NMED News:
The Air Quality Bureau (“Bureau”) in the Environmental Protection Division of the New Mexico Environment Department proposes to repeal and replace 20.2.70 NMAC, Operating Permits, to address a mandate by the U.S. Environmental Protection Agency (“EPA”) directing the removal of certain affirmative defense provisions in the New Mexico Title V Permit Program at 20.2.70.304 NMAC, Emergency Provision.
July 12, 2023 (88 FR 47029), the EPA removed the “emergency” affirmative defense provisions from Clean Air Act (“CAA”) operating permit program regulations at 40 CFR 70.6(g) (applicable to state/local/tribal permitting authorities) and 71.6(g) (applicable when EPA is the permitting authority).
These provisions established an affirmative defense that stationary sources could have asserted to avoid liability in enforcement cases brought for noncompliance with technology-based emission limits contained in the source’s Title V permit, provided that the source demonstrated that excess emissions occurred due to qualifying “emergency” circumstances.
These provisions, which have never been required elements of state operating permit programs, are being removed because they are inconsistent with the EPA’s interpretation of the enforcement structure of the CAA in light of recent court decisions from the U.S. Court of Appeals for the D.C. Circuit, specifically the Court’s decision in NRDC v. EPA, 749 F.3d 1055. (D.C. Cir. 2014).
The July 12, 2023 EPA Rule requires state, local, and tribal permitting authorities to submit program revisions to the EPA to remove similar Title V affirmative defense provisions from their EPA-approved Title V programs, no later than August 21, 2024. Aug. 21, 2024, the Bureau submitted a letter to EPA requesting an extension of this deadline until Aug. 21, 2025. Sept. 17, 2024, this request was granted.
In order to implement the program revisions that may be necessary, Title V affirmative defense provisions included within individual operating permits will also need to be removed. EPA expects these permit changes will occur in the ordinary course of business as permits are periodically renewed, revised, or reopened for other reasons. At the latest, states would be expected to remove affirmative defense provisions from individual permits by the next periodic permit renewal that occurs following either (1) the effective date of the federal rule change (Aug. 21, 2023) (for permit terms based on 40 CFR 70.6(g) or 71.6(g)) or (2) the EPA’s approval of state program revisions (for permit terms based on a state affirmative defense provision).
In addition, EPA provided a comment to the Department, indicating that one of the “Applicable Requirements” cited at 40 CFR 70.2.(7) is missing from the definition of “Applicable Requirement”, at Subsection E of 20.2.70.7 NMAC. To address this deficiency, new text is proposed at Paragraph (7) of Subsection E of 20.2.70.7 NMAC. The Department has also identified an incongruity between the federal rule at 40 CFR 70.2 Applicable Requirement, and the current NM Title V permit regulation at Paragraphs (11) and (12) of Subsection E of 20.2.70.7 NMAC. There is also an outdated reference to “total suspended particulate matter” at Paragraph (1) of Subsection AC of 20.2.70.7 NMAC, which was repealed Nov. 30, 2018 (20.2.3.109 NMAC, Total Suspended Particulates). In addition, the Department must update the regulation to meet current New Mexico Administrative Code requirements per Subsection C of 1.24.11.9 NMAC, and will need to address these changes at the same time the affirmative defense provisions are removed.
The full text of the Bureau’s proposed amendment to Part 70 and related documents are available for download at [ https://www.env.nm.gov/air-quality/proposed-regs/ ] or in hard copy at the Bureau’s main office, 525 Camino de los Marquez, Santa Fe, New Mexico, 87505. Comments concerning the proposed amendments must be received by the AQB by March 3, 2025. Submit comments to [Comment Portal].