the requirement to submit a notice of intent (NOI) (20.2.73 NMAC). To be eligible for an NPR determination, a facility’s potential emission rate (PER) must be no more than 10 pounds per hour (pph) of any regulated air pollutant with a national or state ambient air quality standard; no more than 10 tons per year (tpy) of any regulated air pollutant, except for greenhouse gas emissions; and/or no more than 1 ton per year (tpy) of lead. NPRs are not required by regulation but are processed as a courtesy.
Note: Volatile organic compounds (VOCs) are regulated under the Title V (20.2.70 NMAC), NOI (20.2.73 NMAC), PSD (20.2.74 NMAC), and Nonattainment (20.2.79 NMAC) permit regulations, but do not trigger the a requirement for a permit under the minor construction permit regulation (20.2.72 NMAC). However, facilities with VOC emissions in sufficient quantities to trigger the applicability threshold of the requirement to submit a notice of intent must submit a notice of intent per 20.2.73 NMAC.
Potential to Emit and Potential Emission Rate
Determining if one of these air permit/NOI regulations are required is based on the potential emission rate or potential to emit (PER or PTE) of the entire facility. Depending on the regulation under consideration, determining what permit or notification may be required is based either on PTE or PER.
Both the 20.2.72 and 20.2.73 NMAC regulations use the term potential emission rate or PER when determining if a permit or an NOI is required. For these regulations, the PER of the facility is the worst-case emission rate of the facility without controls or other limits on operations unless the controls or limits are federally enforceable by federal regulations, such as in 40 CFR 60 and 40 CFR 63. Finally, the PER definition also allows an owner/operator to take credit for controls in state air regulations, such as 20.2.38 NMAC.
The 20.2.70, 20.2.74, and 20.2.79 NMAC permit regulations require the use of PTE when determining if a permit is required. The definition for PTE is the same as PER, except an owner/operator cannot take credit for state only enforceable regulations. For the Title V, PSD, and nonattainment regulations, the PTE of the facility is the worst-case emission rate of the facility without controls or other limits on operations unless the controls or limits are federally enforceable by federal regulations, such as in 40 CFR 60 and 40 CFR 63, or by conditions in a permit.
In most cases, to determine if a permit or notice of intent is required, emissions from the facility are required to be calculated as if the facility were operating continuously, 8760 hours per year (24 hrs/day, 365 days/yr). Do not assume lesser hours of operation without consulting with and obtaining the approval of the Air Quality Bureau Permit Section. Failure to do so is likely to result in significant wasted effort and time for the applicant.
If you qualify as a small business, you may be eligible to receive technical assistance and/or a reduction in permit fees. To find out if you meet the criteria for either or both, please read: Do I Qualify as a Small Business?
Conclusion and Contacts
If you determine your facility needs a permit or notice of intent, you will need to read all of 20.2.72 NMAC, 20.2.73 NMAC, 20.2.74 NMAC, 20.2.79 NMAC, and/or 20.2.70 NMAC. Many companies hire a consultant if they are not familiar with these regulations. We can provide a list of consultants who have submitted applications to the AQB.
If you are a small business, you may want to contact the Air Quality Bureau’s Small Business Environmental Assistance Program (SBEAP). Information about the program and a list of staff contacts may be found by visiting the SBEAP Home Page.
This document is intended to serve as general guidance and is in no way a formal statement of Department policy as determining whether a facility needs a permit or NOI is too complicated to be fully covered by this introductory guidance. Unique operating conditions may result in different determinations and may require a site specific analysis to accurately determine requirements and applicability.